COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70203 CITY OF GARFIELD HEIGHTS : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM A. GRAY : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 20, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE GARFIELD HEIGHTS MUNICIPAL COURT CASE NO. 96-TRD-108AB JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JAMES J. McGRATH (#Z00070202E) Prosecutor 5555 Turney Road Garfield Heights, Ohio 44125 For Defendant-Appellant: DOUGLAS C. BLACKBURN (#0002756) Direnfield, Greene, & Blackburn 55 Public Square, Suite 1640 Cleveland, Ohio 44113 - 2 - PER CURIAM: Defendant-appellant William A. Gray ("appellant") appeals his conviction for reckless operation, in violation of R.C. 4511.20; and public indecency, in violation of R.C. 2907.09 (A)(1), and raises the following assignments of error: I. THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA WITHOUT FIRST INFORMING HIM OF THE MEANING AND EFFECT OF A PLEA OF GUILTY, NOT GUILTY, OR NO CONTEST. II. THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S PLEA OF GUILTY WITHOUT FIRST ADVISING HIM OF HIS RIGHTS PURSUANT TO CRIMINAL RULE 11 AND ASCERTAINING THAT HE WAS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THOSE RIGHTS. III. THE TRIAL COURT ERRED IN ACCEPTING THE DEFENDANT'S PLEA OF GUILTY WITHOUT RECEIVING AN EXPLANATION OF THE CIRCUMSTANCES OF THE OFFENSE FROM THE PROSECUTION, TOGETHER WITH ANY STATEMENT OF THE ACCUSED. IV. THE TRIAL COURT ERRED IN ACCEPTING THE DEFENDANT'S PLEAS OF GUILTY AFTER DEFENDANT'S CLAIMS OF INNOCENCE WITHOUT DETERMINING THERE IS A FACTUAL BASIS FOR THE PLEAS AND WITHOUT INQUIRING INTO AND SEEKING TO RESOLVE THE CONFLICT BETWEEN THE WAIVER OF TRIAL AND THE CLAIM OF INNOCENCE. Finding appellant's appeal lacks merit, the judgment of the trial court is affirmed. I. On January 4, 1996, Officer Bailey of the Garfield Heights Police Department observed appellant travelling eastbound on Granger Road at a high rate of speed. After turning right onto - 3 - Turney Road, Officer Bailey further observed appellant continuing to drive at a high rate of speed, weaving between lanes, and driving left of center. Officer Bailey subsequently stopped appellant. Appellant became argumentative, and after being advised several times to remain in his vehicle, exited from his vehicle. Officer Bailey placed appellant in his police car, issued him a citation, and subsequently released him, at which time appellant proceeded to urinate in the middle of the road. Appellant was placed under arrest for reckless operation, in violation of R.C. 4511.20, and public indecency, in violation of R.C. 2907.09 (A)(1). On January 16, 1996, appellant appeared pro se in Garfield Heights Municipal Court. Appellant plead guilty to both charges. After accepting his plea, the trial court sentenced appellant on the reckless operation charge to one hundred eighty (180) days in jail, with one hundred fifty (150) days suspended, and to a fine of one thousand dollars ($1,000.00), suspending nine hundred dollars ($900.00) of the fine. The trial court also sentenced appellant on the public indecency charge to thirty days in jail, and to a fine of two hundred and fifty dollars ($250.00), suspending the entire fine. On January 26, 1996, the trial court, in a nunc pro tunc entry, amended appellant's sentence. In particular, the trial court found that it had improperly sentenced appellant to thirty days in jail on the reckless operation charge. Subsequently, - 4 - appellant's amended sentence required appellant to pay a $100.00 fine with regard to the reckless operation charge. Furthermore, appellant was sentenced to serve thirty days in jail on the public indecency charge and was also required to be on inactive probation for one year. II. In his first and second assignment of error, appellant contends that the trial court erred in failing to advise him of his constitutional rights pursuant to Crim. R. 11 when it accepted his guilty pleas on both charges. In particular, appellant argues that the trial court record is void of any discussion between the trial court and himself where appellant was informed of the constitutional rights he would be waiving by entering a plea of guilty. Furthermore, appellant contends that he did not voluntarily, knowingly and intelligently waive his constitutional rights. Crim. R. 11(E) states, in pertinent part: In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty. * * * The trial court, therefore, is required to inform the defendant of the effect of a plea of guilty, no contest, and