COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71159 and 71160 STATE OF OHIO : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION [CASE NO. 71159] : CARLOS R. DURAN-NINA : PER CURIAM [CASE NO. 71160] : DOMINGO CASTANEDA-DIAZ : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 30, 1997 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, Nos. CR-284487A and CR-284487B. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Edward F. Feran, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendants-Appellants: Paul Mancino, Jr., Esq. 75 Public Square Suite 1016 Cleveland, OH 44113-2098 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App. 25, the record from the 2 Cuyahoga County Court of Common Pleas and the briefs of counsel. Carlos R. Duran-Nina and Domingo Castaneda-Diaz, defendants- appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case Nos. CR-284487 and CR- 293158, in which the trial court accepted defendants-appellants' guilty pleas to various drug related offenses. Defendants- appellants assign three errors for this court's review. Defendants-appellants' appeal is not well taken. On July 9, 1992, the Cuyahoga County Grand Jury returned a multiple count indictment against defendants-appellants alleging numerous violations of Ohio's drug law. The most serious of these alleged offenses were engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, and drug trafficking in an amount equal to or exceeding three times the bulk amount, in violation of R.C. 2925.03. On July 14, 1992, defendants-appellants were arraigned whereupon each entered a plea of not guilty to the indictment. On November 9, 1992, defendants-appellants withdrew their formerly entered pleas of not guilty. Carlos Duran-Nina, defendant-appellant, then entered a plea of guilty to engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, as charged in count one; drug trafficking, in violation of R.C. 2925.03(A)(7), as charged in count two; a second drug law offense, in violation of R.C. 2925.03(A)(5), as charged in count twenty-one; a third drug law offense, in violation of R.C. 2925.03, as charged in count thirty-three; a fourth drug law offense, in violation of 3 R.C. 2925.03, as charged in count thirty-eight; and possession of criminal tools, in violation of R.C. 2923.24, as charged in count forty. Domingo Castaneda-Diaz, defendant-appellant, entered a plea of guilty to engaging in a pattern of corrupt activity and drug trafficking as charged in counts one and two; forgery, in violation of R.C. 2913.31, as charged in count four; a drug law offense, in violation of R.C. 2925.03(A)(5), as charged in count sixteen; a drug law offense, in violation of R.C. 2925.03, as charged in count thirty-eight; and possession of criminal tools, in violation of R.C. 2923.24, as charged in count forty. However, on December 11, 1992, the trial court sua sponte vacated defendants-appellants' respective guilty pleas after a lengthy discussion on the record prior to the scheduled sentencing. During this hearing, a dispute arose between the state and defense counsel regarding the nature and effect of defendants-appellants' pleas of guilty to the offense of engaging in a pattern of corrupt activity as charged in the first count of the indictment. As a result, the trial court determined that sentencing could not proceed as the guilty pleas in question were arguably defective. On May 12, 1993, defendants-appellants once again entered pleas of guilty to engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, as charged in count one; drug trafficking, in violation of R.C. 2925.03, as charged in count two; and a second drug law offense, in violation of R.C. 2925.03, as amended in count eleven. The remaining counts in the indictment 4 were to be nolled by the state and an agreed sentence was to be imposed by the trial court. Prior to accepting defendants-appellants' guilty pleas, the trial court engaged defendants-appellants in an oral dialogue. The transcript of the plea hearing contains the following notation: The following proceedings were translated by defense counsel Jamie Serrat to the defendants and responses were made in English. (T. 13.) The trial court proceeded to explain to defendants- appellants their constitutional right to a trial by a jury or judge, the right to be represented by counsel, the right to cross- examine witnesses against them, the right to subpoena witnesses on their behalf, the right against self-incrimination and that the state was required to prove defendants-appellants' guilt beyond a reasonable doubt. (T. 12-14.) The trial court then stated the offense to which each defendant was entering a guilty plea, the degree of the charged offense as well as the maximum possible term of imprisonment and fine that could be imposed. The trial court stated further, that, as a condition for the plea agreement, there would be an agreed sentence imposed. Lastly, the trial court inquired as to defendants-appellants' citizenship status and, upon learning that neither defendant was a United States citizen, that the possible consequences of their respective guilty pleas could be deportation. (T. 15-19.) The trial court then sentenced defendants-appellants to the agreed sentence of five to twenty-five years incarceration on the 5 first count, seven years actual to twenty-five years on the second count and three years actual to fifteen years on the amended eleventh count. Counts two and eleven were to be served consecutively with each other and concurrent with the sentence imposed in count one. No mandatory fine was imposed