COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70462 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ALLEN R. HARRIS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 30, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-303385 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Fedele DeSantis Assistant County Prosecutor The Justice Center 1200 Ontario Street - 8th Floor Cleveland,Ohio 44113 For defendant-appellant: Kevin M. Spellacy McGINTY, GIBBONS & HILOW CO., L.P.A. One Cleveland Center 1375 E. Ninth Street, No. 1920 Cleveland, Ohio 44114 -2- NAHRA, J.: Appellant, Allen R. Harris ("Harris"), appeals from a conviction of aggravated robbery in violation of R.C. 2911.01. For the following reasons, we affirm the conviction. The following procedural history contains the facts relevant on appeal. In December, 1993, appellant was indicted on one count of aggravated robbery and one count of robbery. Appellant pleaded not guilty to each count. On January 26, 1994, Harris withdrew these pleas and pled guilty to one count of aggravated robbery. The state dismissed the remaining count of the indictment. The trial court entered judgment accordingly and bound Harris over for sentencing. After reviewing the presentence investigation report, the trial court sentenced appellant to six to twenty-five years in the Lorain Correctional Institution. The trial court indicated that appellant's criminal record, both juvenile and adult, influenced the degree of the sentence. Harris moved to withdraw his guilty plea and for reconsideration of the sentence. The trial court denied these motions. Appellant filed his notice of appeal pursuant to App.R.5(A). On appeal, Harris assigns two errors for review. I. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ACCEPTING APPELLANT'S GUILTY PLEA WITHOUT FIRST ADVISING HIM THAT HE WOULD NOT BE A CANDIDATE FOR PROBATION AND THAT HIS JUVENILE RECORD WOULD BE USED AGAINST HIM, AS IS REQUIRED BY CRIMINAL RULE 11. -3- Crim.R. 11(C)(2)(a) provides that a trial court may only accept a guilty plea after it determines that the plea is voluntary and that the defendant understands the nature of the charge, the maximum penalty involved and if applicable, that he is not eligible for probation. While literal compliance with Crim.R. 11 is preferred, a reviewing court will not sustain error where the trial court substantially complied with the mandates of Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 86; State v. Flint (1986), 36 Ohio App.3d 4, 520 N.E.2d 580. Further, a reviewing court looks to the totality of the circumstances to determine whether a plea was properly accepted. State v. Smith (Aug. 15, 1996), Cuyahoga App. No. 69942, unreported. Despite appellant's contrary assertions, we find that the trial court complied with Crim.R. 11. First, a trial court has no duty to advise a defendant about the potential for discretionary imposition of actual incarceration and R.C. 2911.01 is a probationable offense. State v. Davidson (Aug. 15, 1996), Cuyahoga App. No. 69380, unreported. Thus, appellant's claim that the trial court erred by advising him that incarceration was possible, as opposed to certain, is meritless. Second, even if appellant was ineligible for probation because of his prior criminal activity, "when a court is unaware of a defendant's criminal record at the time it accepts his plea of guilty, it has no duty to inform the defendant of his probation ineligibility if the facts then before it do not preclude probation." State v. Russell (Feb. 23, 1995), Cuyahoga App. No. 66959, unreported. See, also, State v. Threatt (May 13, 1993), -4- Cuyahoga App. Nos. 61619, 61620, 61621, unreported; State v. Smith (1986), 31 Ohio App.3d 26. The record does not reveal on what basis probation was denied or whether Harris was eligible for probation. Appellant has not demonstrated at what point the trial court determined his ineligibility for probation. Consequently, the record does not support Harris' allegation of error. See Russell, supra. We note that appellant's claim that he subjectively believed that he would receive probation is equally unpersuasive. The trial court explained that incarceration was a distinct possibility. Additionally, Harris represented that no promises had been made to him in exchange for his plea. Given these facts, there is no basis for appellant's claim that his plea was conditioned upon receiving probation. See State v. Lambros (1988), 44 Ohio App.3d 102, 541 N.E.2d 632. For the foregoing reasons we overrule appellant's first assignment of error. II. Appellant's second assignment of error states: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO ENTERING HIS GUILTY PLEA, UPON ENTERING HIS GUILTY PLEA, AND AT SENTENCING. The Ohio Supreme Court has articulated a two part standard for reviewing issues of ineffective assistance of counsel. First, an appellant must demonstrate that his counsel's performance fell below an objective standard of reasonable representation. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373 (paragraph one of -5- the syllabus). Second, the claimant must demonstrate prejudice resulting from counsel's deficient performance. Id. The scope of our review is limited by State v. Corethers (March 30, 1995), Cuyahoga App. No. 67510, unreported. [I]t is clear that a plea of guilty waives the right to claim that the accused was prejudiced by constitutionally ineffective counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary. See, also, State v. Kelley (1991), 57 Ohio St.3d 127; State v. Barnett (1991), 73 Ohio App.3d 244, 249. Appellant first contends that his appointed trial counsel erroneously informed him of the possible and probable sentences which would result from his guilty plea. This fact, according to appellant, renders his plea "less than knowing." However, the record is devoid of evidence containing sufficient operative facts to demonstrate appellant's claim. See State v. Jackson (1980), 64 Ohio St.2d 107. Moreover, the trial court took great care to ensure that Harris recognized that the potential consequences of his guilty plea included a twenty-five year prison term. Consequently, appellant's argument lacks merit. Even if appellant could establish erroneous advice of trial counsel, such advice does not constitute ineffective assistance of counsel. In State v. Longo (1982), 4 Ohio App.3d 136, 4 OBR 228, 446 N.E.2d 1145, this court addressed similar facts. In Longo, trial counsel informed his client that he "would get probation" and "that he could not and should not expect any penitentiary [time] [sic]." Id. at 138. After receiving his sentence of one to ten -6- years of imprisonment, Longo argued that his trial counsel's advice constituted ineffective assistance of counsel because he would have proceeded to trial had he known that he was not getting probation. This court stated, at 4 Ohio App.3d 140: Although counsel's anticipation of probation, in retrospect, was mistaken, this did not render the assistance ineffective. Accordingly, we do not find merit in appellant's argument. Appellant next argues that his trial counsel failed to advise him that he was not eligible for probation. Again, however, the record does not contain the advice rendered by trial counsel. Further, it is not clear on what basis probation was denied or whether Harris was ineligible for probation. Accordingly, appellant has failed to demonstrate error. Third, appellant argues that trial counsel's inadequate preparation for trial left him no alternative but to plead guilty. However, determination of this issue relies on facts not present in the record. Additionally, the trial court, adhering to the requirements of Crim.R. 11, ensured that the plea was voluntary. Of additional significance, upon specific inquiry by the trial court, Harris stated that he was satisfied with the representation his trial counsel had rendered. Accordingly, we find no merit in his allegations. For the foregoing reasons, we overrule appellant's second assignment of error. 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. BLACKMON, P.J., and McMONAGLE, TIMOTHY E., 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 .