COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68399 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JEFFREY L. HOWARD : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 27, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-313087 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES STEPHEN L. MILES, ESQ. Cuyahoga County Prosecutor 20800 Center Ridge Road JOSEPH V. HOFFER, Assistant Suite 217 Prosecuting Attorney Rocky River, Ohio 44116 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Jeffrey L. Howard appeals from his conviction following a guilty plea to four counts of attempted rape (R.C. 2923.02/2907.02) of his nine year old daughter. Defendant contends the trial court erred in failing to advise him of the maximum penalties he was facing by a guilty plea and in failing to grant him a hearing on his post-sentencing motion to withdraw his guilty plea. We find no error and affirm the judgment below. On August 15, 1994, defendant was indicted on five counts of rape of a child under thirteen years of age with aggravated felony specifications. At the first trial on the charges, the jury was unable to reach a verdict and a mistrial was declared. On October 26, 1994, a jury was selected for a second trial on the same charges. Prior to the jury selection, the defendant was informed of a possible plea bargain and sentencing. During the morning hearing, the defendant was informed that his sentences on four attempted rape charges could be run concurrent or consecutive by the judge during sentencing. As the prosecutor stated, "Then this Court could decide whether to sentence those all together or one right after another, however the Court would decide to do that." (Tr. 7). After lunch, a jury was selected. Counsel for the defense then indicated that defendant wanted to enter a guilty plea. The defendant was informed by the prosecution that each count carried a possible sentence of 3, 4, 5, 6, 7, 8 to 15 years. (Tr. 4-5). - 3 - The court then informed the defendant that he had a right to a trial; that he was presumed innocent until proven guilty beyond a reasonable doubt; that he had the right to present witnesses and that he could not be compelled to testify; that he could remain silent without comment by the prosecution or consideration by the jury in determining guilt or innocence; that he had the right to an attorney paid at state's expense; the right to have witnesses against him testify in his behalf; and the right to subpoena witnesses to testify to his defense. (Tr. 6-8). The court further informed defendant that he was pleading to a charge of attempting to engage in sexual conduct with Latoya Howard, being a child under the age of 13 years. Defendant stated he understood that charge. (Tr. 9-10). Then defendant was informed by the court that he faced 3, 4, 5, 6, 7, 8 to 15 years incarceration with a fine of up to $7,500 on each of the counts. During these conversations and after being informed of the possible sentences, the defendant stated that he understood the sentence for each charge. (Tr. 10-13). Defendant also indicated that there had been no promises made to him regarding the sentence the court would impose; and that his plea was made freely and voluntarily. (Tr. 13). Defendant also stated that he was satisfied with the work of his attorney; when asked whether his attorney did anything wrong, defendant stated that "I don't know what's what, so I really couldn't say;"; but did - 4 - acknowledge that he had no "beef" with his attorney and that he did not force him to plea. (Tr. 13-14). On November 4, 1994, defendant was sentenced to a maximum consecutive term on the four counts of attempted rape. Prior to sentencing, defense counsel indicated that there was a social worker who wanted to request a continuance to examine the defendant, but she was not present. Defense counsel did not request a continuance and none was granted. After sentencing, the court indicated that it would consider any evidence in mitigation and suspended execution of the sentence for thirty days to hear any mitigating circumstances. (Tr. 25). On December 16, 1994, defense counsel appeared and indicated that he had no evidence to present to the court in mitigation. Thereafter, on December 23, 1994, the defendant's sentence was ordered into execution. We will address defendant's assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN ACCEPTING A PLEA OF GUILTY FROM THE APPELLANT WHEN THE APPELLANT WAS NOT FULLY INFORMED OF THE MAXIMUM PENALTY OF SAID PLEA PURSUANT TO CRIM.R. 11(C)(2). Defense counsel argues that the trial court failed to inform defendant of the aggregate penalty for the charges to which he was pleading guilty; i.e., that he was facing a potential consecutive sentence of thirty-two to sixty years and therefore defendant was not informed of the maximum penalty in this case. We find no merit - 5 - to this assignment of error and hold that defendant was thoroughly advised pursuant to Crim.R. 11(C)(2). Defendant was informed of the possible sentence on each and every count to which he was about to plead guilty. The defendant was informed that