COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70260 & 70261 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION FRANK L. CARTER, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 16, 1997 CHARACTER OF PROCEEDING : Criminal appeals from : Common Pleas Court : Case Nos. CR-310271 and : CR-319395 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: George J. Sadd Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Uche Mgbaraho 1677 East 40th Street Cleveland, Ohio 44103 -2- NAHRA, P.J.: On July 10, 1994, appellant Frank L. Carter, entered pleas of guilty in two separate cases. In Case No. CR-310271, appellant pled guilty to the third count of the indictment, a violation of R.C. 2923.13, having a weapon under a disability. In exchange for his plea, the prosecution recommended that the first two counts of the indictment be nolled. In Case No. CR-319395, appellant plead guilty to a violation of R.C. 2925.11, drug abuse. In exchange for his plea, the prosecution recommended that all specifications contained within the indictment be deleted. The court satisfied itself that appellant understood his rights and made a knowing and intelligent waiver thereof. During its questioning of appellant, the court specifically asked the following: THE COURT: Anyone promised you anything or threatened you in order to get you to plead today? THE DEFENDANT: No, your Honor. *** THE COURT: Finally, Mr. Carter, has anyone advised you to lie under oath on the record as to any of the statements you made to the court regarding this plea agreement? THE DEFENDANT: No, your Honor. On August 16, 1995, following a presentence investigation and report prepared by the Probation department, the court sentenced the defendant to 3 to 5 years in CR-310271, and to eighteen months in CR-319395, to be served consecutively. -3- Appellant was appointed counsel on this delayed appeal. In addition to counsel's brief, appellant submitted a brief pro se in which appellant has listed two additional assignments of error. These additional assignments of error are related to counsel's assignments of error and will be considered together with them. I. Appellant's first and third assignments of error read as follows: I. THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE BY ACCEPTING HIS GUILTY PLEA WITHOUT SUBSTANTIALLY COMPLYING WITH OHIO CRIMINAL RULE 11(C). III. APPELLANT'S RIGHTS UNDER ARTICLE I, AND SECTION 16 OF THE OHIO CONSTITUTION AND FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION WAS VIOLATED, OF AND INVALID CONVICTIONS AND SENTENCES MUST BE VACATED, WHERE THE COUNT IN THE CASE NO. CR- 319395 WAS TO BE RAN CONCURRENT TO THE COUNT-3 IN CASE NO. CR- 310271. (SIC.) In these assignments of error, appellant alleges that the plea agreement arranged with the prosecutor included a promise that the sentence imposed in CR-310271 would be a definite sentence of 18 months and that the sentence imposed in CR-319395 would be imposed concurrently with that imposed in CR-310271. Appellant argues that because this condition of the plea agreement was omitted from the record, the plea he entered was not knowingly and intelligently made. Appellant additionally argues that Crim.R. 11(F), requiring that a negotiated plea agreement in a felony case be placed upon the record in open court, was violated because the alleged sentencing agreement was not placed upon the record. -4- At the plea hearing, the prosecutor outlined the plea agreements for each case. The agreements consisted of reduced charges by way of amending the indictments in exchange for appellant's pleas of guilty. The court asked appellant whether he was promised anything, to which he replied "No, your Honor." The court also asked appellant if he was advised to lie as to any of the statements that he made at the hearing. Appellant again replied in the negative. The record indicates that the court complied with Crim.R. 11(C) and properly found that appellant entered a knowing, intelligent, and voluntary plea of guilty to the amended indictments. The record also indicates that the agreements of reduced charges in exchange for guilty pleas were placed upon the record in open court in accordance with Crim.R. 11(F). Moreover, appellant was twice given an opportunity to state his belief that a sentencing agreement was omitted from the statement of the agreement made by the prosecutor. Appellant did not do so. Moreover, appellant cannot complain that Crim.R. 11(C) was violated by the imposition of consecutive sentences. All that is required by Crim.R. 11(C) prior to entering a plea is that the defendant be advised as to the maximum penalty for each charge. State v. Johnson (1988), 40 Ohio St.3d 130, 133, 532 N.E.2d 1295, 1298. The decision of imposing sentences consecutively or concurrently is within the discretion of the trial court and cannot be addressed until after a plea has been accepted in compliance with Crim.R. 11. Id. at 133-34; 532 N.E.2d at 1298-99. -5- As appellant was advised of the maximum penalty for each charge prior to the court's acceptance of his plea, he cannot complain that he was prejudiced by the imposition of consecutive sentences. Additionally, this is reinforced by appellant's particular circumstances. Prior to the plea, the court was not informed of the relevant factors to consider in imposing sentence. After the court received a sentencing report, the court stated that appellant's pleas resulted in "at least his ninth felony conviction in the Court of Common Pleas, and miraculously he has never done time in a penal institution." Accordingly, appellant's first and third assignments of error are overruled. II. Appellant's second and fourth assignments of error state: II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO OBJECT TO THE COURT'S FAILURE TO COMPLY WITH CRIM. R. 11(C). IV. THE LOWER COURT JUDGE AND THE APPELLANT'S LAWYER WAS ALL IN VIOLATION OF ARTICLE-I, SECTION 14 AND 16 OF THE OHIO CONST. OF THE 4TH AMENDMENT IN FAILING EFFECTIVELY TO FILE A MOTION TO SUPPRESS THE EVIDENCE BRIEF AND HAVE A HEARING UNDER CRIMINAL RULE 12(B)(1) ON THE APPELLANT'S REQUESTS OVER AND OVER TO HIS LAWYER. The record in this case indicates that the court substantially complied with Crim.R. 11(C) and that the plea agreement was placed onto the record by the prosecutor in accord with Crim.R. 11(F). There is no indication within the record, that promises regarding sentencing were made to him. Accordingly, there can be no -6- ineffective assistance of counsel as there is no basis to support the claims of inaction brought against appellant's trial counsel. Appellant claims that he requested his attorney to object to the sentencing "over and over." These allegations are beyond the scope of the record on appeal, and, therefore, beyond review of this court. See State v. Barnett (1991), 73 Ohio App.3d 244, 249; 596 N.E.2d 1101, 1103. (Claim of ineffective assistance of counsel incorporating material outside the scope of the record properly made in motion for postconviction relief, not upon direct appeal.) Accordingly, appellant's second and fourth assignments of error are without merit. Judgment affirmed. -7- It is ordered that appellee recover of appellant their 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 SPELLACY, 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 .