COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70798 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MARVIN SMITH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 29, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-315871. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John F. Corrigan, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Kathleen W. Wood, Esq. Assistant County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Marvin Smith, defendant-appellant, appeals from his plea of guilty to the offense of drug trafficking in violation of R.C. 2925.03 in the Cuyahoga County Court of Common Pleas, Criminal Division. Defendant-appellant raises one assignment of error concerning the trial court's compliance with Crim.R. 11. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On November 7, 1994, a six-count indictment was issued for Marvin Smith, defendant-appellant. Counts one and two alleged violations of R.C. 2925.03 (drug trafficking) and R.C. 2925.11 (drug abuse) on September 26, 1994. Counts three and four alleged similar violations occurring on September 30, 1994. Count five alleged a violation of R.C. 2923.24 (possession of criminal tools) on September 30, 1994. Count six alleged a violation of R.C. 2923.13 (having a weapon while under a disability) on September 30, 1994. Counts one and three contained a specification alleging the offense was committed within one hundred feet of a juvenile or within the view of a juvenile. Defendant-appellant entered a plea of not guilty to all charges. On March 2, 1995, defendant-appellant entered a plea of guilty to count three as charged (drug trafficking with specification), a felony of the second degree. The remaining counts were nolled. After consulting with the prosecutor, the trial court improperly -3- advised defendant-appellant that the sentencing range was 2, 3, 4, 5-10 years instead of 2, 3, 4, 5-15 years. On March 27, 1995, defendant-appellant was sentenced to a five to ten year term of incarceration. On October 27, 1995, defendant-appellant filed a motion to withdraw his guilty plea. On December 7, 1995, defendant-appellant and his original counsel were in court on the motion to withdraw his plea. At that time, the court informed defendant-appellant that it had been notified of the error in its original sentence. The court stated that it had reviewed the file including a plea agreement form signed by defendant-appellant on March 2, 1995. That agreement indicated the correct maximum sentence. The trial court then asked if defense counsel had anything further to say concerning the sentencing of defendant-appellant. Defense counsel responded that he explained to defendant- appellant that the maximum sentence for count five was fifteen years. Thereafter, the parties included the proper terms of incarceration for a felony of the second degree in a plea agreement which was signed by the attorneys of record and defendant-appellant. The plea agreement, which was not signed by the judge, was entered into the record. When the trial court asked defendant-appellant if he had anything to say, defendant-appellant responded that he wanted to withdraw his guilty plea. The trial court stated that the motion to withdraw the guilty plea would be addressed after the sentence was corrected and then resentenced defendant-appellant's to five -4- to fifteen years of incarceration. The trial court subsequently denied the motion to withdraw his guilty plea. This appeal follows. II. ASSIGNMENT OF ERROR Marvin Smith, defendant-appellant, states as his sole assignment of error: I. THE TRIAL JUDGE DID NOT SUBSTANTIALLY COMPLY WITH CRIM.R. 11(C)(2)(A) WHEN IT INFORMED MR. SMITH THAT HE WAS SUBJECT TO AN INDEFINITE TERM OF INCARCERATION OF TWO, THREE, FOUR, OR FIVE YEARS TO TEN YEARS THEN SENTENCED HIM TO FIVE TO FIFTEEN YEARS TERM OF INCARCERATION. A. ISSUE RAISED: WHETHER THE TRIAL COURT SUBSTANTIALLY COMPLIED WITH CRIM.R. 11. Defendant-appellant argues the trial court did not substantially comply with Crim R.11 when it took defendant- appellant's guilty plea. Specifically, defendant-appellant argues that, when considering the totality of the circumstances, the trial court did not ensure defendant-appellant was aware of the maximum penalty involved in the case before accepting his guilty plea. Moreover, defendant-appellant argues he would not have agreed to the plea if he had known the maximum sentence was fifteen years and that he has done everything possible to withdraw his guilty plea. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: GUILTY PLEAS AND CRIM.R. 11. -5- Crim.R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense provides: (1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. (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 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. In order to comply with Crim.R. 11(C), a trial court must determine whether the defendant fully comprehends the consequences of his plea of guilty. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty. -6- Adherence to the provisions of Crim.R. 11(C)(1) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or no contest. (Emphasis added.) State v. Caudill (1976), 48 Ohio St.2d 343, paragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a trial court in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St.2d 86, at 92. Literal compliance with Crim.R. 11 is the preferred practice. However, the fact that the trial court did not strictly comply with Crim.R. 11 does not compel vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. State v. Nero (1990), 56 Ohio St.3d 106. In Nero, the Ohio Supreme Court stated: Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 5676, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id. at 108. -7- C. ALTHOUGH THE PLEA WAS DEFECTIVE, EVIDENCE ESTABLISHES DEFENDANT-APPELLANT WAS NOT PREJUDICED. In the case sub judice, there is no dispute that the trial court failed to properly inform defendant-appellant of the correct maximum sentence: THE COURT: Did I already ask if anyone's made any promises, threats or inducements to cause you to enter this plea? DEFENDANT: Yes. THE COURT: I've asked it? DEFENDANT: Mm-hmm. THE COURT: The charge, Marvin, of drug trafficking, in violation of 2925.03, with the juvenile specification of which you are desirous of pleading guilty, is a felony of the second degree, punishable by a possible term of incarceration of two, three, four, five to ten, as well as a fine of up to $7,500, and a mandatory drug fine of $5,000. Do you understand the nature of that charge, and the penalties as I've outlined it? DEFENDANT: Yes. * * * THE COURT: *** It is up to each of you to be completely honest, accurate, and cooperative in all respects with the probation department. Any lack of cooperation, dishonesty with them will merit you the maximum term of incarceration imposed by law. Marvin, in your case that's five to ten. DEFENDANT: Yes. Thus, when examining the oral dialogue between the trial court and defendant-appellant, it is clear that the trial court -8- improperly informed defendant-appellant of the maximum sentence for pleading guilty to the second degree felony. The state argues, however, that the plea agreement signed by defendant- appellant and defense counsel's statements to the court on December 5, 1995 demonstrate defendant-appellant's knowledge and comprehension that the maximum term of incarceration for drug trafficking was fifteen years. We find the state's argument unpersuasive. It is important to note the distinction between this case and those in which the trial court omits information when taking a defendant's plea. In those cases, a review of the totality of circumstance and/or record could reveal that defendant was provided with that information by defense counsel or by someone else. See Nero, supra; Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34; State v. Flint (1986), 36 Ohio App.3d 4. In this case, the trial court misstated the maximum term and in doing so, issued a sentence contrary to law. See State v. Carroll (1995), 104 Ohio App.3d 372; State of Ohio v. Timothy Brockman (Feb. 23, 1989), Cuyahoga App. No. 55037, unreported. It is well established that a trial court must satisfy itself that the defendant knows the maximum penalty applicable to the offense involved before accepting a plea of guilty. State v. Gibson (1986), 34 Ohio St.3d 146; State v. Wilson (1978), 55 Ohio App.2d 64. This is usually accomplished by stating to the defendant the exact maximum sentence for each crime as provided by law. State v. Johnson (1988), 40 Ohio St.3d 130. -9- After a review of the record, it is evident that nothing in the March 2nd hearing gave the trial court reason to believe that defendant-appellant knew the potential maximum penalties before he pled guilty. Defense counsel's statements at the December 7, 1995 hearing and the plea agreement entered into by the parties (which was not signed by the trial judge) does not cure the defective plea. However, that does not end our inquiry. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra at 93. First, we note plaintiff-appellee's contention that defendant-appellant suffers no prejudice unless and until he serves ten years in prison is untenable. The test is whether the plea would have otherwise been made. Id.; Nero, supra. After reviewing the record, we find there is sufficient evidence establishing defendant- appellant would have entered a plea of guilty if the trial court informed defendant-appellant of the correct maximum sentence. At the December 7, 1995, hearing, defendant-appellant's attorney informed the court that he had spoken with defendant-appellant in detail concerning the plea bargain and that defendant-appellant understood the maximum sentence was fifteen years. Moreover, defendant-appellant signed the actual plea agreement which states the maximum sentence was fifteen years. While this evidence does not cure the defective plea, it does establish defendant- -10- appellant would have entered into the plea agreement if the correct maximum sentence had been provided by the trial court. Additionally, defendant-appellant was charged in a six count indictment. Defendant-appellant pled guilty to one count in exchange for the other five counts being nollied. In such circumstances, we can reasonably infer that his plea was a "wiser course to follow" made in order to obtain a favorable sentence. See Stewart, supra at 93; State v. Calvillo (1991), 76 Ohio App.3d 714. Therefore,y while the trial court's plea was defective under Crim.R. 11, there is sufficient evidence in the record establishing defendant-appellant would have entered into the plea agreement if the maximum sentence of fifteen years had been provided by the trial court. Defendant-appellant's sole assignment of error is not well taken. 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. SPELLACY, J. and ROCCO, J., CONCUR. DAVID T. MATIA 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 .