COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70264 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : TERRY L. GAVIN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-311264. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Dominic Delbalso, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Jeffrey Hastings, Esq. 24441 Detroit Road Suite 200 Westlake, OH 44145 -2- DAVID T. MATIA, J.: Terry Gavin, defendant-appellant, appeals from his plea of guilty to murder in violation of R.C. 2903.02 in the Cuyahoga County Court of Common Pleas, Criminal Division. Defendant- appellant's sole assignment of error concerns the trial court's compliance with Crim.R. 11. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS On May, 9, 1994, Israel Qasem was shot to death. On or about May 23, 1994, a two-count indictment was issued by the Cuyahoga County Grand Jury against Terry L. Gavin, defendant-appellant, for the following offenses: 1) aggravated murder in violation of R.C. 2903.01 with a felony murder specification and a firearm specification and 2) aggravated robbery in violation of R.C. 2911.01 with a firearm specification. On June 1, 1994, defendant-appellant pled not guilty and was assigned counsel. A number of pretrial motions were filed which are not relevant to this appeal. On September 23, 1994, defendant-appellant pled guilty to count one of the indictment which was amended to the lesser included offense of murder in violation of R.C. 2903.02 with the firearm specification deleted. Count two was nolled by the county prosecutor. Defendant-appellant was sentenced to a term of incarceration of fifteen (15) years to life in the Lorain Correctional Institution. On March 25, 1996, defendant-appellant's motion for a delayed appeal was granted by this court. -3- II. ASSIGNMENT OF ERROR Terry Gavin, defendant-appellant, states as his sole assignment of error: I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE DEFENDANT-APPELLANT'S PLEA AS IT FAILED TO SCRUPULOUSLY ADHERE TO CRIMINAL RULE 11, AND SAID PLEA WAS NOT FREELY AND VOLUNTARILY MADE. A. ISSUE RAISED: WHETHER THE TRIAL COURT COMPLIED WITH CRIM.R. 11. Defendant-appellant argues the trial court did not adhere to the mandates of Crim.R. 11. Moreover, defendant-appellant makes the assertion that his trial attorney conspired with his co- defendant's and the prosecutor's office to coerce a plea. Such a conspiracy, he argues, demonstrates his plea was not voluntarily and knowingly made. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: ACCEPTING GUILTY PLEAS. Crim.R. 11(C), which deals with a trial court's duty in accepting a guilty plea to a felony offense, provides in 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. (b) Informing him of and determining that he understands the effect of his plea of -4- 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 a 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. The dictates of Crim.R. 11 concerning the waiver of constitutional guarantees must be strictly complied with before it can be determined that a plea had been given knowingly. See State v. Nero (1990), 56 Ohio St.3d 106; State v. Gibson (1986), 34 Ohio App.3d 146. However, as to the items set forth in Crim.R. 11(C)(2), only substantial compliance with the requirements is necessary to establish a valid plea. See State v. Stewart (1977), 51 Ohio St.2d 86; State v. Colbert (1991), 71 Ohio App.3d 734. Additionally, the Supreme Court of Ohio, in State v. Caudill (1976), 48 Ohio St.2d 43, established that Crim.R. 11(C)(2) requires that an oral dialogue occur between the trial court and the defendant to properly determine whether the defendant fully understood the consequences of his plea of guilty. In determining whether a guilty plea is voluntary, intelligently and knowingly made, courts look towards the totality of the circumstances. State v. Carter (1979), 60 Ohio St.2d 34; State v. Rainey (1982), 3 Ohio App.3d 441. See, also, State of Ohio v. -5- Edgar Jones, Jr. (September 22, 1994), Cuyahoga App. No. 65160, unreported. -6- C. THE TRIAL COURT COMPLIED WITH THE MANDATES OF CRIM.R. 11 IN ACCEPTING DEFENDANT-APPELLANT'S GUILTY PLEA. In the case sub judice, not only has defendant-appellant failed to support his allegations that the trial court failed to adhere to Crim.R. 11, but the record is completely devoid of any evidence supporting his assertion. In fact, a review of the transcript demonstrates the trial court did everything possible to ensure defendant-appellant was aware of the rights and/or guarantees which he was waiving and the consequences of such waiver. Moreover, defendant-appellant provides no argument and/or evidence supporting defendant-appellant's claim that his plea of guilty was coerced. Again, a review of the transcript makes clear defendant-appellant's plea of guilty was made knowingly and voluntarily. Judgment affirmed. -7- 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. JAMES D. SWEENEY, C.J. and DIANE KARPINSKI, J., CONCUR. DAVID T. MATIA 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 .