COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70998, 70999 and 71000 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ALVIN WILLIAMS : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 25, 1997 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, CR-3088828, CR-315565 and CR-310013. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Deborah Naiman, Esq. Gail Denise Baker, Esq. Assistant County Prosecutors Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Timothy R. Sterkel, Esq. 4425 Mayfield Road Cleveland, OH 44121 Alvin Williams, pro se No. 301-405 Trumbull Correctional Institute P.O. Box 901 Leavittsburg, OH 44430 DAVID T. MATIA, J.: 2 Alvin Williams, defendant-appellant, appeals from his plea of guilty to the offenses of drug trafficking, in violation of R.C. 2925.03, and having a weapon while under disability, in violation of R.C. 2923.13. Defendant-appellant's counsel assigns two errors for this court's review. In addition, defendant-appellant has filed a pro se appellate brief in which he assigns three additional errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On May 23, 1994, Alvin Williams, defendant-appellant, and a co-defendant were indicted by the Cuyahoga County Grand Jury, Case No. CR-308828 in a five count indictment. Four counts in the indictment named defendant-appellant. The first and second counts of the indictment charged defendant-appellant with drug trafficking in violation of R.C. 2925.03. Each count contained two furthermore clauses as well as a violence specification. Count three charged defendant-appellant with possession of criminal tools in violation of R.C. 2923.24 and also contained a violence specification. The fourth count charged defendant-appellant with drug abuse in violation of R.C. 2925.11 and contained a violence specification as well. On June 8, 1994, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all charges contained in the indictment for Case No. CR-308828. On June 27, 1994, defendant-appellant was the subject of a second indictment from the Cuyahoga County Grand Jury, Case No. 3 310013. The single count indictment charged defendant-appellant with a drug law violation, R.C. 2925.11. The indictment also contained two furthermore clauses and a violence specification. On July 20, 1994, defendant-appellant was arraigned in Case No. CR-310013 whereupon a plea of not guilty was entered as to the single count indictment. At this time, the trial court appointed private counsel to represent defendant-appellant who had been found to be indigent. On December 19, 1994, defendant-appellant's court-appointed attorney made an oral motion to withdraw as counsel for defendant- appellant citing the following reasons: 1) defendant-appellant's family wished to retain private counsel; 2) defendant-appellant's family possessed the financial means to pay for private counsel; and 3) communication problems had arisen with defendant-appellant which could potentially impair effective legal representation. On December 21, 1994, the trial court granted the motion to withdraw and newly retained counsel entered an appearance on behalf of defendant-appellant. In the interim, on October 25, 1994, defendant-appellant was the subject of a third indictment from the Cuyahoga County Grand Jury in Case No. CR-315568. The single count indictment charged defendant-appellant with having a weapon while under disability in violation of R.C. 2923.13 and contained a violence specification as well as a firearm specification. On December 27, 1994 defendant-appellant appeared with retained counsel and expressed his intention to enter into a plea 4 agreement. As part of the plea agreement, defendant-appellant agreed to submit a waiver of indictment in Case No. CR-315568. The terms of the plea agreement were then set forth by the state as follows: MS. NAIMAN: With the understanding that there will be a change in the defendant's plea forthcoming on each of these three files, in Cr 308828, the State of Ohio moves to amend this case as to Alvin Williams by moving to nolle count two, count three and count four. We also move to amend count one by moving to delete the furthermore and violence specification for Alvin Williams. THE COURT: It's (sic) a violence specification only? MS. NAIMAN: One violence specification and one furthermore for prior drug trafficking. We will move to nolle both of those. THE COURT: All right. MS. NAIMAN: As amended, count one would read as an alleged violation of ORC 2925.03, possession of cocaine exceeding three times the bulk amount. As amended, it's a second degree felony, non-probationable, punishable by a possible term of incarceration of two, three, four, five to 15 years, but carries with it an actual term of incarceration of three years. Additionally, there