COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70728 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DONALD WILLIAMS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 10, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-318022. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John R. Kosko Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Donald Williams, pro se #A302-760 N.C.C.I. P.O. Box 1812 670 Marion-Williamsport Rd.,E. Marion, Ohio 43301-1812 - 2 - SWEENEY, JAMES D., C.J.: Defendant-appellant Donald Williams (d.o.b. January 21, 1952), pro se, appeals from his guilty plea and sentence to the following offenses committed against his thirteen-year-old step-daughter: (1) Attempted Rape [R.C. 2923.02 and 2907.02], as charged in count two of the indictment; (2) Gross Sexual Imposition [R.C. 2907.05], 1 as charged in count five of the indictment. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the defendant, on the date of the commencement of the trial, retracted his plea of not guilty and accepted a plea bargain offered by the prosecution. Pursuant to Crim.R. 11, the trial court immediately conducted a plea hearing on February 1, 1995, in the presence of the prosecution, the defendant and his counsel, public defender Frank Gorczyca. At the plea hearing, the prosecution detailed the offenses, the possible range of punishments for each offense, and the plea agreement. The trial court then repeated this information to the defendant before questioning the defendant concerning the waiver of constitutional rights listed in Crim.R. 11 which the court is required to inquire about before accepting a guilty plea. When questioned further, the defendant testified that: (1) no one had made any threats, promises or inducements to cause him to change 1 The following offenses were nolled as part of the plea bargain: (1) Rape [R.C. 2907.02]; (2) two counts of Attempted Rape [R.C. 2923.02 and 2907.02]. - 3 - his plea; (2) he understood the nature of the charges and the possible penalties outlined by the court; (3) there was nothing associated with the case or the proceeding which he did not understand; (4) he was satisfied with the representation of defense counsel; (5) his plea was voluntary; (6) he was not under the influence of any drugs or medications; and, (7) he has a Bachelor of Science degree from the State of Ohio's Bowling Green State University. The trial court then remanded the defendant to the probation department for the preparation of a pre-sentence investigation report. The court conducted a sentencing hearing on February 27, 1995, at which time the offender received 8 to 15 years on count two and 18 months on count five, the terms to run consecutive, plus court 2 costs . This appeal followed presenting four assignments of error. I THE DEFENDANT-APPELLANT DONALD WILLIAMS WAS DEPRIVED OF THE REASONABLE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL FRANK GORCZYCA AS GUARANTEED UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, WHERE APPOINTED COUNSEL INDUCED DEFENDANT- APPELLANT TO CHANGE HIS PLEA TO GUILTY, TOLD DEFENDANT-APPELLANT NOT TO SAY HE HAD BEEN PROMISED ANYTHING, PROMISED DEFENDANT-APPELLANT THAT HE WOULD RECEIVE PROBATION IN SIX MONTHS. THE DEFENDANT-APPELLANT PLED GUILTY TO THE CHARGES AGAINST HIM ONLY BECAUSE OF HIS BELIEF THAT HE WOULD RECEIVE PROBATION SIX MONTHS 2 The terms of imprisonment imposed by the trial court are the maximum terms available for the respective offenses. - 4 - AFTER THE INCARCERATION, RENDERING THE DEFENDANT-APPELLANT'S PLEA VOID, IN THAT HIS PLEA WAS NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY MADE, BUT HAD BEEN INDUCED BY PROMISES MADE BY TRIAL COUNSEL FRANK GORCZYCA, PROMISES HE HAD NO WAY OF KEEPING, IN VIOLATION OF CRIM.R. 11, AS TO UNDERMINE THE CONFIDENCE OF THE PROFESSIONAL CODE OF ETHICS AS WELL THAT HAD IT NOT BEEN FOR COUNSEL'S DEFICIENCY THE OUTCOME WOULD HAVE BEEN OTHERWISE. In this first assignment, appellant appears to argue that his plea was not knowing, voluntary and intelligent due to his assigned counsel's alleged ineffective assistance of counsel in coercing the change of plea through a series of false promises and misinformation made to the client. Having reviewed the record on appeal, we note that there is absolutely no evidence in the record demonstrating the claimed error on appeal relating to assigned counsel's performance. Furthermore, a review of the plea hearing transcript belies appellant's assertion that the plea was unknowing, involuntary and unintelligent. The record amply reflects that Crim.R. 11's dictates were complied with by the trial court in the taking of the plea. See State v. Carter (1979), 60 Ohio St.2d 34; State v. Stewart (1977), 51 Ohio St.2d 86. The first assignment of error is overruled. II THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT'S FIFTH AND FOURTEENTH AMENDMENT RIGHT OF DUE PROCESS BY IMPOSING A CONSECUTIVE SENTENCE TO A MAXIMUM TERM OF IMPRISONMENT OF 