due to defendants-appellants' indigency status. On August 23, 1996, defendants-appellants filed a motion for leave to file a delayed appeal from the judgment of the trial court. On October 2, 1996, this court granted defendants- appellants' motion. The instant appeal now follows. On appeal, defendants-appellants assign three errors for this court's review. Defendants-appellants' first assignment of error states: DEFENDANTS WERE DENIED DUE PROCESS OF LAW WHEN THEY ENTERED PLEAS OF GUILTY WITHOUT THE BENEFIT OF AN INDEPENDENT INTERPRETER AND WHERE THERE IS NO SHOWING ON THE RECORD THAT THE ADVICE OF RIGHTS GIVEN BY THE COURT WAS IMPARTED TO THEM. Defendants-appellants' second assignment of error states: DEFENDANTS WERE DENIED DUE PROCESS OF LAW WHEN THE COURT ACCEPTED PLEAS OF GUILTY BY NON- ENGLISH SPEAKING DEFENDANTS WITHOUT DETERMINING WHETHER DEFENDANTS UNDERSTOOD THE NATURE OF THE OFFENSE TO WHICH THEY WERE PLEADING GUILTY. Defendants-appellants' third assignment of error states: DEFENDANTS WERE DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT ADEQUATELY INFORM THE DEFENDANTS CONCERNING THEIR CITIZENSHIP STATUS AS REQUIRED BY S2843.031 OF THE OHIO REVISED CODE. 6 Having a common basis in both law and fact, this court shall consider defendants-appellants' first, second and third assignments of error simultaneously. Defendants-appellants maintain that the trial court erred in failing to appoint an independent interpreter to translate the proceedings for defendants-appellants into Spanish. Specifically, it is defendants-appellants' position that the record fails to demonstrate that the plea in question was knowing, intelligent and voluntary since, in the absence of an interpreter, it cannot be determined whether defendants-appellants understood their constitutional rights; the nature of the underlying criminal offenses and the possible penalties that could be imposed; or that they would most likely be deported from the United States as a result of their convictions. Defendants-appellants' first, second and third assignments of error are not well taken. 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 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 7 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. 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. 8 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. In the case sub judice, a review of the record demonstrates that defendants-appellants failed to request that an interpreter be appointed to translate the trial court proceedings from English into Spanish. The record demonstrates further that defense counsel for Domingo Casteneda-Diaz spoke fluent Spanish and translated the proceedings into Spanish. At no time did either defendant express confusion or any lack of understanding as to their constitutional rights or the nature of the offenses to which they were entering guilty pleas. In addition, the sentence to be imposed was an agreed sentence which defense counsel, the state and trial court explained at length to defendants-appellants. Similarly, 9 defendants-appellants' citizenship status and the possibility of deportation was explained on two separate occasions by the trial court. (T. 19, 21.) The primary concern regarding a functionary such as an interpreter is one of the qualifications, not veracity or fidelity as, in the absence of special circumstances, the latter qualities are assumed. See United States v. Perez (1981), 651 F.2d 268, 273; State v. Ruiz (March 16, 1994), Summit App. No. 16063, unreported. Defendants-appellants have failed to put forth any evidence that the interpreter, in this case defense counsel, was not properly qualified, nor does the record contain any evidence in support of such an inference. This court has, on numerous occasions, affirmed guilty pleas where an interpreter was not sworn in pursuant to R.C. 2311.14(B) and there was no evidence of the interpreter's lack of veracity or fidelity. State v. Felix (Dec. 15, 1994), Cuyahoga App. No. 66617, unreported; State v. Morales (May 7, 1992), Cuyahoga App. No. 62075, unreported. Given the fact that the lower court record is completely void of any evidence to challenge the accuracy or truthfulness of defense counsel's interpretation of the proceedings or lack of understanding by defendants-appellants, it is apparent that the trial court did, in fact, comply with the mandates of Crim.R. 11(B) in accepting defendants-appellants' pleas of guilty. Moreover, contrary to defendants-appellants' assertion, the record clearly demonstrates that the trial court informed defendants-appellants of the possibility of deportation pursuant to R.C. 2943.031 as a 10 result of their guilty pleas. In fact, defense counsel stated at one point during the proceedings: THE COURT: Mr. Serrat, would you ask your clients if they understand that they can be deported as a result of this plea? MR. SERRAT: Just let me say yes, Judge. Yes, they are well aware of that. MR. TITTLE: We have talked with them at length about that, your Honor, and they understand that. MR. SERRAT: They wish to be deported. THE COURT: Understood. We can move forward to sentencing at this time. (T. 21, 22.) For the foregoing reasons, this court finds that defendants- appellants' first, second and third assignments of error are not well taken. Judgment of the trial court is affirmed. It is ordered that appellee recover of appellants 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. 11 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, 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 .