COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70045 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD T. ADAMS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 22, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 327532 JUDGMENT : Affirmed in part and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Cuyahoga County Prosecutor By: Darcy Moulin, Esq. Charles H. Bragg, Esq. Assistant Prosecuting Atty. The Courtyard Office Park The Justice Center 7055 Engle Road 1200 Ontario Street Suite 1-103 Cleveland, Ohio 44113 Middleburg Hts., Ohio 44130 -2- ROCCO, J.: Defendant-appellant Richard Adams appeals from his conviction for drug trafficking and permitting drug abuse on the grounds that his guilty plea was not made knowingly and voluntarily, and also, that the sentence he received was illegal and void. For the reason that the trial judge substantially complied with Crim.R. 11(C) and the appellant understood the implication of his plea and the rights he was waiving, we find no merit to his contention and affirm appellant's conviction. However, as the sentence imposed by the trial court's journal entry differs from the sentence imposed at the time of appellant's plea, this matter is remanded so that the trial court may re-sentence appellant. On September 5, 1995, appellant was indicted on three counts. Appellant was charged, in Count One, with Drug Trafficking, in violation of R.C. 2925.03, in Count Two, with Permitting Drug Abuse, in violation of R.C. 2925.13, and, in Count Three, with Possession of Criminal Tools, in violation of R.C. 2923.24. Count Two also included a furthermore specification for a prior drug conviction. All three counts contained violence specifications. Jury trial commenced on October 19, 1995. The following day, after the State of Ohio had completed its case, appellant decided to enter into a plea agreement. The agreement provided that Adams would enter pleas of guilty to Count One and Count Two; Count Three would be dismissed by the Court, and the agreed upon sentence for a -3- minimum of 2 to 10 years of incarceration would be imposed. The court, out of the presence of the jury, then held a plea hearing and immediately proceeded to sentencing, imposing the requested sentence. Subsequently, appellant filed a delayed appeal of his conviction in this court. ASSIGNMENTS OF ERROR Appellant originally stated one assignment of error and subsequently filed a supplemental brief wherein he stated two additional assignments of error. Appellant's first assignment of error states: I. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE SINCE THE COURT DID NOT SUFFICIENTLY EXPLAIN TO THE APPELLANT THE RIGHTS HE WAS WAIVING BY ENTERING HIS GUILTY PLEA. Appellant maintains that the trial court failed to comply with the requirements of Crim.R. 11; he asserts the trial court failed to determine whether he knowingly and voluntarily waived his constitutional rights. Additionally, appellant contends the trial court neither informed him that it could proceed with sentencing immediately after accepting the plea nor that he had a continued right to trial by jury. Crim.R. 11(C) provides, in pertinent part: (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (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. -4- (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 for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. When reviewing a plea submitted by a defendant, the focus should be on whether the dictates of Crim.R. 11 have been followed. State v. Kelley (1991), 57 Ohio St.3d 127, 128. Furthermore, when reviewing the record, the appellate court must ascertain whether the defendant voluntarily and knowingly waived his constitutional rights. Id. at 129. As determined by the United States Supreme Court in Boykin v. Alabama (1969), 395 U.S. 238, 243, these constitutional rights include: (1) the Fifth Amendment privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one's accusers. See, also, State v. Nero (1990), 56 Ohio St.3d 106. In the absence of literal compliance with Crim.R. 11, a defendant's guilty plea need not be vacated if the reviewing court determines that there was substantial compliance with the rule. State v. Nero, supra at 108, citing State v. Stewart (1977), 51 Ohio St.2d 86. Substantial compliance means that the defendant subjectively understood the implications of his plea and the rights he was waiving. Id. The applicable standard is whether there was substantial compliance based on a review of the totality of the circumstances to determine that no prejudice -5- resulted to the defendant. State v. Flint (1986), 36 Ohio App.3d 4, 9. In the case at bar, the following colloquy occurred, outside of the presence of the jury: MR. GAUNTNER [Defense counsel]: Your honor, we have arrived at a plea bargain in this situation. My client is aware of his constitutional rights, his rights at trial. We're presently in a jury trial. The State has just rested. And at this time, Your Honor, it's my understanding that he is interested in entering two guilty pleas to the two third degree felony charges, with the understanding that the Court is going to impose sentences of two years to ten years, that these are concurrent. However, there's a probation violation, which is six to thirty years, which would run consecutive. He understands his rights, and I have advised him of it. THE COURT: Could I have the pre-sentence report back on the other case. All right. Mr. Adams, do you understand what's going on today? THE DEFENDANT: Not really. THE COURT: What don't you understand? THE DEFENDANT: I don't understand consecutive sentence. THE COURT: Consecutive on the probation violation. THE DEFENDANT: Yes. THE COURT: The law of Ohio, if you violate probation, you do not run them concurrent. I do not terminate probation. So if somebody is on probation and they plead to a new offense, the old offense is consecutive. Now, you had three to fifteen twice, consecutive. My understanding on these old matters, you were shocked out, if I recall on your case. Now if you plead guilty, you will be found to be a probation violator. If you plead guilty or if you're convicted of anything, you're a probation violator, and you begin three to fifteen on each, 'cause you violated your probation by committing a new crime while out on the shock probation; do you understand that? -6- *** THE COURT: I don't want any speeches. I'll give you time for speech at sentencing. I want to know if you're willing and able to go through with the pleas here? The maximum sentence would be two, three, four, five to ten years on each, if I understand it. THE DEFENDANT: Explain that again. THE COURT: I thought we were talking about an agreed sentence, and that's what's been agreed to is two to ten, concurrent on the second count, consecutive on the probation violation. It's a total of eight minimum. THE DEFENDANT: No chance of probation, Your Honor? THE COURT: Zero chance of probation. Keep in mind that would not be the Court's sentence. THE DEFENDANT: So, Your Honor, it's two to ten, consecutive? THE COURT: Two to ten concurrent on the two counts you'll be convicted of today, but consecutive to your probation violation. It remains the same. You've got an additional two to ten on top. MR. GAUNTNER: Okay, Judge. THE COURT: All right. Is it your desire to enter into a plea with this agreed on sentence? THE DEFENDANT: Yes. THE COURT: All right. Do you understand -- you're in trial now. You have a right to completely confront witnesses against you, to put on a defense, and you could testify yourself, or you could choose not to testify, and no one could comment upon that. You could compel witnesses to appear and explain anything you like; okay? THE DEFENDANT: Mm-hm. THE COURT: Do you understand that at trial the burden of proof is on the State to prove your guilt beyond a reasonable doubt of each and every element of the crime before you could be convicted, as we've instructed the jury; do you understand that? -7- THE DEFENDANT: Yes. THE COURT: Okay. I take it you're not under the influence of any drugs, alcohol, or any medication, 'cause you're in County Jail; is that correct? THE DEFENDANT: Yes. (Emphasis added). Thereupon, appellant entered his guilty plea, and the trial court proceeded to sentencing. The record thus demonstrates that the trial court substantially complied with the requirements of Crim.R. 11(C). The trial court informed appellant of the sentence he would receive and that he had no chance of probation. It informed him that the sentence was a part of the arrangement that he agreed to accept. The trial court also stated the rights appellant was waiving relative to his already-commenced jury trial. The trial court specifically informed appellant that he had the right to testify or to choose not to testify, and further, that he had the right to compel and confront witnesses. The exchanges on the record indicate appellant was fully aware of the implications of his plea and the rights he was waiving. Crim.R. 11(C) was adopted "in order to facilitate a more accurate determination of the voluntariness of a defendant's plea by ensuring an adequate record for review." State v. Nero, supra at 107 (citations omitted). Thus, although this court strongly encourages literal compliance with the requirements of Crim.R. 11(C), which required little effort on the trial court's part, the record reveals that the standard established by the Ohio Supreme Court was met in this case. -8- This court also notes a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. State v. Nero, supra at 108, citing State v. Stewart, supra. The test is whether the plea would have otherwise been made. Id. In this case, appellant chose to withdraw his plea of not guilty and to enter a guilty plea only after the State had already completed its case. Appellant had the opportunity to hear the State's case, and to assess the evidence that had been presented against him. At the plea hearing, appellant himself stated: Things just didn't work out right this time. I really wasn't guilty of this charge. But the evidence here presented was over-bearing, especially in view of the fact the people sit up here and straight lied. (Emphasis added). Appellant's own statements thus indicated that he knowingly and voluntarily waived his rights and entered the guilty plea after considering his options and assessing his situation. There is no indication that further inquiry by the trial court regarding appellant's plea would have convinced him to make a different decision. Appellant's first assignment of error is overruled. SUPPLEMENTAL ASSIGNMENTS OF ERROR I. THE SENTENCES IMPOSED UPON THE DEFENDANT RICHARD ADAMS ARE ILLEGAL AND VOID AS A MATTER OF LAW In his supplemental brief, appellant contends that the sentences imposed on him are illegal and void. After appellant pled guilty to one count of Drug Trafficking in violation of R.C. 2925.03 and one count of Permitting Drug -9- Abuse in violation of R.C. 2925.13, the following dialogue occurred: THE COURT: All right. The Court nolles Count 3 and will accept these pleas. Now, we're going to go into sentencing. The sentencing is set here, and it's been agreed to, and I'm ready to proceed. Is there anything further that must be said? THE DEFENDANT: No, Your Honor. MR. GAUNTNER: No, Your Honor. THE COURT: All right. The Court is going to find you to be a probation violator in Docket 