COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71230 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION THOMAS SMITH, JR. : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : MAY 15, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-311,614 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor SHERRY F. McCREARY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender DARIN THOMPSON, Assistant 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 - 2 - (Cont.) APPEARANCES: (Continued) For defendant-appellant: THOMAS SMITH, JR., pro se #293-926 G.C.I. 2500 S. Avon-Belden Road Grafton, Ohio 44044 - 3 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of the parties. This is an appeal from appellant Thomas Smith's conviction and sentence in the Cuyahoga County Court of Common Pleas follow- ing the acceptance of his guilty plea to the charge of Grand Theft in violation of R.C. 2913.02, with a previous conviction for a theft-related offense and a violence specification. Appellant, through counsel, sets forth the following sole assignment of error: MR. SMITH'S GUILTY PLEA MUST BE VACATED BE- CAUSE HE WAS PREJUDICED BY THE FAILURE OF THE TRIAL COURT TO SUBSTANTIALLY COMPLY WITH CRIM.R. 11. Appellant, pro se, sets forth the following two assignments of error: THE TRIAL COURT ERRED BY ACCEPTING APPEL- LANT'S GUILTY PLEA AND IMPOSING SENTENCE WITHOUT A WRITTEN WAIVER OF THE APPELLANT'S RIGHT TO A TRIAL BY JURY. THE TRIAL COURT ERRED BY ACCEPTING APPEL- LANT'S GUILTY PLEA WITHOUT FIRSTLY EXPLAINING ALL OF THE REQUIREMENTS OF THE COURT TO THE DEFENDANT-APPELLANT, DUE HIM UNDER CRIM. R. 11(C)(2)(a). - 4 - The facts that are material to the issues raised on appeal are as follows. On June 27, 1994, the Cuyahoga County Grand Jury returned a three-count indictment, which charged appellant in count one with grand theft, pursuant to R.C. 2913.02, with three "furthermore" clauses for previous convictions for theft-related offenses and a specification of a previous violence conviction, and in counts two and three with separate offenses of possession of criminal tools, pursuant to R.C. 2923.24, with a specification of a prior violence offense as to each. On September 28, 1994, appellant appeared in court with counsel for arraignment and entered not guilty pleas to the 1 charges. On October 11, appellant again appeared in court with counsel, withdrew his pleas of not guilty and entered a guilty plea to grand theft and the violence specification as set forth in count one of the indictment and one "furthermore" clause attached to that count. Upon the recommendation of the prosecutor, the remaining two "furthermore" clauses attached to count one and counts two and three of the indictment were dismissed. Appellant agreed to make full restitution in the amount of $200 and, thereafter, was sentenced to a term of two to five years imprisonment, to run concurrent with a sentence then currently being served. It is from this judgment and sentence that appellant has filed this delayed appeal. 1 The transcript is dated November 11, 1994; the docket indicates that the hearing took place October 11, 1994. - 5 - Appellant, in his sole assigned error presented by counsel and his second assigned error presented pro se, asserts that the trial court erred by accepting his guilty plea because the court failed to substantially comply with the mandates of Crim.R. 11, which require a determination that a defendant is making his plea voluntarily with an understanding of the nature of the charge to which he is pleading. Crim.R. 11(C)(2)(a). In support of his argument, appellant asserts that he was prejudiced in entering his plea because the prosecutor and judge gave inconsistent descriptions of the charge against him. Specifically, appellant claims that, although the prosecutor stated that under their agreement appellant would enter a plea to grand theft, one "furthermore" clause and one violence specification, when the court addressed appellant, the judge referred to all three "furthermore" clauses and, therefore, appellant did not understand the nature of the charges to which he was pleading. Appellee responds that sufficient evidence exists to warrant the conclusion that the appellant understood the charges against him, that the plea was voluntarily made, and that appellant suffered no prejudice as a result of the misstatement of the court. In reviewing a plea submitted by a defendant, an appellate court should focus on the dictates of Crim.R. 11(C) in determining whether the plea is voluntarily made. Crim.R. 11 provides in pertinent part: - 6 - C. Pleas of guilty and no contest in felony cases. * * * (2) In felony cases the court may re- fuse 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 the un- derstanding of the nature of the charge and of the maximum penalty involved, and if applicable, that he is not eligible for probation. Substantial compliance with Crim.R. 11 is required. State v. Nero (1990), 56 Ohio St.3d 106, 108, citing