COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71052 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DONALD STYLES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 9, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-319209 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ, RONALD A. SKINGLE, ESQ. Cuyahoga County Prosecutor 2450 St. Clair Avenue, #2 RICHARD A. BELL, ESQ. Cleveland, Ohio 44114 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Donald Styles, defendant-appellant, appeals from the decision of the trial court convicting him of attempted rape and kidnapping upon his guilty plea and sentencing him accordingly. Styles assigns the following two errors for our review: I. THE TRIAL COURT VIOLATED DEFENDANT, DONALD STYLES' CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY BY CONVICTING HIM OF AND BY ORDERING SEPARATE CONCURRENT SENTENCES FOR ATTEMPTED RAPE AND KIDNAPPING WHEN THESE OFFENSES WERE ALLIED OFFENSES OF SIMILAR IMPORT PURSUANT TO R.C. 2941.25. II. DEFENDANT, DONALD STYLES WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE COUNSEL BY TRIAL COUNSEL'S FAILURE TO OBJECT TO HIS MULTIPLE CONVICTIONS AND SENTENCES FOR ATTEMPTED RAPE AND KIDNAPPING AS BEING ALLIED OFFENSES OF SIMILAR IMPORT. Styles assigns the following three errors pro se: I. THE TRIAL COURT ERRED THE SUBSTANTIAL PREJUDICE OF APPELLANT BY FAILLING (sic) TO SUBSTANTIALLYCOMPLY WITH CRIM.R. 11(C) BY NOT ADVISING HIM THAT THE STATE MUST PROVE HIS GUILT BEYOND REASONABLE DOUBT AND THAT HE HAD A RIGHT TO A TRIAL BY THE JURY AND THAT HE COULD WAIVE A JURY TRIAL, AND HAVE A TRIAL TO THE COURT, BEFORE ACCEPTING HIS GUILTY PLEA. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT HOLDING A HEARING TO DETERMINE IF ATTEMPTED RAPE AND KIDNAPPING WERE ALLIED OFFENSES OF SIMILAR IMPORT, REQUIRING ONLY ONE ENTRY OF CONVICTION BEFORE IT ACCEPTED THE PLEDING (sic) AND SENTENCED ON SAID OFFENSES. III. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO MOTION THE TRIAL COURT TO STIKE(sic) THE SURPLUSAGE OR MULTIPLICTY (sic), OVER LAPPING COUNTS, TO THE INDICTMENT BEFORE PLEADING AND FAILURE OF COUNSEL TO -3- CHALLENGE THE PROPRIETY OF THE CHARGES AGAINST HIS CLIENT BEFORE PLEADING. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Styles was charged on February 9, 1995 in a ten count indictment with rape (five counts), felonious sexual penetration, gross sexual imposition (three counts), and kidnapping. On March 23, 1995, pursuant to a plea agreement, Styles pleaded guilty to attempted rape and kidnapping. The parties negotiated an agreement that Styles would be sentenced to concurrent terms of eight to fifteen years and eight to twenty-five years. The state advised the trial court of the plea agreement and the agreed sentence. The trial court then addressed Styles. Through questioning, the court determined that Styles had an eleventh grade education, that he was not under the influence of any drugs, alcohol or medication that would impair his ability to understand the proceedings, that Styles had a prior felony conviction for grand theft, that he was not on probation or parole, and that he had served approximately seven months in prison for the grand theft conviction. Thereafter, the trial court conducted the following colloquy: COURT: Let me apprise you of your constitutional rights. You've been indicted in this multi-count indictment; however, although you've been charged, you are presumed innocent at this point. You have a right to a trial of this matter. You have a very qualified, a very competent attorney who is capable of -4- trying these cases. You have a right to cross-examine the people who come in here and accuse you. You have a right to call your own witnesses. You have a right to remain silent. No one can comment on your failure to testify, or compel you to do so, nor can they mention your prior criminal record, because it's over ten years old. So you have all these rights, including the right to appeal, if convicted, but I want you to understand, Mr. Styles, that you are waiving all of those rights, you are admitting that you attempted to rape this individual, you're admitting that you kidnapped her, and everybody at the joint is going to know it's a plea bargain, and you're going to be considered a kiddie rapist down there, and you're going to go down for eight to twenty-five years, and I'm not going to shock you or super shock you or give you any early release. Do you understand what I'm saying? You're going to go do your eight to twenty- five, and that's the deal; do you understand that? STYLES: Yeah. COURT: The alternative, of course, is to take it to trial, but if you get convicted of any of the most serious charges, then you go down for life; do you understand that, Mr. Styles? *** STYLES: Yeah. (Tr. 9-11.) Styles denied having any questions or needing any additional information before intelligently entering his guilty plea. Styles stated that the plea was freely, knowledgeably made. He also stated that he had full opportunity to talk to his attorney and was satisfied with his representation. He denied being threatened to -5- take the plea. Other than the agreed sentence, he denied that any other promises were made to get him to take the plea. Thereafter, Styles pleaded guilty to attempted rape and kidnapping. He was given the agreed sentence. This appeal followed. In his first pro se assignment of error, Styles argues the trial court failed to substantially comply with Crim.R. 11(C) when advising him of his rights. Specifically, he argues the trial court failed to advise him that the state had to prove his guilt beyond reasonable doubt, that he had a right to a jury trial, or that he could waive a jury trial and have a bench trial. In State v. Nero (1990), 56 Ohio St.3d 106, 107, the Supreme Court ruled that substantial compliance rather than literal compliance with Crim.R. 11 is required. The relevant inquiry is not whether the trial court followed the statute verbatim, but rather whether the accused subjectively understands the implications of his plea and the rights he is waiving. Id. at 108. In this case, the trial court advised Styles that he had the right to a trial and that he was presumed innocent. Styles was also advised that he had the right to call his own witnesses, that he had the right to cross-examine the witnesses who accused him, that he had the right to remain silent, that no comment could be made on his failure to testify, that he could not be compelled to testify, that his criminal record could not be mentioned because his prior conviction was more than ten years, and that he had the right to an appeal. We conclude that the trial court substantially -6- complied with Crim.R. 11 in advising Styles of his rights. Styles' first pro se assignment of error is overruled. In his first assignment of error and his second pro se assignment of error, Styles argues he was denied his right to constitutional protection against double jeopardy when the trial court convicted and sentenced him for both attempted rape and kidnapping because the crimes were allied offenses of similar import. However, Styles did not raise this issue before the trial court and has, therefore, waived his right to raise it on appeal absent plain error. See State v. Comen (1990), 50 Ohio St.3d 206, 211. Styles argues it is plain error for the trial court to impose concurrent sentences for allied offenses. State v. Fields (1994), 97 Ohio App.3d 337, 347. In Fields, the Hamilton County appellate court recognized that this court and the Hamilton County appellate court reached a different conclusion in State v. Hendrix (June 13, 1991), Cuyahoga App. Nos. 58519, 58520, unreported and State v. Miller(December 5, 1990), Holmes App. No. CA-427, unreported. In Hendrix, we took the position that no prejudice occurred because the sentences were concurrent. The Fields court, however, concluded that the prejudice occurs in the result, i.e., the defendant ends up with two crimes on his record. Although we appreciate the reasoning of Fields, we are mindful that Hen drix is an opinion from this court and, therefore, we follow its dictates. Besides, Fields is different from this case. In Fields, the defendants were found guilty by a jury and then -7- sentenced, which is different from Hendrix and this case where both the defendants pleaded guilty under bargained-for plea agreements, which were bargained for to their advantages. Specifically, in this case, Styles was facing life in prison, if convicted. He was allowed to plead to two charges, for which he was sentenced to concurrent sentences of eight to fifteen years and eight to twenty- five years. For his cooperation, and his voluntary and knowing plea, he received a substantial benefit. The query for us is should he be allowed to circumvent that agreement. We think not. An agreement that is knowingly and voluntarily entered into by the defendant is sufficient to withstand any later attack even when the attack involves a plea to allied offenses. See State v. Butts (1996), 112 Ohio App.3d 683 (where the accused entered into a post- trial agreement to delete aggravated felony specification, which significantlyreduced his sentence in exchange for a waiver of his right to appeal). We recognize that kidnapping and rape are allied offenses when the restraint or movement of the victim is merely incidental to the rape. See State v. Logan (1979), 60 Ohio St.2d 126, 135. Styles argues his act of transporting the victim was not for the purpose of facilitating a rape and did not constitute kidnapping. He also argues that any restraint of the victim after his decision to commit rape was merely incidental and lacked the separate animus necessary to support a separate conviction for kidnapping. Furthermore, he argues where allied offenses are involved, the trial court is required to inquire before sentencing in order to -8- avoid double jeopardy. See State v. Kent (1980), 68 Ohio App.2d 151, (where this court held if a trial court accepts a guilty plea to multiple offenses, the court should, before sentencing, advise the defendant of the possibility of allied offenses and afford him an opportunity to present evidence on which the court could determine whether there were allied offenses of similar import.) However, where the defendant pleads to the charge and bargains for a lesser sentence than life in prison, we believe that the trial court does not err by failing to inquire about possible allied offenses. Besides, in Kent, the defendant received consecutive sentences for kidnapping and rape. The Kent court concluded that prejudicial error was committed because the offenses could have been allied offenses. In this case, Styles received concurrent sentences, which we held in Hendrix does not prejudice the defendant. Moreover, Styles bargained for the sentence he received in exchange for nolling of the forcible rape counts that would have subjected him to life imprisonment. In its brief before this court, the state asserted it would never have offered the plea bargain without the agreed sentence. In light of the potential sentence under the original indictment, and Styles' agreement to the plea bargain and agreed sentence, we are unable to conclude that Styles was prejudiced in this case. Accordingly, we cannot find that the sentence constituted plain error. See State v. Owens (1993), 91 Ohio App.3d 479. (Reversal of a conviction is not required where the error is not prejudicial.) Accordingly, we overrule Styles' -9- first assignment of error and his second pro se assignment of error. In his second assignment of error and his third pro se assignment of error, Styles argues he was denied his constitutional right to the effective assistance of counsel. He argues trial counsel was ineffective in failing to raise the issue of allied offenses and by failing to move the court to strike the surplus counts in the indictment or challenge the propriety of the charges before the plea was entered. In order to make a claim for ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. Styles cites State v. Smith (December 10, 1992), Cuyahoga App. No. 61464, unreported, for the proposition that the failure of defense counsel to raise the issue of allied offenses of similar import during plea proceedings and sentencing constituted ineffective assistance of counsel. However, the Smith case involved an attempt to use a fictitious birth certificate and social security card to apply for an Ohio Bureau of Motor Vehicles Identification Card. We noted that, under the circumstances, the offenses of forgery and uttering were allied offenses and the issue should have been raised by trial counsel. Id. See State v. Bounds (1995), 107 Ohio App.3d 700, 705 (forgery and uttering are allied offenses where the offender forges the document and either -10- simultaneously transfers the same document or merely possesses the same document with purpose to utter it.) The facts of the Smith case, as set forth in the indictment, clearly indicated the possibility of allied offenses. In this case, although kidnapping and rape may be allied offenses where the kidnapping charge is based on restraint that is merely incidental to the rape, the indictment indicates Styles transported the victim in his car before the assault. Styles admits transporting the victim, but we have only Styles' unsubstantiated assertions in his appellate brief that his transportation of the victim was not done for the purpose of engaging in sexual activity. He maintains that he took the victim with him when he went to repair a car but it is equally likely that he deceived the victim into going with him in order to get her alone so he could assault her. In asserting his ineffective assistance of counsel claim, Styles must overcome the presumption that a licensed attorney is competent and that his decisions constitute sound trial strategy. Stricklandat 689. In this case, Styles was faced with five counts of forcible rape of a child under the age of thirteen, a crime which is punishable by life imprisonment. See R.C. 2907.02(A)(1)(b) and R.C. 2907.02(B). Styles' trial counsel successfully negotiated the dismissal of eight counts of the ten count indictment and the amendment of the remaining rape count to attempted rape, thereby avoiding a possible life sentence. Under the circumstances, trial counsel's decisions can be attributed to -11- sound strategy. Accordingly, we overrule Styles' second assignment of error and his third pro se assignment of error. Judgment affirmed. 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. DAVID T. MATIA, J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON 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 .