COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70311 CITY OF VALLEY VIEW, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ERNEST HAASE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 30, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Garfield Heights Municipal : Court : Case No. 95-TRD-7211A/C JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Arthur P. Lambros 5709 Smith Road Brook Park, Ohio 44142 David A. Lambros 6161 Engle Road Brook Park, Ohio 44142 For defendant-appellant: Myron P. Watson 310 Lakeside Avenue, N.W. 350 Courthouse Square Building Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Ernest Haase, was convicted of violating R.C. 4511.192, driving under suspension, and sentenced to 180 days in jail, three years inactive probation, and a $1,000 fine. The fine was suspended. Appellant was also convicted of violating R.C. 4511.25 and sentenced to pay a $50 fine. Upon his arraignment, appellant pled not guilty to the charges. At that time, appellant informed the court that he would hire an attorney to represent himself. At his first pretrial, appellant appeared without representation. The court informed him of his right to representation and that it would hold an indigence hearing on the following day. Appellant told the court that he did not want to appear for the hearing and the court told appellant that he would only be appointed counsel following a determination that he was indigent. Appellant did not appear for an indigence hearing. On November 30, 1995, appellant did appear in court for another pre- trial. At that time he was informed of his constitutional rights by the court, including his right to counsel, signed a waiver of those rights, and entered a plea of no contest to the charges. At appellant's request, the court postponed sentencing of his charges until December 21, 1995 and did sentence him then. On December 28, 1995, appellant, through counsel, made a motion to withdraw his plea, arguing that he had not effectively waived his right to counsel at the pre-trial. The court denied appellant's motion, and appellant appeals that denial. -3- Transcripts of appellant's hearings could not be produced by the court. The court prepared a statement pursuant to App.R. 9(C). Appellant lists two assignments of error: I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION TO WITHDRAW PLEA OF NO CONTEST WHEN THE PLEA HEARING WAS CONDUCTED WITHOUT AN EFFECTIVE WAIVER OF COUNSEL. II. THE TRIAL COURT ERRED WHEN IT FAILED TO RECITE ALL OF APPELLANT'S CONSTITUTIONAL RIGHTS DURING THE PLEA HEARING PURSUANT TO CRIMINAL RULE 11. As the second assignment of error addresses the reasoning to support the first assignment of error, we will address them concurrently. Appellant argues that he should be allowed to withdraw his plea after sentencing because he was not represented by counsel at the time he entered the plea and was not apprised of his constitutional right to counsel. Additionally, appellant argues that he was coerced by the court into entering his plea of no contest. Further, appellant argues the court erred by denying his motion to withdraw his plea because, as there is no transcript, it cannot be proven that appellant was aware of his rights or that he knowingly, intelligently, and voluntarily waived those rights. A trial court is to grant a motion to withdraw a plea after sentencing only to avoid manifest injustice. Crim.R. 32.1; State v. Blatnik (1984), 17 Ohio App.3d 201, 478 N.E.2d 1016; State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324. In determining whether a manifest injustice has occurred, a court is to look to all the circumstances surrounding the plea, and is to grant a -4- motion to withdraw a plea only in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d at 1326. A court's denial of a motion to withdraw a plea is reviewed under an abuse of discretion standard. State v. Lambros (1988), 44 Ohio App.3d 102, 541 N.E.2d 632, jurisdictional motion overruled (1989), 41 Ohio St.3d 726, 536 N.E.2d 381. "Abuse of discretion is `more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.'" Id. at 103, 541 N.E.2d at 634 (quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149.) We note first that the record in this case is comprised of the court docket and file pursuant to App.R. 9(A) and the statement of proceedings in lieu of the transcript pursuant to App.R. 9(C). See, App.R. 12; see, also, State v. Dickard (1983), 10 Ohio App.3d 293, 295, 462 N.E.2d 180, 183 (citing Joiner v. Illuminating Co. (1978), 55 Ohio App.2d 187, 380 N.E.2d 361). Crim.R. 11 provides for the protection of a defendant's rights by ensuring that before a plea of guilty or no contest is taken, the defendant is aware of his constitutional rights. See, State v. Nero (1990), 56 Ohio St.3d 106, 107, 564 N.E.2d 474, 475-76; State v. Holder (1994) 97 Ohio App.3d 486, 489, 646 N.E.2d 1173, 1175. When accepting a guilty plea or a plea of no contest, a court is required to substantially comply with Crim.R. 11(C). Nero, 56 Ohio St.3d at 108, 564 N.E.2d at 476. "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the -5- rights he is waiving." Id. (Citations omitted.) So, even where the court may fail to abide strictly with the requirements of Crim.R. 11, if the defendant has knowledge of those rights, then there is no error requiring reversal of the plea. In its statement of proceedings, the court states appellant was fully informed of his constitutional rights. Additionally, the court's file contains appellant's signed waiver of his constitutional rights, specifically including his waiver of the right to counsel. Moreover, appellant is not unfamiliar with the procedures of the municipal court system as he had previously been convicted of DUI twice, as well as having two twelve point license suspensions. Appellant has not demonstrated that he did not make a knowing, intelligent, and voluntary waiver of his constitutional right to counsel. For this reason, appellant's second assignment of error is not well taken. Because appellant cannot demonstrate that he did not waive his right to counsel voluntarily, knowingly, and intelligently, his argument that the court abused its discretion in denying his motion to withdraw his plea after his sentencing is without merit. Accordingly, we overrule appellant's first assignment of error. Judgment affirmed. -6- 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 Garfield Heights Municipal 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. BLACKMON, P.J., and SPELLACY, J., CONCUR. JOSEPH J. NAHRA 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 .