COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70786 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MILDRED BETANCES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 10, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-331255 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: RANDI MARIE OSTRY (#0042306) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: LAURA T. PALINKAS (#0039722) 4329 West 10th Street Cleveland, Ohio 44109 - 2 - SPELLACY, J.: Defendant-appellant, Mildred Betances ("appellant"), appeals from her conviction for drug trafficking in violation of R.C. 2925.03 to which she pled guilty. Appellant assigns the following error for our review: APPELLANT'S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE ON THE GROUND THAT IT WAS INDUCED BY THE INCRIMINATING EVIDENCE WHICH THE POLICE HAD ILLEGALLY OBTAINED AND ABOUT WHICH THE APPELLANT WAS EITHER COMPELLED TO TESTIFY OR GIVE UP HER FOURTH AMENDMENT CLAIMS AT HER SUPPRESSION HEARING. Finding appellant's appeal lacks merit, we affirm the judgment of the trial court. I. On December 11, 1995, appellant was issued a two-count indictment. Count I charged appellant with drug trafficking in violation of R.C. 2925.03(A)(2). Count II charged appellant with drug trafficking in violation of R.C. 2925.03(A)(9) and specifically set forth that appellant did knowingly possess a controlled substance, to-wit: Cocaine, a schedule II drug, being an amount equal to or exceeding one hundred times the bulk amount. On January 22, 1996, appellant filed a motion to suppress. On May 17, 1996, the trial court held a hearing on appellant's motion. Before the trial court ruled on appellant's motion to suppress, however, appellant, pursuant to a plea agreement, withdrew her not guilty pleas to counts I and II and pled guilty to the amended indictment. Pursuant to the agreement, the State agreed to nolle - 3 - count I of the indictment and amended count II of the indictment to drug trafficking in violation of R.C. 2925.03(A)(6), "being an amount equal to or exceeding three times the bulk amount, but less than 100 times the bulk amount." Appellant also agreed to withdraw her motion to suppress as part of the agreement. The trial court accepted appellant's guilty plea and sentenced appellant to an indefinite term of three years to fifteen, of which three years shall be actual incarceration. II. At the suppression hearing, appellant testified to the following pertinent facts: Appellant met an individual named Dagoberto Henriquez in New York. Henriquez told appellant that she could make some money by accompanying him to Cleveland where he was going to bring and sell drugs. After arriving at the train station in Cleveland, Henriquez told appellant to follow him. Henriquez passed appellant a blue bag containing the drugs and told her to sit down. While appellant was sitting down in the train station waiting for Henriquez, she was approached by the police. III. In her sole assignment of error on appeal, appellant contends that because she was forced to testify at the suppression hearing, her guilty plea was induced by incriminating evidence illegally obtaineed and, therefore, was not valid. - 4 - Upon a careful review of the hearing transcript, we find no basis for appellant's contention that her plea of guilty to the amended indictment was not knowingly, willingly and voluntarily made. Initially, we note that appellant makes her argument for the first time on appeal. Upon a review of the record and transcript below, we do not find that appellant requested to withdraw her guilty plea in compliance with Crim. R. 32.1. A failure to assert an alleged error in the trial court waives that error on appeal. State v. Stokes (March 7, 1996), Cuyahoga App. No. 69032, unreported, citing State v. Awan (1986), 22 Ohio St.3d 120, 122. Therefore, her failure to raise this argument in the court below ordinarily precludes us from reviewing this issue on appeal. Stokes, supra, citing State v. Steward (March 3, 1994), Cuyahoga App. No. 64479, 64480, unreported. Notwithstanding this omission, we find appellant's guilty plea was entered pursuant to the requirements of Crim.R. 11(C) and was therefore voluntarily and knowingly given. The conditions for acceptance of a guilty plea are set forth in Crim.R. 11(C)(2). Crim.R. 11(C)(2) provides: 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 the maximum penalty involved, and, if applicable, that he is not eligible for probation. - 5 - (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 a jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. The trial court when accepting a guilty plea must comply with Crim.R. 11. State v. Nero (1990), 56 Ohio St.3d 106, 108. Substantial compliance with Crim.R. 11(C) is determined upon a review of the totality of the circumstances. Stokes, supra; State v. Theissen (March 24, 1994), Cuyahoga App. No. 64493, 64494, unreported. Substantial compliance does not require rote recitation of the rule; the conversation need only be "reasonably intelligible" to meet the standard. Theissen, supra, citing State v. Ballard (1981), 66 Ohio St.2d 473. In the present case, the prosecutor set forth the terms of the plea agreement and appellant's counsel stated that appellant understood the consequences of entering a guilty plea to the amended indictment, and that, as part of the agreement, the motion to suppress would be withdrawn. (Tr. 30-34). The court then proceeded to set forth appellant's constitutional rights and obtained responses from appellant which demonstrated that she waived her rights pursuant to Crim.R. 11. When asked if she - 6 - understood that by entering a plea of guilty she was giving up the constitutional rights the court outlined for her and would be sentenced immediately, appellant responded "Yes, I understand." (Tr. 38). The court then set forth the amended terms of the indictment and the possible sentence. When asked if she understood that count II of the indictment, as amended, is that of drug trafficking, a felony of the second degree, and bears a possible penalty of incarceration for 2, 3, 4, 5 to 15 years of which three years will be actual time served, appellant answered "Yes, I understand." (Tr. 38). And, although appellant contends on appeal that her plea was coerced, appellant did, in fact, confirm at the hearing that her plea was made voluntarily, of her own free will. (Tr. 39). Accordingly, we find the trial court was in substantial compliance with Crim.R. 11 in accepting appellant's guilty plea to one count of drug trafficking. Judgment 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 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. TERRENCE O'DONNELL, P.J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY JUDGE 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 journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). - 8 - - 9 - - 10 - - 11 - - 12 - .