is a mandatory fine of -- excuse me -- a discretionary fine of $7,500, as well as a mandatory fine of $5,000. Also as a part of this plea arrangement, your Honor, we understand the defendant will voluntarily forfeit any and all interest in any items confiscated. * * * MS. NAIMAN: In CR 310013, your Honor, we have a one-count indictment here alleging 5 possession under bulk of PCP, with a furthermore and violence specification. And with the understanding that there will be a change in defendant's pleas forthcoming in the other, we move to nolle CR 310013, again with the understanding the defendant will voluntarily forfeit any and all interest in all items confiscated in that case. Your Honor, Cr 315568 is an information. The information alleges a violation of one code section, that is, O.R.C. 2923.13, having a weapon while under a disability. It also states on it a violence specification for a September 13th, 1984 conviction in Cr 190499 of this defendant, Alvin Williams, who was on that date represented by counsel. The violation being and the conviction being for the crime of burglary, in violation of O.R.C. 2911.12. The firearm specification is that the Grand Jurors further find and specify that the offender did have a firearm on or about his person or under his control while committing the offense charged in this count of the indictment. Your Honor, this indictment -- this information, your Honor, as it stands, is a fourth degree indefinite felony. It carries with it a possible term of incarceration of one and a half, two, two and a half, three to five years and a possible fine of up to but not exceeding $2,500. Because of the firearm specification, your Honor, it's non-probationable. The firearm specification carries with it a mandatory term of three years, which is to be served consecutive to the underlying term of incarcerationfor the fourth degree felony, as well as consecutive to any other sentence you would impose today on this defendant in this file or any other file that he is pleading to. With that understanding, your Honor, there's an agreement between the parties that 6 there be a concurrent sentence, if that is acceptable to this Judge, for the information and the plea in CR 308828. (T. 6-10.) The trial court then proceeded to explain the constitutional rights defendant-appellant would be waiving by entering a plea of guilty to the amended charges. After determining that defendant- appellant was not under the influence of any medication or drugs, the trial court explained the right to a trial by judge or jury, the right to be represented by counsel, the right to confront and cross-examine all witnesses against him, the right to subpoena witnesses in his own behalf, the right to testify in his own behalf or choose not to testify and that the state was prohibited from commenting upon the fact that he did not testify if that was his choice. The trial court also explained the state's burden of proof should the case against defendant-appellant proceed to trial. (T. 18-19.) Defendant-appellant acknowledged that he understood his constitutional rights as set forth by the trial court and that he was entering a plea of guilty to the amended charges voluntarily and of his own free will. (T. 19, 27.) Defendant-appellant then entered a plea of guilty to one count of drug trafficking in violation of R.C. 2925.03, as amended by the state in Case No. CR-308828. In addition, defendant-appellant entered a plea of guilty to having a weapon while under disability in violation of R.C. 2923.13 along with the attendant firearm 7 specification. All remaining charges against defendant-appellant were nolled by the state as previously agreed between the parties. Immediately following the plea hearing, the trial court sentenced defendant-appellant to the agreed sentence of 3 to 15 years incarceration with a mandatory 3 years without probation in Case No. CR-308828. In Case No. 315568, the trial court sentenced defendant-appellant to 2 to 5 years incarceration along with a mandatory three year term for the firearm specification. These sentences were to be served consecutively with each other and concurrent with the sentence in Case No. CR-308828. Defendant- appellant was given credit for time served. On June 20, 1995, defendant-appellant filed a motion to withdraw his guilty plea. The trial court denied defendant- appellant's motion to withdraw his guilty plea on February 13, 1996. On April 18, 1996, defendant-appellant filed an application for issuance of a writ of mandamus. On July 22, 1996, the trial court entered summary judgment in favor of the state and dismissed defendant-appellant's mandamus action. On July 22, 1996, defendant-appellant filed a motion for delayed appeal, assignment of counsel and for a transcript of