not guilty, including the various rights the defendant may be waiving. Toledo v. Chiaverin (1983), 11 Ohio App.3d 43; City of Maple Heights v. Molton (January 28, 1993), Cuyahoga App. No. 61888, unreported. - 5 - Herein, appellant contends that the trial court failed to define and explain the meaning and effect of various pleas available to the defendant. Furthermore, appellant asserts that there was no affirmative showing on the record that the court explained the constitutional rights to be waived and that any waiver by a guilty or no contest plea was not intelligible. In the case sub judice, the record reveals that the following discussion took place between the trial court and appellant. THE DEFENDANT: What if I plead guilty? THE COURT: Pardon? THE DEFENDANT: If I plead guilty can I - - if I plead guilty can I get it over with today? THE COURT: Yes, if your plea is guilty you can get it over with today. THE DEFENDANT: Well, yeah, let's try that. What'cha going to do? THE COURT: If you plead guilty, you are giving up your right to a trial, a Jury trial. You are giving up your right to an attorney. You are giving up your right to have the City of Garfield Heights prove that you are guilty of this charge. You are giving up your right to bring witnesses here for your defense, and you are giving up your right to remain silent. Is that what you want to do, sir? (Tr. 4). Literal compliance with Crim. R. 11 is certainly the preferred practice, but the fact that the trial judge does not do so does not require vacation of appellant's guilty pleas if the reviewing court determines that there was substantial compliance. State v. Nero (1990), 56 Ohio St.3d 106, 108. Substantial compliance means that - 6 - under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Id., citing State v. Stewart (1977), 51 Ohio St.2d 86, 92-93; State v. Carter (1979), 60 Ohio St.2d 34, 37. Furthermore, appellant must prove prejudicial effect in asserting that he did not knowingly, intelligently, and voluntarily waive his constitutional rights. Id. "The test is whether the plea would have otherwise been made." Id. In the present case, appellant indicated to the trial court that he wanted to enter a plea of guilty to the charges of reckless operation and public indecency. Directly following appellant's request to plead guilty, the trial court informed appellant of the constitutional rights which he would be waiving. The trial court then asked appellant: "Is that what you want to do, Sir? (Tr. 4). Appellant responded: "There wasn't no witnesses out there. There wasn't nothing but me and him. There wasn't no witnesses. How much is it, though before I do? Can I change it?" (Tr.4). After informing appellant that he could not go back later and change his plea, the trial court again asked appellant if he was entering a guilty plea. Appellant responded: "Yeah. Let's go -- yeah." (Tr. 5) A complete review of the record before this court reveals that the trial court informed appellant of the charges brought against him and the possible sentences and fines to be imposed with regard to each charge. The trial court subsequently provided the appel- - 7 - lant with an explanation regarding the constitutional guarantees which he would be waiving by entering a guilty plea. Though not perfect, the trial court did substantially comply with mandates set forth in the Criminal Rules. Furthermore, based on the discussion which had taken place between appellant and the trial court prior to appellant entering his plea, it is apparent that appellant knowingly, voluntarily and intelligently waived his constitutional rights. Moreover, appellant failed to offer any evidence that he had been prejudicially affected by the explanation given by the court. A complete review of the record before this court reveals that the trial court's explanation to appellant regarding the constitu- tional guarantees which he was waiving substantially complied with the mandates set forth in Crim. R. 11(E). Furthermore, appellant failed to offer any evidence that he had been prejudicially effected by the explanation given by the court. Accordingly, appellant's first assignment of error is not well taken. III. In his third error, appellant contends that the trial court improperly accepted his guilty plea without first receiving an explanation of the circumstances of the offense. In particular, appellant asserts that the record fails to demonstrate that the trial court called for the required explanation of circumstances as set forth in R.C. 2937.07. - 8 - R.C. 2937.07 states, in