COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70996 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DOUGLAS HUFF : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 8, 1997 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-300048 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public ARTHUR A. ELKINS, ESQ. Defender Assistant County Prosecutor DARIN THOMPSON, ESQ. 8th Floor Justice Center Assistant Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, OH 44113 100 Lakeside Place Cleveland, OH 44113 - 2 - PATTON, J., Defendant Douglas Huff entered a guilty plea to one count of robbery. In this appeal from that plea, he complains that the trial judge failed to explain in a manner reasonably intelligent to defendant that he had the right against self-incrimination and could confront witnesses against him. The issue in this appeal is whether the trial judge substantially complied with Crim.R. 11(C)(2)(c) when explaining those rights. We find no error and affirm. Crim. R.11(C) states: (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: * * * (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. Defendant complains the trial court failed to inform him (1) that the privilege against self-incrimination includes the guarantee that his silence could not be used against him and (2) that the right to compel cross-examine the state's witnesses did not specifically inform him that he had the right to confront his accusers. Crim.R. 11(C) contains what might best be described as certain - 3 - "core" constitutional rights. Those rights are the privilege against self-incrimination, the right to a trial by jury, the right to confront one's accusers, and the right to compel attendance of witnesses. State v. Ballard (1981), 66 Ohio St.2d 473, 477, citing Boykin v. Alabama (1969), 395 U.S. 238, 243. The supreme court has stated that the best method of apprising a defendant of those rights "is to use the language contained in Crim.R. 11(C) ***." Ballard, supra, at 479. However, the failure to do so is not fatal to the plea, and the plea will be upheld if the language used by the court is sufficient to (1) enable the court to conclude that the defendant understands his plea waives his constitutional right to trial and (2) the language used adequately informs the defendant of other rights and incidents of a trial. Id. at 480. This requires a look at the totality of the circumstances to determine whether the defendant "objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108. During its colloquy with defendant, the trial court informed defendant: "Do you understand that at your trial or trials, you'd have the right to take the witness stand there and testify on your own behalf, or you would have the right during your trial or trials, not to take that witness stand at all? * * * - 4 - Do you understand that at your trial or trials, you would have the right to have your attorney cross-examine each and every one of the State's witnesses? * * * Do you understand that at your trial or trials, your attorney, he could subpoena witnesses to testify on your behalf?" Although the trial court did not inform defendant that he had the right "to have compulsory process for obtaining witnesses in his favor," the trial court's statement that defendant could have his attorney subpoena witnesses on defendant's behalf was more than adequate to inform defendant of the right to compulsory process. The right to compulsory process has been described as the right "to offer the testimony of witnesses, and to compel their attendance, if necessary ***." Washington v. Texas (1967), 388 U.S. 14, 19. Stated differently, the "cases establish, at a minimum, that criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt." Pennsylvania v. Ritchie (1987), 480 U.S. 39, 56. 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 - 5 - gave the trial court's statement any different interpretation. Under circumstances, we find no meaningful difference between the language used by the trial court and that set forth in Crim.R. 11(C). As for defendant's complaint that the trial court failed to inform him that the privilege against self-incrimination includes the guarantee that his silence could not be used against him, we find nothing in Crim.R. 11(C)(2)(c) that would require the trial court to so advise a defendant. In Nero, supra, the court summarized this component of Crim.R. 11(C) as "the Fifth Amendment privilege against self-incrimination." 56 Ohio St.3d at 107. In full compliance with the rule, the trial court informed defendant that he had the right not to take the witness stand. We have recently held that the language used by the trial court constituted "unmistakable language" sufficient to advise a defendant of the Fifth Amendment privilege against self- incrimination. See State v. Pyles (Apr. 10, 1997), Cuyahoga App. No. 69885, unreported. We find no precedent that would require the trial court to go beyond the statement used, and defendant does not suggest that any such authority exists. In his pro se assignment of error, defendant complains that the trial court abused its discretion by refusing to permit him to withdraw his guilty plea during sentencing. Nothing in the record suggests that defendant made a formal request to withdraw his plea. At sentencing, when asked if he had - 6 - anything to say, defendant stated: "Well, I feel as though, you know, I had the plea agreement, and I did the agreement, but I am not guilty of the crime. I didn't rob Officer Rowley of his gun. It was a struggle. I was a participant in a traffic accident. I feel as though Officer Rowley didn't do his job right." At that point, defense counsel interrupted, and explained on the record the circumstances behind the plea and how he discussed the consequences of the plea with defendant. Defense counsel made the following statement: MR. ADRINE: What I am saying to you is this: If it is your opinion at this stage of the game that you want to withdraw your previously entered pleas of guilty -- MR. HUFF: No. MR. ADRINE: -- and go to trial, the Court and I would see if we can facilitate that for you. But you did enter a plea of guilty, so the facts there are contained in the probation report, and we don't want to try this case again. But if it is your feeling that you want to withdraw that previously-entered plea of guilty and try the case, then you tell the Court so, tell me now, and we will see what can be done about that. If not, you have already entered a plea to the two charges. Do you understand what I am saying? MR. HUFF: Yeah, I understand what you are saying. Defendant then gave his version of what transpired at the time of his arrest. He did not renew his request to withdraw his guilty plea and the trial judge imposed the sentence for the offense. In State v. Kandiko (Feb. 9, 1995), Cuyahoga App. Nos. 66888 - 7 - and 66889, unreported, we held that protestations of innocence occurring at sentencing were not the equivalent of a motion to withdraw a guilty plea. The cited portion of the transcript clearly shows that defendant did not attempt to withdraw his guilty plea. Despite assurances that both the court and counsel would try to facilitate a trial, defendant decided not to go to trial. In this posture, the trial court had no reason to consider a plea withdrawal. Similarly, defendant's argument that he protested his innocence during his bindover from the municipal court is unavailing. Although defendant has attached portions of a transcript of his bindover to his pro se brief, the transcript itself is not a part of the record on appeal. More important, defendant entered his guilty plea following the bindover. At the time he entered the plea, he did not protest his innocence, so the trial court had no obligation to insure that the plea was in defendant's best interests. State v. Hunter (Jan. 25, 1996), Cuyahoga App. No. 68447-68451, and 69306, unreported at 4. The assigned errors are overruled. Judgment affirmed. - 8 - 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 Court of Common Pleas 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. PORTER, P.J. O'DONNELL, J., CONCUR. JUDGE JOHN T. PATTON 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 .