proceedings at state expense. This court granted defendant- appellant's motions on August 19, 1996. The instant appeal now follows. II. FIRST ASSIGNMENT OF ERROR 8 Alvin Williams', defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRORS (SIC) IN ACCEPTING A GUILTY PLEA WHEN A PLEA IS MADE INVOLUNTARILY AND WITHOUT FULL KNOWLEDGE. . THE ISSUE RAISED; CRIM.R. 11 COMPLIANCE. Defendant-appellant argues, through his first assignment of error, that the trial court failed to comply with the mandates of Crim.R. 11(C) in accepting his plea of guilty to the amended offenses. Specifically, defendant-appellant argues that the trial court failed to conduct an examination as to the factual basis of the charges as is required when a defendant enters an Alford plea. Defendant-appellant argues further that the trial court failed to properly inform him of the maximum penalty involved for case No. CR-308828. Defendant-appellant's first assignment of error is not well taken. . STANDARD OF REVIEW FOR ALFORD PLEA. In North Carolina v. Alford (1971), 400 U.S. 25, 38, the United States Supreme Court found that a plea of guilty linked with a claim of innocence regarding the underlying offense may be accepted by the trial court provided the defendant intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. Applying Alford, this court has determined that it is reversible error to accept a guilty plea coupled with a claim of innocence when the record is devoid of a basic factual framework against which the trial court could weigh 9 the appellant's claims of innocence against her willingness to waive trial. State v. Habart (Oct. 19, 1995), Cuyahoga App. No. 68545, unreported citing to State v. Casale (1986), 34 Ohio App.3d 339, 340. State v. Cown (Oct. 31, 1996), Cuyahoga App. No. 69683, unreported. In State v. Piacella (1971), 27 Ohio St.2d 92, the Ohio Supreme Court recognized that a plea of guilty may be accepted when entered along with a claim of innocence. This conclusion comports with the holding in Alford that a defendant may intelligently conclude that his interests would be better served by a guilty plea in spite of his proclaimed innocence. State v. Holder (1994), 97 Ohio App.3d 486; State v. Najeeullah (Oct. 3, 1996), Cuyahoga App. No. 70126, unreported. The Piacella court stated: Where the record affirmatively discloses that: (1) defendant's guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and (5) defendant was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty pleas has been voluntarily and intelligently made. Id. at syllabus. . STANDARD OF REVIEW FOR CRIM.R. 11. 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 10 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. 11 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. 12 . THE TRIAL COURT DID NOT ERR IN ACCEPTING DEFENDANT-APPELLANT'S PLEA OF GUILTY. In this case, a review of the record from the trial court demonstrates that the trial court complied with the mandates of Crim.R. 11 enabling defendant-appellant to enter a knowing, intelligent and voluntary plea of guilty to the amended charges. Initially, defendant-appellant maintains that his guilty plea in Case No. CR-315568 to the offense of having a weapon while under disability was, in fact, an Alford plea. A review of the plea hearing transcript fails to support defendant-appellant's assertion. The relevant portion of the transcript provides: How do you plead to that, guilty or not guilty? THE DEFENDANT: Guilty. MR. YOUNG: By way of clarification, based on the conversation that Mr. Williams and I had in the lockup, he just wanted to say, even though he's pleading guilty, that it's an Alford plea, your Honor, from the standpoint that -- that he was driving the vehicle, and under the theory of constructive possession, I told him that the prosecution could make that case, and for that reason he's pleading guilty. However, he understands he's receiving a benefit, your Honor, that the -- the entire sentence for the case in chief is not running consecutive to the other drug cases. So he's receiving a benefit. (T. 25, 26.) Clearly, at no time did defendant-appellant or his counsel profess to be innocent to any of the charges contained in the indictment. The mere fact that defense counsel attempted to characterize the underlying plea as an Alford plea does not, 13 without additional explanation, transform the plea into an Alford plea. In fact, defense counsel's statement, *** under the theory of constructive possession, I told him that the prosecution could make that case, and for that reason he's pleading guilty. indicates actual guilt under the facts of the case, not the required protestation of innocence as defendant-appellant contends. Najeeullah, supra. Even if one were to assume that defendant- appellant's