pertinent part, the following: Upon a plea of guilty being received the court or magistrate shall call for explanation of circumstances of the offense from the affiant or complainant or his representatives, and after hearing the same, together with any statement of accused, shall proceed to pronounce sentence or continue the matter for the purpose of imposing sentence or admitting the defendant to probation. In the case sub judice, the trial court informed the appellant of the charges brought against him, the possible sentences and fines to be imposed with regard to each charge, and the constitutional rights which appellant would be waiving by entering a plea of guilty to both charges. Appellant, however, after being informed by the trial court of the rights which he would be waiving did, in fact, plead guilty to both charges. Based upon the discussion which had taken place between appellant and the trial court, the court accepted appellant's plea. Prior to the imposition of sentencing by the court, appellant was given the opportunity to speak. In particular, the trial court stated: THE COURT: Is there anything you want to say before I pass sentence? THE DEFENDANT: Well, now, your Honor, you know, it was like, I was not misoperating my vehicle, because when he stopped me, it was kind of, you know, the snow was kind of thick on the ground, and you had - - you had just tire tracks on the road, you didn't really have a lane, you had tire tracks. And when he pulled up behind me, I thought he wanted to get around me, so I tried to pull over, so I was going - - I was going to let him by. And when I pulled over, he put his lights on and stopped me. And I was wondering what was going on, and I told him I had to use the bathroom, you know, I had - 9 - to use the restroom, and I asked him what was going on. And he said I was reckless operating. And I was not speeding, I was not speeding at the time. Following appellant's explanation of the circumstances, the trial court proceeded to pronounce sentence. The Ohio Supreme Court in Ohio v. Waddell (1995), 71 Ohio St.3d 630, set forth that where an accused pleads guilty to the charges brought against him, the court is required to consider the accused's statement. (R.C. 2937.07, construed). Id. at syllabus. In the case sub judice the trial court complied with the mandates set forth in R.C. 2937.07. In particular, the trial court, after receiving appellant's guilty plea, asked appellant whether or not he had anything to say. After allowing appellant to explain the circumstances, the trial court proceeded to sentence appellant. Accordingly, appellant's third assignment of error is overruled. IV. In his fourth assignment of error raises the argument that the trial court erred when it failed to resolve the conflict between appellant's claim of innocence and subsequent guilty plea. The Supreme Court in State v. Post (1987), 32 Ohio St.3d 380, addressed the issue of whether guilty pleas coupled with claims innocence should be accepted without a factual basis for the plea. The Post court, after reviewing the decision set forth by the United States Supreme Court in North Carolina v. Alford (1970), 400 U.S. 25, 38, found no constitutional bar to accepting a guilty plea - 10 - in the face of an assertion of innocence provided a defendant voluntarily, knowingly, and understandingly consents to sentencing on a charge. Post, 32 Ohio St.3d at 387; Alford, 400 U.S. at 37- 38. Further, no constitutional error was found in accepting a guilty plea which contained a protestation of innocence, if the defendant intelligently concludes that his interests require entry of a guilty plea and if the record before the court contains strong evidence of guilt. Id. In the case sub judice appellant weighed the pros and cons of pleading guilty. Appellant was informed by the trial court of the constitutional rights which he would be waiving; and in light of that knowledge, made the decision to plead guilty to the charges against him. Furthermore, after asking the court if he could later change his plea, appellant was informed by the trial court that that would not be a possibility. Thus, it appears that appellant intelligently concluded that his interests required him to enter a guilty plea. Accordingly, appellant's fourth assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Garfield Heights Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, CHIEF JUSTICE JOSEPH J. NAHRA, JUDGE DAVID T. MATIA, J. DISSENTS (PER CURIAM; ONE JUDGE DISSENTS) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .