COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71036 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION MILDON BALL : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 17, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-319117. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Lisa Reitz Williamson, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Stephen L. Miles, Esq. 20800 Center Ridge Road Suite 217 Rocky River, OH 44116 DAVID T. MATIA, P.J. Mildon Ball, defendant-appellant, appeals from his conviction after pleading no contest to the offense of drug abuse in violation -2- of R.C. 2925.11; possession of cocaine less than bulk amount. Appellant raises four assignments of error for review. For the following reasons, we affirm appellant's conviction. I. STATEMENT OF FACTS Mildon Ball, appellant, was indicted by the Cuyahoga County Grand Jury on February 6, 1994, on one count of drug abuse in violation of R.C. 2925.11, with a violence specification. A hearing was held on May 31, 1995 where appellant pled no contest to the indictment, a felony of the fourth degree. Prior to addressing appellant in regards to his trial rights, the court was informed that appellant was on parole. The trial court informed appellant that the adult parole authorities had the ability/authority to send appellant back to prison as a result of this conviction. Appellant acknowledged that he understood. Thereafter the trial court addressed appellant of his rights and appellant pled no contest to the charge. The trial court then found appellant guilty of drug abuse as charged and continued the matter for a pre-sentence report. On June 27, 1995, the trial court sentenced appellant to one and one-half to five years incarceration. On August 21, 1995, appellant filed for shock probation. This motion was denied. Appellant also filed a Motion for Delayed Appeal which this court granted on September 3, 1996. However, this appeal was subsequently dismissed for failure to file a record. After counsel was appointed, the appeal was reinstated. In this appeal, there exists procedural irregularities with the filing of appellant's -3- counsel's brief, appellant's subsequent pro se brief, and appellant's pro se brief in response. However, it is clear the state has addressed both briefs submitted by appellant. For this reason, we proceed with appellant's appeal. II. FIRST ASSIGNMENT OF ERROR Mildon Ball's, appellant's, first assignment of error states: I. THE TRIAL COURT ERRED IN ACCEPTING THE APP ELLANT'S GUILTY PLEA WITHOUT INFORMING THE APPELLANT THAT ANY POTENTIAL SENTENCE FOR THE CRIME HE WAS PLEADING NO CONTEST TO WOULD HAVE TO BE SERVED CONSECUTIVE TO THE SENTENCE HE WAS ON PAROLE FOR. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN ACCEPTING APPELLANT'S GUILTY PLEA. Appellant argues the trial court failed to substantially comply with Crim.R. 11. Specifically, appellant argues the trial court was aware that appellant was on parole. However, the trial court failed to inform appellant of the potential effect of his plea of no contest in that any sentence served by appellant in the present case would be served consecutively to the sentence he was on parole for. Therefore, appellant argues, he was not informed of the potential maximum time that he would have to serve in prison making it impossible for him to knowingly, intelligently and voluntarily enter into the plea. Defendant's first assignment of error is not well taken. B. STANDARD OF REVIEW: PLEA OF NO CONTEST AND CRIM.R. 11. Although a plea of no contest does not admit a defendant's guilt, Crim.R. 11(C) requires that the same procedure be followed by the trial court in accepting pleas of guilty and no contest in -4- felony cases. State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422. Crim.R. 11(C) provides in pertinent part: (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 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 the 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 or no contest. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty or no contest. 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 or guilty or no contest. -5- 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, 92. While, literal compliance with Crim.R. 11 is the preferred practice, 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 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; CrimR. 52(A). The test is whether the plea would have been otherwise been made. Id. At 108. C. THE TRIAL COURT SUBSTANTIALLY COMPLIED WITH THE REQUIREMENTS OF CRIM.R. 11. When the trial court addressed the appellant the following dialogue took place: THE COURT: Are you on parole or probation? DEFENDANT: Parole. THE COURT: You're on parole? -6- DEFENDANT: Yes, sir. DEFENSE COUNSEL: Your Honor, there is a question there. I attempted to contact Miss Scott about that. He was allegedly supposed to be off on August of `94. So, there is some confusion about that. THE COURT: Is there a parole hold on him? DEFENDANT: Yes, sir. THE COURT: There is? DEFENDANT: Yes, sir. THE COURT: Do you understand what that means, sir? DEFENDANT: Yes, sir. THE COURT: If the parole authorities, the adult parole authorities determine that you should go back to prison as a result of this conviction, they are going to take that action. DEFENDANT: I understand that. The trial court subsequently informed appellant of the maximum potential sentence and the maximum discretionary/mandatory fines for one count of drug abuse in violation of R.C. 2925.11. Appellant, argues, however that the trial court's failure to inform him of the potential prison time that could be served consecutively to his current sentence due to his parole violation violates the mandate of Crim.R. 11 (C)(2)(b) regarding the defendant's knowledge of the maximum sentence. This court has previously held that maximum penalty refers to the charge to which the defendant is pleading guilty or no contest. See State v. Flint (1986), 36 Ohio App.3d 4; State v. Johnson (1988), 40 Ohio St.3d 130. Moreover, there is no mention in -7- Crim.R. 11(C) about consecutive and/or concurrent sentencing. Flint, supra at 9-10. Thus, under Crim.R. 11(C), a trial court is not required to inform a defendant who is currently on parole of both the maximum sentence for the charge to which he is pleading guilty and/or no contest and a potential sentence for a parole violation which could run consecutively to his current sentence. After a review of the record, we find the trial court substantially complied with the requirements of Crim.R. 11. See, also, State v. Waddell (1985), 26 Ohio App.3d 33; State v. Nunn (September 21, 1995), Cuyahoga App. No. 67755, unreported; State v. Gruly (October 10, 1991), Cuyahoga App. No. 58978, unreported. Defendant-appellant's first assignment of error is not well taken. III. PRO SE ASSIGNMENTS OF ERROR While the precise language of Mildon Ball's, appellant's, pro seerrors is unclear, we find the underlying claims are properly set forth in the state's interpretation and are adopted as follows: I. APPELLANT IS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE ONE, SECTION 10, WHERE COUNSEL FAILS TO RAISE AN AFFIRMATIVE DEFENSE AND ADVISED DEFENDANT TO PLEAD NO CONTEST TO DRUG ABUSE, WHERE UNDER THE FACTS, CIRCUMSTANCES AND LAW OF THE MATTER SUBJUDICE (SIC) THE STATE'S NON-COMPLIANCE OF ITS STATUTORY OBLIGATION UNDER O.R.C. 2925.51(A) THOUGH (SIC) (E) LEFT DEFENSE COUNSEL THE MANDATORY DUTY TO REQUEST DISMISSAL OF THE INDICTMENT. II. THE TRIAL COURT ERRS IN ACCEPTING A NO CONTEST PLEA AND FINDING APPELLANT GUILTY THEREUPON WHILE IGNORING DEFENDANT'S TIMELY MOTION FOR THE FULL PROTECTION OF HIS RIGHTS UNDER R.C. 2925.51(A) THROUGH (E). -8- III. THE DEFENDANT ENTERED HIS PLEA INVOLUNTARILY, UNKNOWINGLY, UNINTELLIGENTLY, AND WITHOUT KNOWLEDGE OF ALL THE LIKELY CONSEQUENCES OF HIS PLEA, WHERE UNDER THE CIRCUMSTANCES, FACTS, AND LAW AN AFFIRMATIVE DEFENSE WAS CREATED AND AVAILABLE. Initially we note that appellant has failed to demonstrate and/or establish how R.C. 2925.51 provides an affirmative defense and mandate his defense counsel to request a dismissal. Appellant merely argues that he filed a motion and/or written request pursuant to R.C. 2925.51. However, said motion was still pending when defendant voluntarily entered into a plea agreement. The effect of the no contest plea is to admit the truth of all the factual allegations in the indictment and to relieve the prosecutor of the burden of proving the defendant guilty beyond a reasonable doubt. Crim.R. 11(B); State v. Stow Veterans Ass'n. (1987), 35 Ohio App.3d 45. Accordingly, appellant's no contest plea admitted the facts alleged in the indictment and rendered moot any objection he might have had to the sufficiency of the laboratory report. See, State v. Moses (August 13, 1991), Montgomery App. No. 12293, unreported; State v. Harvey (August 19, 1993), Cuyahoga App. No. 63436, unreported. Regarding appellant's claims of ineffective assistance of counsel, the Ohio State Supreme Court set forth the following test in State v. Bradley (1989), 42 Ohio St.3d 136, 141-142: 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 defense counsel's essential duties to his client. Next, and analytically separate from the -9- 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. As noted above, the appellant has failed to demonstrate that counse l failed in a duty owed to appellant pursuant to R.C. 2925.51. Moreover, the record reflects counsel was well prepared and knowledgeable about appellant's case. Finally, there is nothing in the record demonstrating appellant was coerced into making his plea. See State v. O'Brien (1987), 30 Ohio St.3d 122. In fact, throughout the hearing, appellant had stated on a number of occasions that he understood his rights and the effect of his plea and that he was pleased with his counsel's performance. Recognizing the presumption that a properly licensed attorney executes his duty in an ethical and competent manner, State v. Smith (1985), 17 Ohio St.3d 98, we find appellant has failed to meet his burden in demonstrating the ineffectiveness of his counsel. For these reasons, appellant's first, second and third pro se assignments of error are not well taken. Judgment affirmed. -10- It is ordered that appellee recover of appellant 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. PATTON, J. and HOLMES, J., CONCUR. (Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court, sitting by assignment.) DAVID T. MATIA PRESIDING 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 jour nalization of this court's announcement of decision by the .