COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70053 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION MARNETTA BRIDGET : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 23, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-318842. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John A. Clough Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Charles H. Bragg, Esq. 303 East Bagley Road Berea, Ohio 44017 SWEENEY, JAMES D., C.J.: Defendant-appellant Marnetta Bridget (d.o.b. May 20, 1968), a.k.a. Marnetta Barkley, appeals from her plea of guilty to the aggravated robbery (which accompanied the shooting) of a seventy- four-year-old grandfather. For the reasons adduced below, we 1 affirm. A review of the record on appeal indicates that the defendant entered her guilty plea on June 23, 1996, subsequent to an oral 2 hearing conducted pursuant to Crim.R. 11. At this plea hearing, the prosecutor stated the substance of the plea bargain and that the amended offense, an aggravated felony of the first degree pursuant to R.C. 2911.01, was a probationable offense carrying a possible sentence of 5, 6, 7, 8, 9 or 10 years at a minimum up to a maximum of 25 years pursuant to R.C. 2929.11(B)(1). (Plea Hrg. at 3-4.) The court then addressed the defendant, at which time the defendant, then twenty-seven years old, stated that she had completed the eleventh grade and was presently employed as a nursing assistant, a trade which required her to have attended specialized training in school for approximately six months. The defendant stated that she understood everything that the prosecutor 1 As part of the plea bargain, the firearm specification associated with the aggravated robbery count was eliminated and the second count of the indictment, felonious assault with a firearm specification, was dismissed. 2 At the plea and sentencing hearings, defendant was represented by retained counsel Stanley Tolliver. - 3 - and her counsel had stated, and in addition, that she is not under the influence of drugs, alcohol or medication and she is presently on inactive probation for petty theft which offense occurred approximately in 1990. (Plea Hrg. at 8.) The court explained the constitutional rights that she, the defendant, was waiving by entering a plea of guilty, to which the defendant stated that she understood her rights. (Plea Hrg. at 8-10.) The court then stated the following: THE COURT: Now, count one of the indictment as amended by motion of the prosecutor is that of aggravated robbery? MR. TOLLIVER: Yes. THE COURT: As such, it is a probationable aggravated felony of the first degree. It carries a possible five, six, seven, eight, nine, ten to twenty-five years and/or a fine up to -- MR. TOLLIVER: Ten thousand dollars. THE COURT: Thank-you, Mr. Tolliver. Knowing all these things, how do you plead to amended count one, aggravated robbery, a probationable felony of the first degree? THE WITNESS: Guilty. THE COURT: Are you satisfied with your attorney's representation? THE WITNESS: Yes. THE COURT: You understand that no one can make any promises for me as to what I am going to do? THE WITNESS: Yes. THE COURT: Is your plea voluntarily made and of your own free will? - 4 - THE WITNESS: Yes. THE COURT: Now, I want this on the record. You understand that this arrangement is being made by the Prosecutor's Office on the condition that you testify? THE WITNESS: Yes. THE COURT: And that you cooperate with respect to Case No. 324448. And you understand if you fail to do so, the prosecutor has requested on the record, and this Court wants to put on the record, that this plea will be withdrawn and we'll immediately set this for trial. Do you understand? THE WITNESS: Yes. THE COURT: Accordingly, this Court finds the defendant, Marnetta Bridget, understands the nature of the charge and her constitutional rights and willingly, voluntarily and intelligently waives those rights and enters a plea of guilty to amended count one, an aggravated robbery, an aggravated probationable felony of the first degree. Accordingly, this Court hereby accepts the plea ***. (Plea Hrg. at 10-12.) The court then adjourned so that a presentence investigation report could be prepared. On October 13, 1996, defendant was sentenced to the minimum incarceration possible, a term of five to twenty-five years (plus court costs), with credit for time served. This delayed appeal presents three assignments of error. Since each assignment concerns the propriety of the plea, they will be discussed jointly. - 5 - I THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE SINCE THE COURT DID NOT EXPLAIN TO HER (SIC) THE APPELLANT (SIC) THE MINIMUM AMOUNT OF TIME SHE WOULD ACTUALLY HAVE TO SPEND IN PRISON (SIC) II THE APPELLANT'S GUILTY PLEA WAS NOT MADE PURSUANT TO CRIM(SIC)R. 11 SINCE THE COURT NEVER PROPERLY INFORMED HIM (SIC) THAT SHE WAS ENTITLED TO APPOINTED TO COUNSEL AT TRIAL (SIC) III THE APPELLANT'S GUILTY PLEA WAS NOT MADE PURSUANT TO CRIM(SIC)R. 11 SINCE THE COURT NEVER PROPERLY INFORMED