COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71151, 71152, 71153, 71154 STATE OF OHIO : : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION ALVIN WILLIAMS : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 23, 1997 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case Nos. CR-278583, CR-278582, CR-279208, & CR-271446, respectively. 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 Defender LISA R. WILLIAMSON, ESQ. DONALD GREEN, ESQ. Assistant County Prosecutor Assistant Public Defender The Justice Center 1200 West Third Street N.W. 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 2 KARPINSKI, J.: In these consolidated cases, heard four years ago, defendant seeks to vacate his guilty plea because the trial court did not substantially comply with Crim.R. 11(C)(2)(a). Specifically, defendant contends that the trial court erred by (1) not informing him that two of the offenses to which he pled guilty were non- probationable and (2) sentencing defendant to two separate terms of actual incarceration for two firearm specifications. For the reasons that follow, we find defendant's arguments to lack merit and affirm the judgment of the trial court. Defendant was indicted in four different cases. In Case No. CR-271446, the grand jury charged defendant as follows: one count of drug trafficking, one count of carrying a concealed weapon, one count of possession of criminal tools, and one count of having a weapon while under a disability. In Case No. CR-278582, the grand jury charged defendant with one count of felonious assault and one count of having a weapon while under a disability. Each count carried firearm and violence specifications. In Case No. CR-278583, the grand jury charged defendant with four counts of felonious assault. Each count contained firearm, peace officer, and aggravated felony specifications. This indictment further charged defendant with having a weapon while under a disability and one count of fleeing and eluding. Each of these two counts contain firearm and violence specifications. 3 In the fourth case, Case No. CR-279208, defendant was charged with drug trafficking with a violence specification. Defendant pled not guilty to the charges in all four cases. On the date of trial, after the state called the first witness, defendant changed his plea from not guilty to guilty as to the amended counts of the indictment. In Case No. CR-271446, defendant pled guilty to one count of drug trafficking and one count of having a weapon while under a disability along with two violence specifications. The remaining counts of this case number were nolled. The court sentenced defendant to four to ten years for each of these two counts. In Case No. CR-278582, defendant pled guilty to one count of aggravated assault. He was sentenced to three to five years on this charge. In Case No. CR-278583, defendant pled guilty to two counts of felonious assault with a firearm, and aggravated felony specifica- tions. He was sentenced to 11 to 25 years on the two counts, with the sentence to run consecutive to the two firearm specifications. On each of these two counts, the court sentenced defendant to 11 to 25 years, to run concurrently with each other. These two counts, however, were to run consecutive to the gun specification in count one and consecutive to the gun specification in count 2. In Case No. CR-279208, defendant pled guilty to one count of drug trafficking with a violence specification. For this offense, the trial court sentenced him to 3 to 10 years. 4 In pronouncing these sentences, the trial court ordered that the sentences for all four cases were to run concurrently. These sentences were journalized on July 13, 1992. Almost four years later, on June 10, 1996, defendant filed motions to withdraw his guilty pleas from all four cases. On July 26, 1996, the trial court denied these motions. Thereafter, this court granted defendant's motion for delayed appeal. On appeal, defendant raises two assignments of error, the first of which states as follows: I. THE TRIAL COURT ERRED WHEN IT FAILED TO SUBSTANTIALLY COMPLY WITH RULE 11 OF OHIO'S RULES [SIC] OF CRIMINAL PROCEDURE. In the first assignment, defendant argues that the trial court did not substantially comply with Crim.R. 11 (C)(2)(a) when it failed to inform defendant that the sentences for the two gun specifications were non-probationable. Crim.R. 11 (C)(2)(a) requires a court, before accepting a plea of guilty or no contest in a felony case, to inform a defendant when he is ineligible for probation. The Supreme Court, however, has consistently held that a plea will not be vacated as long as the trial court substantially complied with Crim.R. 11. In State v. Nero (1990), 56 Ohio St.3d 106, the Court held that a guilty plea need not be vacated solely because the trial court did not specifically inform the defendant he was ineligible for probation. After reviewing the transcript from the plea hearing, the court concluded that, under the totality of 5 circumstances, the defendant knew he was going to jail and that he would not receive probation. Similarly, in the case at bar, defendant was aware that his sentence involved mandatory actual incarceration. At the hearing, the trial court did not specifically use the term non- probationable. The court did, however, engage in the following colloquy with defendant. THE COURT: Now, the charge to which you are desirous of pleading guilty to as contained in 278583 in Counts 1 and 2 as outlined by the Prosecutor would be aggravated felonies of the first carrying with it a possible sentence of 10, 11, 12, 13, 14, 15 years up to 25 years, and/or a fine of up to $10,000.00; do you understand that? MR. WILLIAMS: Yes, Your Honor, I do. THE COURT: Do you understand that there is [sic] two separate gun specifications contained herein, each punishable by a three year mandatory sentence? Do you understand that? MR. WILLIAMS: Yes, Your Honor, I do. THE COURT: And that is an actual sentence. Do you understand that? MR. WILLIAMS: Yes, Your Honor, I understand. THE COURT: And they will run consecutive to any sentence imposed by the Court in this case. Do you understand that? MR. WILLIAMS: Yes, Your Honor. (Tr. 244-245.) This court, as well as others throughout this state, have held that a trial court substantially complies with Crim.R. 11 if it refers to actual incarceration. State v. Sapp (Sept. 5, 1996), Cuyahoga App. No. 69429, unreported; State v. Ogletree (Jan. 20, 6 1994), Cuyahoga App. No. 64172, unreported; State v. Lake (June 25, 1996), Franklin App. No. 95APA08-1042, 95APA11-1421, unreported; State v. Abuhilwa (Mar. 29, 1995), Summit App. No. 16787, unreported; State v. Lewis (Aug. 19, 1994), Trumbull App. No. 92-T-4687, unreported. In criminal law parlance, actual is used to define time served in prison, as distinguished from the broader sentence. The totality of circumstances in the case at bar demonstrates substantial compliance with Crim.R. 11. Moreover, defendant stated that he understood the sentences. Accordingly, the trial court fulfilled its obligation to substantially comply with Crim.R. 11. Defendant's first assignment is overruled. Defendant's second assignment states as follows: II. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO TWO SEPARATE THREE-YEAR TERMS OF ACTUAL INCARCERATION WHEN ONLY ONE THREE-YEAR TERM OF ACTUAL INCARCERATION SHOULD HAVE BEEN IMPOSED. In this assignment of error, defendant argues that the trial court erred when it sentenced defendant to two separate firearm specifications when the acts were committed as part of the same transaction. Under R.C.2929.71(B) if felonies which contain the firearm specifications were committed as part of the same act or transaction, only one term of actual incarceration can be imposed. This issue poses a unique dilemma for the trial court. Often a defendant will plead guilty without the presentation of any evidence at the plea hearing. Then, at sentencing, the trial court must determine under R.C. 2929.71 whether the felonies were committed as part of the same transaction. The Sixth District, however, noted the following exception: 7 The statutes [R.C. 2929.71, R.C. 2941.25] also present similar problems for the trial court when a defendant elects to forgo a trial and enters a guilty plea. Absent some sort of agreement between the prosecutor and the defense, the trial court must still make its legal determination. State v. Yee (Nov. 18, 1994), Erie App. No. E-93-72, unreported. (Emphasis added.) In the case at bar, the state and defendant did enter into an agreement that each gun specification would be served separately. The following discussion occurred at the plea hearing. MR.GEDOS: Yes, I have with regard not only to the case file, but also there are some other case numbers, Case No. 279208, Case No. 271446 and Case No. 278582, and I believe that at this time and upon further interrogation by the Court, my client would like to change his pleas on all of these case numbers, as will be further outlined by Mr. Miller. THE COURT: Mr. Miller? MR. MILLER: Thank you, Your Honor. In the case that we are on trial on right now, Case 278583, it is my understanding that the Defendant will withdraw his previously-entered pleas of not guilty on Counts 1 and 2 and enter pleas of guilty to those counts as indicted. Those are aggravated felonies of the first degree with aggravated felony specs and gun specifications. Each of those counts carry with it a possible term of incarceration of three I'm sorry three plus for the gun spec, plus 10, 11, 12, 13, 14, or 15 on the minimum up to 25 on the maximum. There are gun specs on each of the first two counts. It is agreed between Mr. Gedos and the state that the laws of similar import have been considered and these are separate incidents which would carry each every one of the three year terms would be in effect on the gun specs. THE COURT: Three years well, there is a gun spec in 278583 on Count 1. MR. REULBACH: The Defendant is just agreeing that the two gun specs are not going to merge, Your Honor. THE COURT: In this case. 8 MR. MILLER: In this case, that is correct. THE COURT: So two separate gun specs. MR. MILLER: That is correct, Your Honor. If those pleas are forthcoming, the state would recommend that the remaining counts be nolled. (Tr. 233-234, emphasis added.) The preceding discussion establishes that, as part of the plea bargain, both the state and defendant agreed that the felonies containing the gun specifications would be treated as separate acts and that defendant would be sentenced according to two separate firearm specifications. A trial court's sentence regarding multiple firearm specifications will not be reversed, moreover, if the trial court fully explained the effect of the plea bargain and application of the actual term of incarceration for the firearm specification. State v. McClutchen (Dec. 8, 1994), Cuyahoga App. No. 66538, unreported. The transcript cited earlier on pp. 5-6 demonstrates defendant understood that there were two separate gun specifica- tions, that defendant would spend actual time for both, and that the sentences would be consecutive. Accordingly, because defendant understood and agreed to treat the two firearm specifications as separate, the second assignment is overruled. Judgment affirmed. 9 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. NAHRA, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI 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 journalization of this court's announcement of decision by the .