COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70385 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : CHARLES H. RIVERS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JANUARY 30, 1997 OF DECISION: CHARACTER OF PROCEEDING: Affirmed. JUDGMENT: Criminal appeal from Common Pleas Court Case No. CR-315769 DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender RANDI OSTRY LEHOTY, ESQ. BY: DONALD GREEN, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center 1200 West Third Street N.w. 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 Cleveland, Ohio 44113-7583 -2- -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Charles Rivers, appeals his conviction for having a weapon under disability and assigns the following error for our review: THE TRIAL COURT MISINFORMED CHARLES RIVERS OF THE POSSIBLE SENTENCES HE COULD RECEIVE AND THEREFORE VIOLATED HIS CONSTITUTIONAL RIGHT UNDER FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND RULE 11 OF THE OHIO RULES OF CRIMINAL PROCEDURE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Charles Rivers was indicted for felonious assault, domestic violence, and having a weapon under disability. He appeared before the trial court for a plea hearing, and at the hearing, the prosecutor indicated to the court that he would recommend dismissal of the felonious assault and domestic violence charges if Rivers would enter a guilty plea to having a weapon under disability. The trial court then explained the plea bargain to him as follows: THE COURT: So, they are telling you that if you plead guilty to the weapons disability, and if the Court sentences you to the year and a half plus the three years, that's a total of four and a half years, that they don't care what I do about the probation violation, and that they will nolle or ask that the Court drop the first two counts. * * * Now, you have a choice here between getting a possibility of up to 20 years in prison or at least a guaranteed four and a half -4- in prison on a plea of guilty to weapons disability. So, to help you make your decision, I'm going to have the county prosecutor stand, and Mr. Miles, if you would, and outline what you expect the evidence to be in this case, much in the same manner you would were you giving an opening statement to a jury. After the court's explanation and hearing the allegations against him, Rivers decided to enter a guilty plea to having a weapon under disability with a firearm specification, and the prosecutor reiterated that it "carries a term of three years for the firearm, year, year and a half, two, two and half to five years, and the State of Ohio would agree to the minimum of three years for the firearm and year and a half to five for the having a weapon while under disability ***." The trial court then engaged Rivers in a dialogue advising him of his rights and the consequences of his plea. Finally, the trial court stated, That is a felony of the fourth degree. It exposes you to imprisonment of one, one and a half, two, two and a half, three years as a minimum sentence up to a maximum of five years. However, because of the fact the firearms specification, you have to serve an additional three years actual sentence, which must begin and be served before the one, one and a half, two, two and a half, three to five. However, the Court has indicated as part of the plea bargaining that one and a half year to five year sentence. Do you understand that. So the net effect of that is four and a half to five years. Is that clear to you? THE DEFENDANT: Yes, your Honor. After Rivers entered guilty pleas, he was sentenced to one and a half years to five years for having a weapon under disability, -5- and three years of actual incarceration for the firearm specification to be served consecutively, which amounted to four and a half to five years as the court stated on at least four separate occasions in the transcript. This appeal followed. In his sole assignment of error, Rivers argues his plea was unconstitutional under the United States and Ohio Constitution and was not in compliance with Crim.R. 11. The crux of his argument is the trial court misled him as to the maximum penalties associated with the offenses for which he was charged and therefore, his plea was not voluntary within the meaning of Crim.R. 11(C). Crim.R. 11(C) provides: *** (2) In felony cases the court may refuse to accept a pleas of guilty or a pleas 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. *** The standard for reviewing whether or not the trial court accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review. It requires an appellate court to review the totality of the circumstances and determine whether the plea hearing was in substantial compliance with Crim.R. 11(C). E.g. State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. Substantial compliance with Crim.R. 11(C) requires the trial court to engage the defendant on the record in a "reasonably intelligible" dialogue. See, e.g., State v. Ballard (1981), 66 Ohio St.2d 473. -6- Rivers argues the trial court misled him as to the correct maximum sentences. Furthermore, he was never informed of the correct possible sentences for all of the counts of the indictment. He relies upon State v. Calvillo (1991), 76 Ohio App.3d 714. In Calvillo, the trial court informed the defendant the penalty for felonious assault was a maximum of 9 to 25 years, when in fact the maximum penalty was 8 to 15 years. This court held the trial court was not in substantial compliance with Crim.R. 11, because Calvillo was not informed of the maximum penalty involved even though the defendant received a less harsh penalty than he expected. Id. at 720-721. Rivers asserts he was misled as to the maximum penalties for felonious assault. While the trial court mistakenly told Rivers that felonious assault was an aggravated felony of the first degree, instead of the second degree, he did not mislead him as to the maximum sentence for felonious assault. The trial court explained to Rivers he could be sentenced to a maximum of 12 to 15 years for felonious assault. Rivers also asserts he was misled as to the possible sentence for domestic violence. The prosecutor stated domestic violence carried a penalty of 3 to 5 years rather than the maximum penalty of six months. The trial court stated the maximum penalty for domestic violence was two years rather than the maximum penalty of six months. Although the prosecutor and trial court misrepresented the penalty associated with this misdemeanor offense, the trial court clearly stated he would not impose a sentence for domestic -7- violence if Rivers was found guilty of felonious assault because they arose out of the same incident. There are several distinctions between this case and Calvillo. In Calvillo, the trial court misrepresented the maximum sentence possible. Notwithstanding the statements made by the prosecutor and the judge, the trial court was very clear as to the maximum penalty he would impose. When the trial court stated to Rivers that he could get up to twenty years in prison, he gave Rivers the total maximum years he could receive. At the outset of the hearing, the trial court explained to Rivers that he could be sentenced on felonious assault for 12 to 15 years, and having a weapon under disability for 3 to 5 years, which would give him a possible sentence of 15 to 20 years. Thus, Rivers was not misled as to the maximum penalties he faced if he decided to go to trial. Rivers also asserts he believed at the time he entered his plea that he would receive a less severe sentence than the one he actually received. Although the trial court explained to Rivers his plea bargain would get him at least a guaranteed four and a half years, once Rivers made the decision to enter a plea, the trial court engaged him in a reasonably intelligible dialogue. In that dialogue, the trial court made it clear that Rivers would receive a sentence with a "net effect" of four and a half to five years, which he received. Thus, Rivers was not misled as to the sentence he would receive for having a weapon under disability with a firearm specification. Furthermore, there is no evidence in the record that Rivers believed he would receive a sentence less severe -8- than four and a half to five years. Accordingly, after reviewing the totality of the circumstances of this plea and sentence, we conclude the trial court was in substantial compliance with Crim.R. 11. Judgment affirmed. -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. PORTER, J., CONCUR. MCMONAGLE, J., CONCURS IN JUDGMENT ONLY PATRICIA ANN BLACKMON 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 .