plea constituted an Alford plea, the record demonstrates that the plea was voluntarily and intelligently entered in accordance with Piacella, supra. Defendant-appellant argues further that his guilty plea in Case No. CR-308828 was defective since the trial court did not inform him of the maximum sentence involved. A review of the record fails to support defendant-appellant's argument. The relevant portion of the plea hearing transcript states: THE COURT: All right. So you are pleading guilty to, in Case 308828, count one as amended. By the amendment the State was so good or so fair to do for you, the crime that you are going to be pleading to is drug trafficking, a felony of the second degree, subject to incarceration of three, four, five, six, seven, eight -- MS. NAIMAN: Your Honor, it's a non- aggravated felony, and so the possible term of incarcerationis two, three, four, five to 15, but it's possession over three times bulk cocaine, so it carries a mandatory term of incarcerationf three years non-probationable, and a $5,000 mandatory fine, possible discretionary fine of $7,500. THE COURT: All right. Thank you. 14 So, once again, it is a felony two, and there is a mandatory actual three years non- probationable in this case. Do you understand? It's non-probationable. It's a non- probationable offense. There's a mandatory actual three years. (T. 19-20.) At a subsequent point during the plea hearing, defense counsel and defendant-appellant reiterated their understanding of the maximum sentence: MR. YOUNG: For the record, Judge, we can say that Mr. Williams definitely understands that, because that's what took him so long to decide to enter the plea. THE COURT: All right. MR. YOUNG: He wants to know, the bottom line for the sentence, Judge, so to speak, is still three on the gun spec, plus three to 15, and the two to five is running concurrent with the three to 15? THE COURT: Right. THE DEFENDANT: I understand. THE COURT: Now you understand all of that? THE DEFENDANT: Yes, sir. THE COURT: All right. Are these pleas made voluntarily and freely and of your own free will? THE DEFENDANT: Yes, sir. THE COURT: All right. We will accept it. The Court will find these two pleas have been made knowingly, voluntarily and intelligently and with counsel, and the Court accepts them. 15 (T. 27, 28.) Clearly, the trial court did inform defendant-appellant of the maximum sentence involved as did the state and defense counsel. Defendant-appellant himself acknowledged that he fully understood the agreed sentence that was to be imposed. Accordingly, this court finds that defendant-appellant's plea of guilty was a knowing, voluntary and intelligent plea in accordance with the mandates set forth in Crim.R. 11. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Alvin Williams', defendant-appellant's, second assignment of error states: APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT. A. THE ISSUE RAISED: EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues, through his second assignment of error, that he did not receive effective assistance of counsel during the plea negotiations and hearing. Specifically, defendant- appellant maintains that his retained counsel was not properly prepared, failed to fully investigate the case and was only interested in disposing of the case by way of a plea bargain. Defendant-appellant's second assignment of error is not well taken. 16 B. STANDARD OF REVIEW FOR EFFECTIVE ASSISTANCE OF COUNSEL. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396- 397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** 17 Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. . DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL. In the case sub judice, a review of the record in its entirety fails to disclose that the performance of defendant-appellant's counsel was seriously flawed and deficient resulting in prejudice to defendant-appellant. Contrary to defendant-appellant's position, there is no evidence in the record to demonstrate that defendant-appellant's privately retained attorney was in a rush to dispose of the matter. In fact, retained counsel requested and received a continuance in order to properly familiarize himself with the facts of the case so that he could properly represent defendant-appellant. 18 In addition, the plea agreement in question reduced defendant- appellant's potential sentence significantly providing defendant- appellant with a tangible benefit under the circumstances. State v. Williams (May 23, 1996), Cuyahoga App. Nos. 69403, 69404, 69405, 69406, unreported. Accordingly, defendant-appellant has failed to overcome the presumption of competence of licensed defense counsel and demonstrate that counsel was deficient in negotiating and allowing defendant-appellant to enter a knowing and voluntary guilty plea in accordance with the plea agreement. Defendant-appellant's second assignment of error is not well taken. 