COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70126 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WALI H. NAJEEULLAH : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 3, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CP-CR-283301 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Nicholas K. Thomas, Esq. Cuyahoga County Prosecutor 21801 Lakeshore Blvd. By: Rhonda M. O'Neal, Esq. Euclid, Ohio 44123 Assistant Prosecuting Atty. The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: On August 18, 1992, defendant-appellant, Wali Najeeullah, appeared in the Court of Common Pleas of Cuyahoga County to enter pleas in two criminal cases, CR-283301 and CR-277621. Appellant was charged with one count of aggravated robbery in CR-283301, and with six criminal offenses in CR-277621, including one count each of aggravated robbery and felonious assault. These three specified counts all carried firearm specifications. In exchange for a guilty plea in CR-283301, the state of Ohio amended the charge of aggravated robbery to attempted aggravated robbery, and deleted the firearm specification. If appellant entered pleas of guilty to the aggravated robbery and felonious assault charges in CR-277621, the state agreed to request a nolle prosequi on the remaining four counts. Appellant entered guilty pleas as agreed by the parties. The trial court accepted the pleas and thereafter sentenced appellant on October 6, 1992 to the following concurrent terms of imprisonment: five to fifteen years in CR-283301; in CR-277621, eight to twenty-five years for the aggravated robbery and eight to fifteen years for the felonious assault, to be served consecutively to the three-years imposed for the merged firearm specifications. Finally, the trial court found appellant to be in violation of his probation in a third case, CR-252826. On November 12, 1992, appellant filed a pro se motion to withdraw his guilty plea in CR-283301. He basically asserted that he was denied all constitutional rights when "railroaded" and -3- deceived by his defense attorney, the prosecutor and the state of Ohio, not only in that case, but in CR-277621 and CR-252826 as well. However, appellant failed to articulate exactly how he was deceived by these parties except to vaguely intimate that a language barrier kept him from understanding the consequences of his pleas. He also asserted, without specifically claiming innocence, that the charges against him were without merit or truth. The trial court overruled appellant's motion on December 2, 1992. The court found that "defendant was afforded all rights, that there was no 'manifest injustice', and that the court was properly satisfied at all stages that the defendant fully 1 understood the effects of a guilty plea." Appellant appeals from his conviction in CR-283301, assigning error as follows: THE APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION Appellant maintains that the trial court accepted the guilty plea to the charge of attempted aggravated robbery without first complying with the requirements set forth in North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. Specifically, appellant asserts that the trial court failed to 1 Both appellant's appellate counsel and the state set forth in their respective briefs that appellant failed to file a motion to withdraw his guilty pleas. However, the motion and the trial court's ruling on it are contained in the record. Appellant does not specifically challenge this ruling in the present appeal. -4- question him at the plea hearing about the motivation behind the plea, i.e., that while still claiming his innocence, the plea was nonetheless made in order to obtain a more favorable result in CR- 277621. The transcript from appellant's plea hearing reveals that neither appellant nor his counsel placed appellant's protestation of innocence into the record. Appellant first offered a protestation of innocence through his counsel at the sentencing hearing. Despite the absence of any protestation of innocence at appellant's plea hearing, defense counsel stated, in relevant part, at the sentencing hearing: If I may digress a little bit, judge, you did indicate and, of course, we did plead in case number 283301 to the attempted aggravated robbery without the gun specification, and the reason we did that, your Honor -- I'm sure the court was made aware and it was clear at the time of the plea, but I want to refresh the court's recollection today, that the reason we did plea[d] in that case was obviously for consideration for the reduction of the charges in the other case, as well as some consideration at the time of sentencing. *** I told the court at the time -- I told the prosecutor's office at the time that we entered that plea [in CR-283301] that we were confident that we would be able to win that case, and he was not guilty of that case. *** So I want the court to take that into consideration as far as the sentencing in that case, that in that case the plea was entered to save this court trial time and in consideration of the reduced charges on the January 9 incident [leading to CR-277621], as well as hopefully consideration at the time of sentencing. -5- He [appellant] steadfastly maintains his innocence today, and I think the description given by the victim at the time of the January 6 incident [leading to CR- 283301] certainly shows that he was not involved in that matter, but obviously he was involved in the incident that occurred on January 9, a