COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70270 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION GREGORY HOUSTON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 14, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-315331 JUDGMENT : AFFIRMED IN PART AND : VACATED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Daniel L. Schiau Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Gregory Houston, Pro Se North Central Correctional Institute - Morrow-A No. 301430 P.O. Box 1812 Marion, Ohio 43301-1812 -2- NAHRA, P.J.: On October 24, 1994, a true bill indictment was filed against appellant, Gregory Darnell Houston, charging two counts, aggravated burglary in violation of R.C. 2911.11 and grand theft in violation of R.C. 2913.02. On December 12, 1994, with the presence of counsel, Houston entered a plea of guilty to attempted aggravated burglary to an indictment amended by the trial court, the charge of grand theft was dismissed by the court. On December 21, 1994, a journal entry stated that Houston pled guilty to attempted burglary, in violation of R.C. 2911.12 and R.C. 2923.02, and to grand theft, in violation of R.C. 2913.02. On December 29, 1994, with the presence of counsel, Houston was sentenced to four to fifteen years imprisonment, ordered to pay $10,000 in restitution to the Boy Scouts of America, a charity designated by the victims, and had his probation in two prior cases revoked. At the sentencing, the court advised Houston that it would consider a motion for shock probation after 6 months. On January 3, 1995, an entry was journalized by the court indicating Houston previously entered a plea of guilty to attempted burglary and grand theft and that he was sentenced to four to fifteen years for attempted burglary and to six months for grand theft to be served concurrently, that he was ordered to pay $10,000 restitution to the Boy Scouts of America, and that his probation in case numbers CR-27349 and CR-304437 was revoked. -3- On January 31, 1995, the court corrected its journal entry to indicate Houston entered a plea of guilty to attempted aggravated burglary in violation of R.C. 2911.11 and R.C. 2923.02. On August 21, 1995, appellant filed a motion for shock probation. On September 22, 1995, the state filed a brief in opposition and argued that the court was without jurisdiction to grant probation because Houston was ineligible for probation at the time of sentencing. On October 16, 1995, the court denied Houston's motion. On February 27, 1996, appellant filed a notice of appeal and a motion for leave to file a delayed appeal. Appellant indicated he was proceeding pro se and did not move for appointment of counsel. On March 25, 1996, appellant's motion was granted. On September 26, 1996, the state moved for leave to file an answer and for oral argument. On October 4, 1996, appellee's motion for leave to file its answer was granted; its motion for oral argument was denied. I. Appellant assigned five errors for review. These will not be addressed in order. Appellant's first and fourth assignments of error address the court's hearing and acceptance of appellant's guilty plea and state: 1. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN IT CONSTRUCTIVELY AMENDED THE INDICTMENT, WITHOUT STATING WHAT WAS DELETED FROM, AMENDED INTO, THE INDICTMENT, WHERE AFTER THE AMENDING AND DELETINGS, THE ORAL RECITATION FROM THE COURT AS TO WHAT THE COUNTY, STATE OR CITY WITHIN WHICH THE OFFENSE OCCURRED, CAUSING A VIOLATION OF THE GRAND JURY CLAUSE TO THE UNITED STATES CONSTITUTION. (SIC.) -4- 4. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY OR INTELLIGENTLY ENTERED, BECAUSE THE TRIAL COURT DID NOT SUBSTANTIALLY COMPLY WITH CRIMINAL RULE, 11 (C), OF THE OHIO RULES OF CRIMINAL PROCEDURE. On December 12, 1994, Houston, represented by counsel, entered a guilty plea to attempted aggravated burglary in an indictment amended by the court. Houston argues that his plea was involuntarily entered because he did not understand the nature of the charges against him and that the indictment, as amended by the court, was defective because it lacked a jurisdictional statement. When accepting a plea of guilty in felony cases, Crim.R. 11(C) provides that the court shall personally address the defendant and shall not accept the plea without: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process ***. It is evident from the transcript that appellant knowingly, voluntarily, and intelligently entered a guilty plea. Prior to the court accepting appellant's plea, appellant asked for and received clarification of the elements of burglary. Appellant states that the court did not comply with Crim.R. 11(C). However, in his brief, appellant states that the court "addressed appelllant (sic) personally and not only informed him of his rights, but also -5- informed him - from actually reading the indictment to him - what he was pleading to." Appellant argues that the court violated his constitutional rights by not including a jurisdictional statement when it orally amended the indictment during a hearing in which he changed his plea. However, R.C. 2941.08 provides in part that: An indictment or information is not made invalid, and the trial, judgment, or other proceedings stayed, arrested, or affected: *** (F) For want of an allegation of the time or place of a material fact when the time and place have been once stated therein. The original indictment stated in part "that the above named defendant(s), on or about the date of the offense set forth above, in the County of Cuyahoga, ***." (Emphasis added.) As the jurisdiction of the court was once stated, the court upon amendment was not required to reiterate it. R.C. 2941.08(F). Appellant's first and fourth assignments of error are overruled. II. Appellant's arguments in his second and third assignments of error overlap and will be addressed together. Appellant's second and third assignments of error state: 2. THE PROSECUTORIAL MISCONDUCT IN THIS CASE, UNDER THE TOTALITY OF THE CIRCUMSTANCES AND GIVEN ITS CUMULATIVE EFFECT, PARTIALLY CAUSED APPELLANT TO PLEA TO AND SENTENCED ON AN OFFENSE NOT CONTAINING ANY OF THE ELEMENTS REQUIRED TO SUSTAIN A CONVICTION, UNDERMINING THE FUNDAMENTAL FAIRNESS CLAUSE OF THE UNITED STATES CONSTITUTION AND IN VIOLATION OF THE PROSECUTOR'S SWORN DUTY TO ASSIST THE COURT IN THE ADMINISTRATION OF JUSTICE. (SIC.) -6- 3. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHICH RESULTED IN SUBSTANTIAL PREJUDICE TO HIM, BECAUSE OF COUNSEL'S FAILURE TO INVESTIGATE THE CASE AND ADEQUATELY PREPARE FOR TRIAL OR PLEADING, FAILING TO PROFFER ON THE RECORD THAT THERE MAY BE A CONFLICT OF INTEREST BETWEEN THE COURT, PROSECUTOR AND THE ATTORNEY WHOM WAS THE HOME OWNER OF THE HOME WHERE-IN THE ALLEGED BURGLARY OCCURRED, FOR WAIVING A PROBABLE CAUSE HEARING ON THE PROBATION VIOLATIONS WHEN THE TIME HAS EXPIRED FOR SAME, FAILING TO FILE FOR PROBATION, ALTHOUGH HE ACCEPTED THE COURT'S ORDER TO SO FILE AT SENTENCING. (SIC.) As error, appellant claims prosecutorial misconduct and ineffective assistance of counsel at both his plea and sentencing hearings and in the proceedings regarding his motion for probation. Appellant has not demonstrated any prosecutorial misconduct. If appellant can demonstrate that he received ineffective assistance of counsel in entering his guilty plea, and that but for that ineffective assistance he would have proceeded to trial, then this court would be required to reverse appellant's sentence and remand this matter to the trial court to allow appellant to withdraw his plea. Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366; State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715. "A failure by counsel to provide advice (which impairs the knowing and voluntary nature of the plea) may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve the predicate for setting aside a valid plea." State v. Barnett (1991), 73 Ohio App.3d 244, 248, 596 N.E.2d 1101, 1103 (quoting United States v. Broce (1989), 488 U.S. 563, 574, 109 S.Ct. 757, 765.) -7- In reviewing the claim of ineffective assistance of counsel at the pleading stage, a court must apply the two prong test of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. Xie, 62 Ohio St.3d at 524, 584 N.E.2d at 718. In Xie, the Supreme Court of Ohio stated that a defendant must first show that counsel's performance was deficient, and then show that "but for counsel's errors, he would not have pleaded guilty." Id. (quoting Hill, 474 U.S at 59, 106 S.Ct. at 370). Appellant bears the burden of proof in demonstrating ineffective assistance of counsel. State v. Smith (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128. Appellant claims that counsel did not inform him of the elements of burglary and that as such he was not informed of a defensible position of the crime of burglary. However, appellant was informed of the elements of the crime of burglary by the court. Appellant also claims that if counsel informed him he had a defensible position to burglary he would have proceeded to trial. Appellant's conversations with counsel are beyond the scope of the record on appeal, and this court cannot review his claim's validity. See Barnett, 73 Ohio App.3d at 249; 596 N.E.2d at 1103. This claim is properly made in a motion for postconviction relief. See, id; see, also, R.C. 2953.21. Accordingly, appellant's second and third assignments of error are overruled. -8- III. Appellant's fifth assignment of error states: 5. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN THE SECOND RETAINED COUNSEL FILED A PROCEDURAL INCORRECT MOTION FOR SUPER-SHOCK PROBATION WITHOUT THEREIN MENTIONING THE THE STATUTORIAL LANGUAGE OR THE STATUTE INVOKING THE TRIAL COURT'S JURISDICTION TO CONSIDER SUCH MOTION, CAUSING THE TRIAL COURT TO ABUSE ITS DISCRETION WHEN IT CONSIDERED THE MOTION, INSTEAD OF WITHDRAWING SAME FOR RE-FILING CORRECTLY. (SIC.) The decision to grant or deny shock probation is within the discretion of the trial court and, absent a statutory or constitutional violation, it is not an appealable order. See State v. Boyd (1994), 95 Ohio App.3d 679, 643 N.E.2d 581; State v. Hawk (1992), 81 Ohio App.3d 296, 610 N.E.2d 1082. Appellant contends that his constitutional right to effective assistance of counsel was violated upon his motion for probation. Even if appellant had received ineffective assistance, which this court is not deciding, he would still not be entitled to relief. At the time of his motion, appellant was a repeat offender as defined by R.C. 2929.01 and the court was without jurisdiction to grant probation. See R.C. 2951.02(F) (effective November 15, 1995); R.C. 2951.011 (Application of Chapter 2951, July 1, 1996 amendments). Accordingly, appellant's fifth assignment of error is overruled. IV. When a criminal defendant appears pro se, the reviewing court should examine the record for reversible error beyond the specific assignments alleged by appellant. See, e.g., State v. Perry -9- (1967), 10 Ohio St.2d 175, 178 n.1, 226 N.E.2d 104, 107. In this case, the court dismissed the second count of the indictment, grand theft in violation of R.C. 2913.02. The court erred by sentencing the appellant to six months for this offense. Accordingly, appellant's sentence of six months incarceration for grand theft, R.C. 2913.02 is vacated. Judgment affirmed in part and vacated in part. -10- 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 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. KARPINSKI, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE 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 .