277700, based upon this plea. And in Case No. 255678, these are the two robbery pleas. Each carry a three to 15-year sentence, which is consecutive. Both sentences will be imposed consecutive to one another, and consecutive to the two to ten sentence in Count 1 and 2 of this case, 327532. Now, Count 1 and 2 of this case, in 327532, will be run concurrent. So you'll have a total of eight years minimum, with the so-called tail. The court's journal entry, however, reads, in pertinent part: It is therefore, ordered and adjudged by the court that said defendant, Richard Adams, is sentenced to Lorain Correctional Institution, for a term of (3) three years to (15) fifteen years on each count (as part of plea agreed sentence), counts to run concurrent, pay court costs, credit for time served. Sheriff to calculate time. Appellant pled, in Count One, to a violation of R.C. 2925.03, for selling Cocaine, a Schedule II drug, in an amount less than the bulk amount, a felony of the third degree pursuant to R.C. 2925.03 (C)(1). R.C. 2929.11(B)(6) provides that, for a felony of the third degree, "the minimum term shall be two, three, four, or five years, and the maximum term shall be ten years". In Count Two, appellant pled guilty to a violation of R.C. 2925.13 with a specification for a prior drug abuse conviction and two prior aggravated robbery convictions, a felony -10- in the fourth degree pursuant to R.C. 2925.13(C)(1). R.C. 2929.11(B)(7) provides that, for a felony of the fourth degree, "the minimum term shall be eighteen months, two years, thirty months, or three years, and the maximum term shall be five years". Appellant contends that, as the sentence appellant was promised he would receive prior to entering his guilty plea, and the sentence that was imposed on appellant on the record was different from the sentence imposed by the court's journal entry, the sentence is therefore, void. Additionally, with regard to Count Two, appellant also argues that the sentence is void as neither the agreed sentence nor the sentence imposed by the Court's journal entry are provided for by statute. The trial court may accept or reject an agreed upon sentence. In the case, sub judice, appellant and his attorney reached an agreement with the prosecutor which was accepted by the trial judge, as evidenced by the transcript. Appellant knew the sentence he would be receiving and accepted it in exchange for the court dismissing Count Three. The journal entry later issued by the trial court, however, is inconsistent with the agreed on sentence and the transcript. There is no reason to hold that the sentence agreed to by appellant and the prosecutor as to Count One is void. As to Count One, this matter is remanded so that the trial court may re-sentence appellant consistently with the sentence imposed pursuant to the transcript. However, appellant is correct that the sentence imposed by the trial court on Count Two is void, as -11- neither the agreed on sentence nor the sentence in the journal entry are permitted by statute. Therefore, on Count Two, the trial court is ordered to re-sentence appellant in compliance with R.C. 2929.11(B)(7). Appellant's first supplemental assignment of error is overruled as to Count One and affirmed as to Count Two. II. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE SINCE APPELLANT ENTERED HIS PLEAS BASED ON AGREED ON SENTENCES WHICH WERE NOT IMPOSED AND BECAUSE ONE OF THE IMPOSED SENTENCES WAS ILLEGAL AND VOID. Appellant next contends that his plea was not knowingly and voluntarily made as the agreed on sentence was not imposed. As this court has ordered the trial court to enter the agreed on sentence for Count One which is evidenced by the transcript, this argument has no merit as to Count One. Further, regarding Count Two, the sentence agreed to by appellant, his counsel, the prosecutor and the court actually provides for a longer sentence than is permitted by statute. As noted above, in order to successfully challenge a plea on the grounds that it was not knowingly, intelligently, and voluntarily entered, the appellant must show a prejudicial effect. See State v. Nero, supra. The record evidences that appellant's plea was based on a sentence of two to ten years on both counts. As the trial court has been ordered to re-sentence appellant on Count Two in compliance with the relevant statute, appellant is actually receiving a better deal than he originally bargained for. Thus, once the trial court re-sentences appellant in compliance with this order, appellant will not be able to -12- demonstrate that he has suffered any prejudice when he entered his guilty plea. Appellant's contention that his guilty plea was not knowingly and voluntarily made is not well-taken. However, as the court's journal entry is inconsistent with the transcript of the proceeding and the agreed on sentence for Count Two is beyond the sentence permitted by statute, this matter is remanded. The trial court is ordered to impose a sentence of two to ten years on Count One as initially imposed, and is ordered to re-sentence appellant on Count Two to a sentence consistent with that permitted by statute. Accordingly, appellant's first assignment of error is overruled, appellant's first supplemental assignment of error is overruled in part and affirmed in part and appellant's second supplemental assignment of error is overruled. Appellant's conviction is affirmed. Appellant is remanded for sentencing consistent with this opinion. -13- 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. JAMES M. PORTER, P. J., CONCURS; TERRENCE O'DONNELL, J., DISSENTS. (DISSENTING OPINION ATTACHED.) JUDGE KENNETH A. ROCCO 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 .