9 1/2 TO 15 YEARS IN VIOLATION OF R.C. 2929.11 AND 2941,25, IN THAT THE TWO OFFENSES ARE ALLIED OFFENSES OF SIMILAR IMPORT - 5 - AND DEFENDANT-APPELLANT CANNOT BE PUNISHED MULTIPLY BECAUSE THE STATUTE PROHIBITS A CONVICTION OF BOTH IN THE ABOVE STATED STATUTES OF THE OHIO REVISED CODE. In this assignment, appellant argues that the two offenses to which he pled guilty, Attempted Rape and Gross Sexual Imposition, are allied offenses of similar import under the facts presented due to the presence of the same animus, therefore he could only be convicted and sentenced for one of them. This argument was not presented before the trial court and is therefore waived for purposes of appeal. First Federal S. & L. Assn. of Akron v. Cheton & Rabe (1989), 57 Ohio App.3d 137; State v. Williams (1977), 51 Ohio St.2d 112. The second assignment of error is overruled. III DEFENDANT-APPELLANT DONALD WILLIAMS WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, FRANK GORCZYCA, WHO FAILED TO ADVISE (SIC) OF HIS CONSTITUTIONAL RIGHTS AND ERRONEOUS PROBATION ELIGIBILITY ADVICE WAS INEFFECTIVE ASSISTANCE OF COUNSEL, RENDERING DEFENDANT-APPELLANT'S PLEA OF GUILTY INVALID ENTITLING HIM TO A TRIAL BY JURY VIOLATING THE DEFENDANT-APPELLANT'S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 TO THE OHIO CONSTITUTION WHERE THE COURT REJECTED DEFENDANT-APPELLANT'S SHOCK PROBATION WITHOUT ADVISING HIM THAT UPON ACCEPTING A PLEA OF GUILTY BARRED HIM FROM WITHDRAWING A PLEA OF GUILTY. In this assignment, appellant argues that his assigned trial counsel was ineffective by misleading him into changing his plea on - 6 - the belief of the defendant-appellant that he was eligible for, and would receive, shock probation. A review of the record indicates that the nature of the charges and the potential sentence was explained to the defendant, that the defendant stated that he understood this information, as well as all other aspects of the proceeding and case, had no questions concerning anything about the case or proceeding, was satisfied with his assigned counsel's representation, and that no one had made any promises, threats or inducements to cause him to change his plea to guilty. The record on appeal does not demonstrate the claimed error or inducement for his change of plea. The third assignment of error is overruled. IV THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT DONALD WILLIAMS IN PASSING THE MAXIMUM PRISON SENTENCE ALLOWED BY LAW WITHOUT CONSIDERING THE FACTORS SET FORTH IN R.C. 2929.12. In this assignment, appellant, relying on State v. Cable (1985), 24 Ohio App.3d 88, argues that the trial court erred in failing to state on the record that it had considered the aggravating and mitigating sentencing factors contained in R.C. 2929.12 prior to announcing its sentence imposing the maximum imprisonment possible. The record reflects that the court prepared for the sentencing hearing by reviewing the police reports, presentence investigation report and the probation report. The court also reviewed letters - 7 - authored by the defendant and addressed to the victim, the mother of the victim and the court. The court next asked the defendant if he had anything to say to the court before sentence was announced, but the defendant, after hearing his counsel's remarks, had nothing to add. In State v. Cyrus (1992), 63 Ohio St.3d 164, the court stated the following with reference to R.C. 2929.12: "A silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12." State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus; accord State v. O'Dell (1989), 45 Ohio St.3d 140, 147, 543 N.E.2d 1220, 1227. Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria. We also note that a trial court has broad discretion in sentencing within statutory limits and a reviewing court should not disturb the sentence of the trial court in the absence of an abuse of discretion. State v. Grigsby (1992), 80 Ohio App.3d 291, 302; State v. Yontz (1986), 33 Ohio App.3d 342, 343; State v. Austin (November 2, 1995), Cuyahoga App. No. 68478, unreported. In the case sub judice, it is noted that the argument presented in this assignment was not presented before the trial court at the time of sentencing and is therefore waived for purposes of appellate review. State v. Williams, supra. Even had the issue been preserved for appeal, we note that the appellant has come forward with no evidence to rebut the presumption that the - 8 - trial court considered the required sentencing factors. Finally, we note that the trial court reviewed the various reports prepared in this case. Such a review satisfies the trial court's obligations under the sentencing law. State v. Davis (December 30, 1993), Cuyahoga App. No. 64571, unreported, citing State v. Turner (1987), 37 Ohio App.3d 38, 40. The fourth assignment of error is overruled. 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. ANN DYKE, J., and KENNETH A. ROCCO, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 .