each attempted rape charge carried a sentence of 3, 4, 5, 6, 7, 8 to 15 years of incarceration. The defendant stated on the record that he understood the sentence for each charge. It is true that the trial court did not inform the defendant of the aggregate sentence that could be imposed if the defendant was sentenced consecutively. The Ohio Supreme Court in State v. Johnson (1988), 40 Ohio St.3d 130, however, addressed this issue and held in its syllabus as follows: Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the plea involuntary. See, also, State v. Flint (1986), 36 Ohio App.3d 4, 9-10; State v. Nunn (Sept. 21, 1995), Cuyahoga App. No. 67755, unreported; State v. Roberson (Jan. 30, 1995), Cuyahoga App. No. 66523, unreported; State v. McAffee (April 28, 1994), Cuyahoga App. No. 65291, unreported; State v. Johnson (March 4, 1993), Cuyahoga App. No. 61904, unreported. Therefore, there was no error in the trial court's failure to inform the defendant of the total possible consecutive sentence that could be imposed. - 6 - Defendant also contends that the trial court failed to inquire about defendant's age, educational background and whether he was under the influence of drugs or alcohol in determining whether defendant was voluntarily entering his pleas. Crim.R. 11(C)(2) does not require such an inquiry. State v. Day (1976), 50 Ohio App.2d 315,316; State v. Manos (Feb. 10, 1994), Cuyahoga App. No. 64616, unreported. There is no easy or exact way to determine what someone subjectively understands. If a defendant receives proper information, it can ordinarily be assumed he understood that information. State v. Carter (1979), 60 Ohio St.2d 34, 38. Furthermore, defendant does not offer any evidence or support for a theory that such inquiries would have produced a different result. State v. Manos, supra. The trial court did not substantially prejudice this defendant during his plea. The record substantiates that there was adequate compliance with defendant's Crim.R. 11 rights. Under the totality of the circumstances, he subjectively understood the implications of his plea and his waiver of rights. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT HOLDING A HEARING ON THE APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA. Defense counsel correctly states that the "trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea" prior to sentencing. State v. Xie (1992), 62 Ohio St.3d 521, paragraph one - 7 - of syllabus. Xie supports that argument but only when the motion is made prior to sentencing. In this case, the motion was made after sentencing, but before the sentence was executed. At the sentencing hearing, the court sentenced the defendant and then gave the defense counsel thirty days to investigate mitigating evidence, while staying execution of the sentence. Defendant's motion to withdraw the plea was made after he was sentenced. Therefore, the hearing does not have to be freely given. Generally, a hearing on a post-sentence motion to withdraw a plea is only required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn. State v. Nathan (1995), 99 Ohio App.3d 722, 725; State v. Hamed (1989), 63 Ohio App.3d 5, 7; State v. Legree (1988), 61 Ohio App.3d 568, 574; State v. Blatnik (1984), 17 Ohio App.3d 201, 204. Crim.R. 32.1 permits a post-sentence motion to withdraw a guilty plea only to correct a manifest injustice. State v. Xie (1992), 62 Ohio St.3d 521, 526; State v. Grisby (1992), 80 Ohio App.3d 291, 299. The burden of establishing a manifest injustice is upon the defendant. State v. Legree, supra at 572; State v. Grisby, supra at 299. In the case at bar, there is no showing of a manifest injustice. It is well established that a mistaken belief as to the consequences of the plea is insufficient to withdraw such a plea. State v. Sabatino (1995), 102 Ohio App.3d 483, 486; State v. Hunt - 8 - (August 8, 1996), Cuyahoga App. No. 69726, unreported at 8. As this Court in State v. Lambros (1988), 44 Ohio App.3d 102, 103 held: It seems that a defendant who has a change of heart regarding his guilty plea should not be permitted to withdraw the plea just because he is made aware that an unexpected sentence is going to be imposed. Peterseim, supra, at 214. Otherwise, defense counsel merely has to allege that the defendant's plea was induced by some underlying "mistaken belief" *** and the plea would be vacated. Therefore, defendant's reliance on counsel's sentencing prediction is not sufficient to constitute a manifest injustice. Furthermore, at the defendant's guilty plea hearing, the court inquired whether defendant's plea was induced by any threats or promises to which the defendant stated "no" which dispels his argument that his plea was induced by counsel's advice or promise that he would not be serving consecutive sentences. See State v. Hunt, supra; State v. Lambros, supra. Assignment of Error II is overruled. 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 Court of Common Pleas 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. BLACKMON, P.J., and PATTON, J., CONCUR. JAMES M. PORTER 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 .