HER OF THE IMPACT HER CONVICTION WOULD HAVE ON HER PROBATION FOR HER PREVIOUS CONVICTION FOR PETTY THEFT (SIC) The standard of review relative to an attack on a guilty plea on the basis that the taking of the plea by the trial court did not comply with Crim.R. 11(C) was recently stated in State v. Caplinger (1995), 105 Ohio App.3d 567, 572, as follows: Ohio courts have determined that although literal compliance with Crim.R. 11(C)(2)(a) is preferred, it is not an absolute requirement. Rather, the trial court's actions will be reviewed for "substantial compliance" with Crim.R. 11(C)(2)(a). State v. Johnson (1988), 40 Ohio St.3d 130, 133, 532 N.E.2d 1295, 1298; State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476-477. "Substantial compliance means that under the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving." State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 759-760; Nero, supra, at 108, 564 N.E.2d at 476, citing State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 - 6 - N.E.2d 1163. In other words, if it appears from the record that the defendant appreciated the effect of his plea and his waiver of rights in spite of the trial court's error, there is still substantial compliance. Nero, supra, 56 Ohio St.3d at 108-109, 564 N.E.2d at 476-477. Furthermore, an appellant who challenges his plea on the basis that it was not knowingly and voluntarily made must show a prejudicial effect. Nero, supra, citing Stewart, supra, at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Stewart, supra, at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167. Appellant's arguments may be distilled to the following: 1. Her plea was not knowing because she was not informed as to the minimum amount of time she must serve in the potential sentence. (See the first assignment.); 2. The trial court did not advise her that she was entitled to have appointed counsel in any trial proceedings should she not plead guilty and could not afford to retain counsel, as required by Crim.R. 11(C)(1). (See the second assignment.); and, 3. She did not understand the effect of her plea where the court did not advise her that a plea of guilty in the present case would mean an automatic violation of her probation in the prior petty theft case, with the resulting prejudice being the serving of the sentence sub judice consecutive to the prior petty theft sentence. (See the third assignment.) As to the first assignment of error, we conclude that the trial court substantially complied with the dictates of Crim.R. 11(C) when it stated the potential sentence to the defendant- appellant. To argue that the defendant did not understand that the amount of potential incarceration could fall within the range of a - 7 - minimum of five, six, seven, eight, nine or ten years, and that the defendant must serve the minimum time to which she is sentenced, is not demonstrated. Accordingly, the first assignment of error is overruled. As to the second assignment of error, we note that the court stated to the defendant the following: THE COURT: Do you understand that you have the right to be represented by an attorney throughout these entire proceedings, one either retained by you or appointed by the Court if you cannot afford one? THE WITNESS: Yes. THE COURT: Do you understand you have the right to a trial by a jury, or you may give up that right and have it tried by a Judge of this court without a jury? THE WITNESS: Yes. (Emphasis added)(Plea Hrg. at 10). Given that the trial court used the term "throughout these entire proceedings" while going through the litany of waived constitutional rights, which constitutional rights all pertain to rights which would be exercised at a trial, it is ludicrous to conclude that the court did not advise the defendant of her right to counsel through any trial proceedings that might occur should she insist on going to trial. Accordingly, the second assignment of error is overruled. As to the third assignment of error, there is no demonstration that the sentence imposed sub judice resulted in the defendant being adjudicated a probation violator in her prior conviction for - 8 - petty theft, let alone the two sentences being ordered to run consecutively. Absent this demonstration of prejudice, we conclude her plea was made in conformity with Crim.R. 11. The third assignment of error is overruled. 3 Judgment affirmed. 3 Although not prejudicial to the appellant and of no effect to our determination, we note that appellant counsel's brief is replete with over fifty examples of mistakes in punctuation, citation and spelling. We note that appellant's counsel is a former judicial clerk with service to this court and is urged to do credit to his former position by applying greater attention to detail in his brief writing and proofreading efforts before the Bench. - 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 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. PATRICIA A. BLACKMON, J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 .