COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70619 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOAO TEIXEIRA : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-315719. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Edward F. Feran Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Nicholas K. Thomas, Esq. 21801 Lakeshore Boulevard Euclid, Ohio 44123 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant Joao Teixeira appeals his conviction for drug trafficking in violation of R.C. 2925.03(A)(6), possession of cocaine in the amount equal to or exceeding three times the bulk amount. The appellant was sentenced to a term of four to fifteen years incarceration, plus an additional three years incarceration to be served prior to and consecutive with the four to fifteen year term. The appellant and his co-defendant, Ajmal Kazmi, were indicted on two counts of drug trafficking pursuant to R.C. 2925.03. The record demonstrates that as a part of an arrangement between the State and the defendants, the second count of the indictment was nolled, and the first count of drug trafficking was amended to reduce the charge from a first degree felony to a second degree felony. This agreement was explained to the trial judge by the prosecutor: The amended count reduces it from a felony of the first degree to a felony of the second degree. The punishment is reduced, punishable by 2, 3, 4 or 5, up to 15 years incarceration. Three years of incarceration, Judge, is actual. - 3 - The plea of guilty is not probationable; they're not eligible for early release programs, no shock or supershock. (T. 5.) The defense counsel also informed the judge regarding his understanding of the plea agreement: MR. BRUNER: Your Honor, I had extensive discussions with Mr. Feran and my clients, as well as extensive discussions with Winston Grays about this case. At this time my clients want to withdraw their pleas of not guilty and enter a plea of guilty to count two. My understanding in return for the plea, the State will agree to a sentence of 3 to 15 years, 3 to 15 years, and 3 years is nonprobationable. It's a three year mandatory sentence based on the amended count two. (T. 6-7.) The trial court inquired "are you saying there is an agreement between the prosecutor and the defense counsel to a 3 to 15 year sentence?" (T. 7.) The prosecutor responded that there was no objection to the defendants receiving minimum sentences. The defense counsel stated that, based upon his discussion with the supervising prosecutor, there was an agreed sentence (T. 7). The court clearly informed the appellant that the court would take into consideration the agreement between the State and the defense, but that the court was required to make its own determination and was not bound by the agreement. In addition, the court explained to the appellant that he had a right to trial by jury; a right to cross-examine all witnesses; a right to bring witnesses on his own behalf; a right to require the - 4 - State to prove guilt beyond a reasonable doubt; and that he could not be forced to testify against himself. The appellant responded that he understood that by entering a plea these rights were waived, and that no threats or promises were made to him. The court then informed the appellant as to his possible sentence: THE COURT: The charge of drug trafficking in violation of 2925.03(A)6 which (sic) you pled guilty is a felony of the second degree, punishable by a possible term of incarceration of 2, 3, 4, 5 years, to a maximum of 15 years, with 3 years of that sentence being an actual sentence; meaning during that time you serve three years you are not eligible for shock probation, probation, or any type of early release. Do you understand that? (T. 12.) The appellant indicated that he understood that the fine of at least $5,000 would be imposed, but that the fine could be as much as $7,500. The appellant also understood that the offense was non- probationable. Following this discussion, the appellant entered his plea of guilty (T. 14). The court nolled count one of the indictment and referred the appellant and his co-defendant to the Probation Department for completion of the presentence investigation reports. The court then stated: Today I want -- you will have your urine tested for all controlled substances, and then you will be interviewed by the Probation Department for completion of the presentence investigation report. It's up to you to be honest and cooperative with them. Any failure on your part will result in the Court imposing maximum - 5 - term of incarceration, which is 5 to 15 plus 3 years actual, depending how the Court of Appeals is doing that, which could turn out to 8 years. So it will be a 3 year actual sentence. (T. 15.) At the time of sentencing the court imposed a term of incarceration of four to fifteen years and imposed a term of three years actual incarceration to be served prior to and consecutive with the sentence of four to fifteen years incarceration (T. 20). The appellant sets forth one assignment of error: THE APPELLANT'S PLEA WAS NOT VOLUNTARILY AND KNOWINGLY MADE WHICH IS IN VIOLATION OF THE APPELLANT'S SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. The appellant argues that the trial court failed to substantially comply with Crim.R. 11 when it failed to inform him of the maximum sentence. The appellant asserts that he did not enter a voluntary and knowing plea because the court failed to make clear that the mandatory three-year term of actual incarceration was separate from the indefinite general sentence. The appellee merely points out that the trial court properly sentenced the appellee. When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution. State v. Engle (1996), 74 Ohio St.3d 524, citing to Kercheval v. United States (1927), 274 U.S. 220, 223; - 6 - Mabry v. Johnson (1984), 467 U.S. 504, 508-509; Boykin v. Alabama (1969), 395 U.S. 238; State v. Kelly (1991), 57 Ohio St.3d 127. The appellant was convicted for a violation of R.C. 2925.03(A)(6) which prohibits a person from knowingly "possessing a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount." R.C. 2925.03(C)(6) declares a violation of R.C. 2929.03(A)(6) to be aggravated trafficking and a felony of the second degree. R.C. 2929.11(B)(5) requires that a second degree felony be punished by a minimum term of incarceration of 2, 3, 4, or 5 years and a maximum term of incarceration of 15 years. Unless a defendant has one of the enumerated prior convictions set forth in the statute, R.C. 2925.03(C)(6) imposes a term of actual incarceration of three years for a violation of R.C. 2925.03(A)(6). In State v. Arnold (1991), 61 Ohio St.3d 175, syllabus, the court held that the sentencing schemes in both R.C. 2925.03 and R.C. 2929.11 must be applied. The court did not address whether or not the sentences must be served consecutively. Cf. State v. Odubanjo (1992), 80 Ohio App.3d 329. Indeed, this court has determined that there is no requirement that the terms be served consecutively, State v. Castellanos (Sept. 14, 1995), Cuyahoga App. No. 67304, unreported, but that the trial court may elect to do so in its discretion, State v. Martinez (March 2, 1995), See also State v. Oritz (Sept. 21, 1995), Cuyahoga App. No. 68454, - 7 - unreported; State v. Brown (Dec. 1, 1994), Cuyahoga App. No. 67017, unreported; and State v. Nunn (August 25, 1994), Cuyahoga App. No. 66221, unreported. In the case sub judice, while the statements of defense counsel and the prosecutor are studies in imprecision, the language used by the court in its discussion with the appellant prior to accepting the plea, indicated that the mandatory three-year sentence required under R.C. 2925.03(C)(6) was included in the indefinite general sentence. The court's comments during this discussion precluded the appellant from entering a voluntary, intelligent and knowing plea. This court must further point out, that after accepting the plea, the trial court further addressed the issue of sentencing. At this juncture, the trial court alluded to the fact that the mandatory sentence and the indefinite sentence might be consecutive, but the court then stated "depending how the Court of Appeals is doing that." If, as apparent, the trial court was unclear as to the limits of its discretion in imposing the appellant's sentence, how then could it have been clear to the defendant as to the maximum sentence he might receive? The appellant's assignment of error is well taken. Judgment reversed and remanded. - 8 - This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate issue out of this Court directing said 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. JAMES D. SWEENEY, P.J. PATRICIA A. BLACKMON, J. JAMES M. PORTER, J. 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 .