most, obviously, very serious matter. (Emphasis added.) It is interesting to note that appellant's counsel never suggested during the sentencing hearing that the trial court somehow erred in accepting appellant's guilty plea without first questioning him with regard to motive. Appellant's counsel, moreover, revealed appellant's alleged motive at the sentencing hearing--appellant sought leniency in sentencing in CR-277621. Not only did counsel reveal this motive, counsel then requested that leniency. Additionally, contrary to defense counsel's assertions at the sentencing hearing, as set forth supra, the transcript from the plea hearing fails to indicate the trial court's or the state's awareness of appellant's motivation behind entering the plea in CR- 283301. Furthermore, the plea hearing record reveals no link between CR-277621 and CR-283301. The prosecutor stated with regard to the former, that appellant agreed to enter a plea of guilty to two counts in exchange for the dismissal of the remaining counts. As to the latter case, the prosecutor set forth that appellant agreed to enter a plea of guilty to an amended count with the deletion of the specification. Defense counsel then stated at the plea hearing, in pertinent part: -6- Judge, I've had an opportunity to discuss this matter with my client on several occasions, as well as with his mother, who is also in the courtroom today. And it is my understanding that if this Court is willing to accept the plea bargain arrangement we have entered into with the State of Ohio, that my client would withdraw his previously entered plea of not guilty and enter pleas of guilty to the amended counts at set forth by [the prosecutor] previously. I can tell this Court that no threats or promises have been made to my client in order to get him to enter this plea and I believe that his plea will be voluntarily made at this time. Appellant subsequently confirmed his counsel's statements. He also answered in the affirmative when the trial court inquired about his understanding of the waiver of certain constitutional guarantees, the nature of the charges, and the punishment for the crimes. Appellant then entered the guilty pleas, expressing that it was his desire to do so. Initially, the foregoing chronology indicates that appellant did not enter a so-called Alford plea at his plea hearing. Alford guards against a trial court's acceptance of a defendant's guilty plea, entered in combination with a protestation of innocence, without a strong factual basis to support the plea. Alford, 400 U.S. at 38, 91 S.Ct. at 168; State v. Hayes (1995), 101 Ohio App.3d 73, 75; State v. Padgett (1990), 67 Ohio App.3d 332, 337; State v. Casale (1986), 34 Ohio App.3d 339, 340. However, "[t]he basic factual framework [of Alford] is called for so that the court accepting the plea can weigh the appellant's claims of innocence against the appellant's willingness to waive trial." State v. Blankenship (Sept. 30, 1994), Columbiana App. No. 93-C-63, -7- unreported. Absent any claim of innocence at the time of entering the plea, there is no requirement that a factual basis be established for a defendant's plea. Casale, 340, fn. 1; State v. Wright (Mar. 23, 1995), Cuyahoga App. No. 66975, unreported; State v. Briscoe (Mar. 15, 1995), Hamilton App. No. C-930909, unreported; State v. Johnson (Dec. 13, 1994), Mahoning App. No. 93 C.A. 15, unreported; Blankenship; State v. Cookson (June 1, 1993), Montgomery App. No. 13368, unreported; State v. Fuller (Nov. 16, 1990), Clark App. No. 2223, unreported. Furthermore, in State v. Piacella (1971), 27 Ohio St.2d 92, the Supreme Court of Ohio recognized that guilty pleas may nonetheless be accepted when entered with claims of innocence. This recognition coincides with Alford's premise that defendants can intelligently conclude that their interests require guilty pleas. See State v. Holder (1994), 97 Ohio App.3d 486; State v. Stevens (Jan. 4, 1995), Tuscarawas App. No. 94AP070044, unreported; Cookson. The Piacella court thus stated: Where the record affirmatively discloses that: (1) defendant's guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and (5) defendant was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntarily and intelligently made. Id., syllabus. The facts of the present case fall squarely within the guidelines of Piacella. Appellant was represented by counsel at -8- the time he entered his pleas, which were made without any indication of coercion, deception or intimidation. Even assuming appellant entered the plea in CR-283301 to receive leniency in sentencing in CR-277621, Piacella still controls this situation as the record reveals appellant understood the nature of the charges and the consequences of entering guilty pleas. In conclusion, the trial court properly accepted appellant's guilty plea for two reasons. First, appellant failed to invoke Alford's protections by entering the plea without a protestation of innocence. Second, even accepting such protestation, the record demonstrates that the plea was voluntarily and intelligently entered in accordance with Piacella. Since the trial court otherwise complied with Crim.R. 11(C), and the record fails to disclose any evidence that appellant did not voluntarily, knowingly, and intelligently waive his constitutional rights, the assignment is without merit. Judgment affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, C.J., AND JOSEPH J. NAHRA, J., CONCUR. JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .