COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70586 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION BETTY GURLEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 5, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-259519 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: DANIEL M. MARGOLIS (#0067330) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: LON STOLARKSY (#0023711) 1630 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - SPELLACY, J.: Defendant-appellant Betty J. Gurley ("appellant") was indicted for two counts of aggravated murder in violation of R.C. 2903.01. Both counts included firearm and felony murder specifications. The indictment included a third count for aggravated robbery in violation of R.C. 2911.01. This count also contained a firearm specification. This was a capital murder case. Prior to the commencement of trial, the prosecutor and defense counsel informed the trial court that a plea agreement had been reached. The prosecutor stated that the first aggravated murder count would be reduced to the lesser included offense of murder. The felony murder specification and the portion of the indictment relating to committing or attempting to commit or fleeing immediately after committing an aggravated robbery would be deleted. The firearm specification would be retained. The prosecutor stated the murder charge called for a possible imprisonment of fifteen years to life plus three years for the gun specification. The minimum term appellant could receive would be eighteen years. The second murder count would be nolled. Appellant would plead guilty to the aggravated robbery charge as indicted. It called for a term of imprisonment of five, six, seven, eight, nine or ten to twenty-five years plus three years for the gun specification. The two gun specifications would merge for sentencing. - 3 - Defense counsel told the trial court the matter was thoroughly discussed with appellant. He explained to appellant the criminal and procedural rights she would be waiving by pleading guilty. The trial court then engaged the appellant in the following dialogue: THE COURT: All right. Now, in this case, do you know that you have a right to have a trial by a jury or judge and be represented by an attorney at that trial? THE DEFENDANT: Yes, sir. THE COURT: Do you understand, in fact, that the jury has been convened and is sitting in the other courtroom as we speak here? THE DEFENDANT: Yes, sir. THE COURT: Now, do you know that your lawyer in this case has the right to subpoena witnesses to testify for you at trial? THE DEFENDANT: Yes, sir. THE COURT: Do you know he has the right to cross-examine all the witnesses called by the State to prosecute you in this case? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that the State of Ohio has the burden to prove your guilt beyond a reasonable doubt? THE DEFENDANT: Yes, sir. THE COURT: Do you know that you have no burden whatever in connection with this trial. THE DEFENDANT: (Nodding head.) - 4 - THE COURT: The State must prove you guilty. You do not have to prove anything. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you know that in this case you have a right against self- incrimination, and that means that you don't have to testify against yourself, if this case were to proceed to jury trial. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: You know no one can compel you in that regard? THE DEFENDANT: Yes, sir. THE COURT: Do you know that if you plead guilty that it would be a complete admission of your guilt, and by entering the plea of guilty you will waive or give up your rights to trial by a jury, representation by counsel, examination and cross-examination of witnesses, and your right against self- incrimination? THE DEFENDANT: Yes, sir. THE COURT: All right. Has anyone promised you anything or forced you or induced you to plead guilty in this case? THE DEFENDANT: No, sir. THE COURT: All right. Now, the indication spread on the record here is that you are desirous of entering a plea of guilty to the amended indictment, in the first count the charge of murder. Murder carries with it a period of incarceration of, in your case at the Marysville Reformatory, mandatorily imposed 15 years to life imprisonment. In addition, there is a gun specification contained in that indictment, and that is a period of actual incarceration of three years which must be - 5 - served prior to and consecutive with the sentence of 15 years to life. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: In connection with Count 3, the sentence for persons who plead guilty to aggravated robbery is a term of five, six, seven, eight, nine or ten, up to 25 years, and the gun specification is an additional three-year actual period of incarceration which must be served prior to and consecutive with whatever sentence is imposed in that court. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you understand, in connection with the charge of aggravated robbery, you can be given a fine of up to $10,000? Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Now, has anyone promised you anything or forced you to do this? THE DEFENDANT: No, sir. THE COURT: Do you understand the nature of the penalty structure as I have explained it to you? THE DEFENDANT: Yes, sir, I have. (Tr. 23-27). Appellant then entered a plea of guilty to murder and aggravated robbery, both with the gun specification. The trial court sentenced appellant to fifteen years to life for the murder charge plus three years actual incarceration for the gun specification. The three-year term for the gun specification was - 6 - to be served prior to and consecutive to the sentence for the murder. Appellant received a sentence of ten to twenty-five years for the aggravated robbery count to be served concurrent with the murder sentence. Appellant assigns the following error upon appeal: THE TRIAL COURT VIOLATED APPELLANT'S UNITED STATES CONSTITUTIONAL RIGHTS AND OHIO CONSTITUTIONAL RIGHTS BY ACCEPTING HER PLEA OF GUILTY. Finding the assignment of error to lack merit, the judgment of the trial court is affirmed. In her assignment of error, appellant contends the trial court violated her constitutional rights by accepting her guilty plea. Appellant asserts the trial court did not adequately inform her of her constitutional rights or her statutory rights under Crim. R.11. Crim.R. 11(C) provides in pertinent 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 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 jury trial, to confront witnesses against him, to have compulsory process for obtaining wit- nesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial - 7 - at which he cannot be compelled to testify against himself. (3) With respect to aggravated murder committed on and after January 1, 1974, the defendant shall plead separately to the charge and to each specification, if any. A plea of guilty or no contest to the charge waives the defendant's right to a jury trial, and before accepting such plea the court shall so advise the defendant and determine that he under- stands the consequences of such plea. The underlying purpose of Crim.R. 11(C) is to convey certain information to the defendant in order to allow him or her to make a voluntary and intelligent decision of whether or not to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480. Two separate standards are applied when a reviewing court considers a claim that a trial court did not satisfy its duty under Crim.R. 11. State v. Anderson (1995), 108 Ohio App.3d 5, 8-9. With respect to constitutional rights, a trial court must strictly comply with the dictates of Crim.R. 11(C). State v. Colbert (1991), 71 Ohio App.3d 734. However, a trial court need not use the exact language found in that rule when informing a defendant of his constitutional rights. Rather, a trial court must explain those rights in a manner reasonably intelligible to the defendant. Ballard, supra, at paragraph two of the syllabus. For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required. Rather the trial court must substantially comply provided no prejudicial effect occurs before a guilty plea is accepted. The test is whether the plea would otherwise have been made. State v. Stewart (1977), 51 Ohio St.2d 86. - 8 - "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implication of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108. If the defendant receives the proper information, it then can be assumed he understood that information. State v. Carter (1979), 60 Ohio St.2d 34. Appellant first argues the trial court did not adequately explain her right to have compulsory process to procure the attendance of witnesses on her behalf because the trial court only told appellant that her lawyer had the right to subpoena witnesses to testify for her at trial. In State v. Huff (May 8, 1997), Cuyahoga App. No. 70996, unreported, this court held: We believe that informing a defendant that he had the right to subpoena a witness is tantamount to informing a defendant that a witness so subpoenaed is compelled to appear at trial. We believe the average person understands the word "subpoena" to mean that the authority of the court stands behind the order to appear in a judicial proceeding. Indeed, defendant makes no argument that he gave the trial court's statement any different interpretation. Under the circumstances, we find no meaningful difference between the language used by the trial court and that set forth in Crim.R. 11(C). Id., at 4-5. The reasoning of Huff is persuasive. There is nothing in the record to indicate appellant understood that "subpoena" does not mean a witness will be compelled to appear at trial. It is commonly understood a subpoena compels the appearance of a witness. The trial court complied with Crim.R. 11(C). - 9 - Appellant's argument the trial court did not tell her she was waiving her right to confront her accusers because the trial court said cross-examine and not confront is similar to her "subpoena" argument. Obviously, if an adverse witness testifies for the state, the witness will be physically present, will be under oath, and his demeanor will be observable to all those present. As the court in Ballard, supra, held, a rote recitation of the exact language of Crim.R. 11(C) is not required. Rather, the explanation of the defendant's rights under Crim.R. 11(C) must be reasonably intelligible to the defendant. Id., at 480. The court in Anderson, supra, used the phrase "cross-examine" to mean the defendant's right to confront his accusers. The trial court did not err by using the term "cross-examine" to explain appellant's right to confrontation. Finally, appellant contends the trial court erred by not in- forming her that the offense for which she would plead guilty was non-probationable. A review of the record indicates the trial court informed appellant that the charge of murder had a mandatory term of fifteen years to life imprisonment. The trial court further explained that the gun specification carried a sentence of three years actual incarceration while the sentence for aggravated robbery could be from five to twenty-five years imprisonment. Where an individual is indicted on a charge of aggravated murder, with specifications thereto, and the trial court accepts a plea of guilty to the lesser included offense of murder (R.C. 2903.02) without personally advising the defendant that he is ineligible for probation, - 10 - such omission does not constitute prejudicial error, and there is substantial compliance with the provisions of Crim.R. 11. (Paragraph one of the syllabus in State v. Caudill, 48 Ohio St.2d 342, modified.) Stewart, supra, at syllabus. Substantial compliance will be found where circumstances indicate that the defendant knew he was ineligible for probation and was not prejudiced by the trial court's failure to comply with Crim.R. 11(C)(2)(a). Nero, supra, at syllabus. The test is whether the plea would otherwise have been made. State v. Thrower (1989), 62 Ohio App.3d 359, 383. The record indicates both the prosecutor and trial court stated the offenses to which appellant agreed to plead carried a mandatory term of imprisonment. Further, appellant's counsel indicated he explained the matter thoroughly with appellant. There is nothing in the record to indicate appellant would not have entered into the plea agreement if the trial court stated she could not receive probation. When a trial court informs a defendant that an offense carries a mandatory term of imprisonment, it is tantamount to stating the offense is non-probational. Appellant could not be placed on probation if she was required to be incarcerated by statute. Appellant's assignment of error lacks merit. Judgment affirmed. - 11 - 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. JOHN T. PATTON, P.J. and THOMAS J. PARRINO, J.* CONCUR. LEO M. SPELLACY JUDGE (*Thomas J. Parrino, Retired Judge of the Eighth Appellate District, Sitting by Assignment) N.B. This 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(B) 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 - 12 - journalization of this court's announcement of decision by the .