State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. Substantial compliance means that under the totality of the circumstances, a defendant subjec- tively understands the implications of his plea and the rights he is waiving. Nero and Stewart, supra. In order for a trial court to determine that the defendant in a criminal case understands the nature of the charge to which he was en- tering a guilty plea, it is not always neces- sary that the trial court advise the defen- dant of the elements of the crime or to spe- cifically ask the defendant if he understands the charge, so long as the totality of the circumstances are such that the trial court is warranted in making a determination that the defendant understands the charge. State v. Rainey (1982), 3 Ohio App.3d 441,442. A defendant who is challenging a guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. State v. Nero and State v. Stewart, supra. - 7 - The test for prejudice is whether the plea would have otherwise been made. Nero, supra. During the hearing at which appellant entered his guilty plea, the court made a direct inquiry into appellant's understanding of the plea arrangement and the charge levied against him. First, the prosecutor accurately stated the charge to which appellant was pleading as follows: *** [I]t's the State's understanding at this time that the defendant, Thomas Smith, is desirous of withdrawing his previously en- tered plea of not guilty to this three-count indictment and is prepared at this time to enter a plea of guilty to count one as amend- ed; to delete the two "furthermore" clauses. He is entering a plea to violation of code section 2913.02, a felony of the fourth de- gree. * * * If the plea to this indictment is forthcoming to the first count as amended, the State of Ohio will submit to this court that counts two and three be nolled in their entirety. Next, the court asked appellant whether he understood the prosecutor and his attorney. Appellant responded that he did. The court then addressed appellant, accurately stating that the crime to which he was about to plead in count one of the indictment, as amended, was that on April 13, 1994, in Cuyahoga County Ohio, in violation of R.C. 2913.02, appellant did "unlaw- fully, knowingly, and by deception, obtain or exerted control over money with the purpose to deprive the owner, Lina La Floria, of said property or services, the value of said property or services being less than $300." - 8 - The court then continued the colloquy but inadvertently addressed appellant as to the prior theft convictions set forth in the two "furthermore" clauses that were, in fact, deleted by the plea agreement. Finally, the court addressed the appellant as to his convic- tion of the crime of burglary in violation of R.C. 2911.12, which conviction represented "a *** crime of violence, which is a felony of the fourth degree, and does expose [him] to a indefinite sentence of one and a half, two, two and a half, three years minimum sentence, to a maximum of five years, and a $2,500 fine." The court then asked the appellant, "Do you understand that?" Appellant responded, "Yes, sir." Upon consideration of the entire record of proceedings in the trial court and the law as set forth above, this court finds that (1) the plea that appellant entered and the court accepted was precisely as set forth by the prosecutor and as appellant himself indicated he understood it to be, (2) appellant was not prejudiced by the trial court's inadvertent reference to the two "furthermore" clauses that were dimissed, (3) the trial court substantially complied with the requirements of Crim.R. 11 in accepting appellant's plea, and (4) appellant knowingly and voluntarily entered the plea upon which he was convicted and sentenced. Accordingly, these assignments of error are not well taken. - 9 - In his first assigned error of his pro se brief, appellant asserts that the trial court erred by accepting his guilty plea "without a written waiver of the appellant's right to a trial by jury." In Martin v. Maxwell (1963), 175 Ohio St. 147, the Supreme Court of Ohio held that "the provisions of 2945.05, Revised code, requiring the filing of a written waiver of a trial by jury are not applicable where a plea of guilty is entered by an accused." Accordingly, this court finds that this assignment of error is not well taken. On consideration whereof, this court finds that substantial justice was done the party complaining, and the judgment of the Cuyahoga County Court of Common Pleas is affirmed. - 10 - It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The Court finds there were reasonable grounds for this appeal. It is ordered that appellants recover of appellees their costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, PRESIDING JUDGE JAMES M. PORTER, JUDGE CHARLES D. ABOOD, JUDGE* *SITTING BY ASSIGNMENT: Charles D. Abood, retired judge of the Sixth District Court of Appeals, sitting by assignment of the Supreme Court of Ohio. 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 .