19 IV. DEFENDANT-APPELLANT'S FIRST AND SECOND PRO SE ASSIGNMENTS OF ERROR Alvin Williams', defendant-appellant's, pro se appellate brief raises three additional errors for this court's review. The first pro se assignment of error states: DEFENDANT-APPELLANT WAS DEPRIVED DUE PROCESS OF LAW, WHERE DEFENDANT WAS DEPRIVED ARRAIGNMENT FOR CARRYING WEAPON WHILE UNDER DISABILITY AND CARRYING CONCEALED WEAPON. JUNE 19, 1995, APPROXIMATELY A HALF YEAR AFTER SENTENCING, DEFENDANT CITING CRM. 32.1 FILE MOTION TO WITHDRAW HIS GUILTY PLEAS TO CORRECT MANIFEST INJUSTICE, SAID DEFENDANT WAS CONVICTED WITHOUT DUE PROCESS OF LAW. The second pro se assignment of error states: DEFENDANT WAS DEPRIVED DUE PROCESS OF LAW, WHERE THIS COURT HAS HELD THAT AN EVIDENTIARY HEARING IS REQUIRES WHERE A DEFENDANT ALLEGES FACTS WHICH IF PROVEN WOULD RESULT IN MANIFEST INJUSTICE, AND THAT; AT A MINIMUM, DUE PROCESS OF LAW REQUIRES NOTICE AND OPPORTUNITY TO BE HEARD. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second pro se assignments of error simultaneously. . THE ISSUE RAISED: MOTION TO WITHDRAW OF GUILTY PLEA. Defendant-appellant argues, through his first and second pro seassignments of error, that the trial court erred in denying his Crim.R. 32.1 motion to withdraw his previously entered plea of guilty. Defendant-appellant maintains that his plea of guilty to the offense of having a weapon while under disability was improper since he was never arraigned upon the underlying charge. Defendant-appellant argues further that, at a minimum, the trial 20 court should have held on evidentiary hearing on the motion to withdraw guilty plea. Defendant-appellant's first and second pro se assignments of error are not well taken. . STANDARD OF REVIEW FOR WITHDRAWAL OF A GUILTY PLEA. In State v. Howard (Feb. 27, 1997), Case No. 68399, unreported, this court set forth the following standard to be applied to a motion to withdraw a guilty plea: Generally, a hearing on a post-sentence motion to withdraw a plea is only required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn. State v. Nathan (1995), 99 Ohio App.3d 722, 725; State v. Hamed (1989), 63 Ohio App.3d 5, 7; State v. Legree (1988), 61 Ohio App.3d 568, 574; State v. Blatnik (1984), 17 Ohio App.3d 201, 204. Crim.R. 32.1 permits a post-sentence motion to withdraw a guilty plea only to correct a manifest injustice. State v. Xie (1992), 62 Ohio St.3d 521, 526; State v. Grisby (1992), 80 Ohio App.3d 291, 299. The burden of establishing a manifest injustice is upon the defendant. State v. Legree, supra at 572; State v. Grisby, supra at 299. Id. At 4. . THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA. In the case at bar, there is no showing of a manifest injustice. A review of the plea hearing transcript demonstrates clearly that defendant-appellant, through counsel, submitted a waiver of indictment in Case No. CR-315568. (T. 11-13.) Defendant-appellant waived the reading of the indictment pursuant to Crim.R. 10(A), therefore he cannot now say that he was not provided the opportunity for arraignment as a basis to attack the 21 validity of the underlying plea in Case No. CR-315568. See State v. Hayden (1992), 81 Ohio App.3d 272, 276. Accordingly, defendant-appellant's first and second pro se assignments of error are not well taken. V. DEFENDANT-APPELLANT'S THIRD PRO SE ASSIGNMENT OF ERROR Alvin Williams', defendant-appellant's, third and final pro se assignment of error states: THE DEFENSE ATTORNEY COMMITTED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN UNDER ADVISE OF TRIAL COUNSEL HAD DEFENDANT TO ENTER A PLEA OF GUILTY WITHOUT INVESTIGATING PROSECUTION CASE AND HAVE DEFENDANT PLEA GUILTY WITHOUT DUE PROCESS OF LAW, (WAVING DEFENDANT ARRAIGNMENT). . THE ISSUE RAISED: EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues, through his third and final assignment of error, that he did not receive effective assistance of counsel. Defendant-appellant bases this argument upon two allegations: retained defense counsel failed to fully investigate the state's case and defense counsel should not have waived the arraignment in Case No. CR-315568. This court's previous disposition of defendant-appellant's second assignment of error as well as defendant-appellant's first and second pro se assignments of error render the final assignment of error moot pursuant to App.R. 12(A)(1)(c). Defendant-appellant's third and final pro se assignment of error is not well taken. Judgment of the trial court is affirmed. 22 23 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. BLACKMON, P.J. and PORTER, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .