COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71075 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION TIM LEWIS : : Defendant-appellant : : : September 4, 1997 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-327143 : JUDGMENT : AFFIRMED; REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES, ESQ. CHARLES H. BRAGG, ESQ. Cuyahoga County Prosecutor The Courtyard Office Park ARTHUR A. ELKINS, ESQ. 7055 Engle Road, #1-103 Assistant County Prosecutor Middleburg Heights, OH 44130 The Justice Center-8th Floor 1200 Ontario Street Cleveland, OH 44113 PATTON, P.J. Defendant Tim Lewis pleaded guilty to one count of attempted felonious assault, a third degree aggravated felony in violation of 2 R.C. 2903.11, with a violence specification. The offense carried with it an indefinite term of incarceration. Inexplicably, the trial court sentenced defendant to a definite term of incarcera- tion. Upon learning of this error, the trial court resentenced defendant to an indefinite term. Defendant now complains that the trial court erred by (1) accepting his guilty plea without advising him of his constitutional rights, (2) subsequently resentencing him upon learning that it imposed a statutorily incorrect sentence, and (3) resentencing him without the presence of counsel. In supple- mental pro se assignments of error, defendant raises issues concerning the effectiveness of counsel. I The first assignment of error raises several issues under Crim.R. 11 that challenge the guilty plea. Crim.R. 11(C)(2) requires the trial judge to inform a defendant of the constitutional rights that he waives by entering his guilty plea. State v. Nero (1990), 56 Ohio St.3d 106, 107. We review the court's actions to determine whether it substantially complied with Crim.R. 11(C) by looking at the totality of the circumstances to determine that no prejudice has resulted to the defendant. See State v. Flint (1986), 36 Ohio App.3d 4. A First, defendant complains the trial court failed to advise him of his constitutional right to counsel throughout the pro- ceedings, including trial and sentencing if necessary. The record contradicts this complaint by showing that the trial judge 3 informed defendant that, [y]ou're entitled to be represented by an attorney. If you cannot afford one the Court will appoint one for you, at no cost to you. Is that clear? This language unmistakably conveyed the right to counsel and under any circum- stance would constitute substantial compliance with the rules. B Second, defendant argues that the trial court did not make a determination as to whether he entered his plea with an understand- ing of the attempted felonious assault charge. Again, the record contradicts defendant's assertions by showing the trial court told defendant: First of all, if you plead guilty to the amended count one, you're pleading guilty to an aggravated felony of the third degree, to which I can immediately sentence you to a minimum of two, three, four, five years to a maximum of ten years, and fine you up to $5,000 and court costs. Is that clear? This statement fully informed defendant of the charge, the degree of the offense and possible punishment. We find full compliance with Crim.R. 11(C)(2)(a). C Third, defendant makes the vague allegation that the trial judge failed to determine whether he understood the effect of his plea. Without a specific example of how defendant did not understand the effect of his plea, we are left to examine the record to see if the trial judge substantially complied with Crim.R. 11(C)(2). Our review convinces us the trial court fully informed defendant of the rights he would waive if he entered a 4 guilty plea, outlined the minimum and maximum sentences and told him that it could proceed immediately with judgment and sentence. Moreover, the record convincingly shows that defendant understood the effect of his plea. The trial judge told defendant, [i]f you plead guilty you give up all the rights and protections I just outlined for you, plus you give up any right of appeal you might otherwise attain as a result of a prejudicial mistake being made during the course of your trial, because when you plead guilty you waive that trial. Is that clear? Defendant's affirmative response to this question fully demonstrates that he understood the effect of his plea. 5 D Finally, defendant claims the trial judge did not explain the minimum amount of time defendant would have to serve in prison. This claim is disproved by the above-quoted portion of the transcript where the trial judge told defendant that his sentence could be a minimum of two, three, four, five years to a maximum of ten years ***. The first assignment of error is overruled. II The second assignment of error is that the trial court violated defendant's right not to be placed twice in jeopardy for the same offense when it resentenced him after learning that it had imposed an incorrect sentence. Jeopardy does not attach to a void sentence; therefore, correction of an incorrect sentence does not constitute double jeopardy. See State v. Beasley (1984), 14 Ohio St.3d 74, 76; Brook Park v. Necak (1986), 30 Ohio App.3d 118, 119-120. The trial court improperly sentenced defendant to a definite term of incarceration when it should have imposed an indefinite term; therefore, it was a legally incorrect sentence to which jeopardy did not attach after resentencing. See State v. McColloch (1991), 78 Ohio App.3d 42, 46. The second assignment of error is overruled. III 6 The third assignment of error and defendant's fifth supplemen- tal assignment of error complain that the trial court violated defendant's right to counsel when it resentenced him without the benefit of counsel. The state agrees that counsel should have been provided and urges that we remand for resentencing. Accordingly, we sustain the third assignment of error. See State v. Bush (1994), 97 Ohio App.3d 20, 26. IV In his fourth supplemental assignment of error, defendant maintains he was denied the effective assistance of counsel. A Counsel's performance will not be deemed deficient unless it is proven to have fallen below an objective standard of reasonable representation and prejudice arises from that performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph one of the syllabus. Moreover, a defendant claiming ineffective assistance of counsel during a plea hearing must show that there exists a reasonable probability that, but for counsel's errors, he would not have pleaded guilty. See State v. Xie (1992), 62 Ohio St.3d 521, 524. Our review of the record fails to indicate any instance where counsel performed deficiently. 7 B First, defendant argues that counsel permitted him to plead to a charge that included the element of knowingly, despite stating at sentencing that defendant had been behaving erratically at the time of the offense and could not recall anything that happened. At sentencing, defense counsel told the court that a psychosis affected or influenced defendant's thinking, but limited that statement by saying: I don't think it was to the extent that it was a defense, but I am firmly convinced that it had something to do with his reactions, and if the Court as the Court has read in the presentence report, sentence, and also in the psychiatric report, his behavior was erratic and it was out of control. (Emphasis added). As this statement indicates, counsel did not suggest to the court that defendant's mental condition prevented him from forming the requisite culpable mental state. In fact, the court had earlier conducted a competency hearing and found defendant mentally fit to stand trial, so counsel did, in fact, attempt to raise the issue of defendant's ability to form the requisite intent to commit felonious assault. Defense counsel simply brought up defendant's mental state as a factor justifying mitigation of sentence, a tactic that we find reasonable under the circumstances. 8 C Defendant next argues that counsel should not have permitted him to plead guilty when the trial court failed to separate the attempted felonious assault from the violence specification contained in the indictment, instead permitting defendant to plead to the violence specification as an essential element of attempted felonious assault. The state correctly notes that this assignment of error may be overruled on one of two grounds. First, the violence specification is not an element of the attempted felonious assault charge because it did not affect the degree of the offense. See State v. Allen (1987), 29 Ohio St.3d 53, syllabus. Second, the record shows the trial judge did not ask defendant to plead to the violence specification as an element of the charged offense. The violence specification contained in the indictment charged that during the commission of the felonious assault defendant made an actual threat of physical harm to Richard Gajdos [the victim] with a deadly weapon. During the plea colloquy, the trial judge stated: Then I ask you, how do you plead to the amended count one, that on or about June 28th of 1995, in Cuyahoga County, Ohio, you did knowingly, and unlawfully attempt to cause or attempt to cause or in attempting to cause physical harm to Richard Gajdos, by means of a deadly weapon or ordnance, to wit, a knife, as defined in section 2923.11, of the Revised Code, and that during the commission of the offense you made actual threats of physical harm to Mr. Gajdos with a deadly weapon, guilty or not guilty? The trial judge clearly asked defendant to plead to the violence specification and did not incorporate that specification 9 as an element of the charged offense. Under the circumstances, counsel did not perform deficiently because any objection by defense counsel would have been futile. D Finally, defendant complains that counsel permitted him to plead guilty to the charged offense without first requiring the state to prove a factual basis for the charge. He argues that the state failed to show that he used a knife to actually threaten the victim. This argument is decisively contradicted by the record. Before asking defendant to state his plea, the trial judge asked the state to outline the factual basis for the charge. The state told the trial judge that, *** the defendant pulled the knife out, and attempted to lunge at Mr. Gajdos any where from fifteen to twenty times ***. R.C. 2901.01(3) defines physical harm to persons as any injury *** regardless of its gravity or duration. In this case, defendant's attempt to stab the victim fifteen times constituted an ample manifestation of intent to cause injury sufficient to constitute a threat as that word is used in the indictment. Any attempt by counsel to argue otherwise would have been unavailing. The fourth supplemental assignment of error is overruled. Judgment affirmed; remanded for resentencing. 10 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. SPELLACY, J. HOLMES, J.,* CONCUR. PRESIDING JUDGE JOHN T. PATTON (*SITTING BY ASSIGNMENT: Robert E. Holmes, Retired Justice of the Ohio Supreme Court). 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 reconsidera-tion 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 .