COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71374 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION WILLIE VICKERS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 19, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-321390. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Fedele Desantis, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Nicholas K. Thomas, Esq. 21801 Lakeshore Boulevard Euclid, OHIO 44123 -2- MATIA, DAVID, P.J.: Willie Vickers, defendant-appellant, appeals from his plea of guilty in the Cuyahoga County Court of Common Pleas, Case No. CR- 321390, to the offense of aggravated burglary with aggravated felony and violence specifications in violation of R.C. 2911.11. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On March 28, 1995, the Cuyahoga County Grand Jury returned a two-count indictment against defendant-appellant. The first count of the indictment charged defendant-appellant with aggravated burglary in violation of R.C. 2911.11. Count one also contained a violence specification as well as an aggravated felony specification, both arising out of a prior conviction for aggravated burglary. The second count of the indictment charged defendant-appellant with theft in violation of R.C. 2913.02. Count two contained a furthermore clause as well as a violence specif ication arising out of the same aggravated burglary conviction that formed the basis for the specifications in the first count of the indictment. As charged in the indictment, count one constituted an aggravated felony of the first degree punishable, by virtue of the aggravated felony and violence specifications, with a non- probational indefinite term of incarceration of 10, 11, 12, 13, 14 or 15 years to 25 years maximum. Count two of the indictment -3- constituted a felony of the fourth degree punishable with an indefinite sentence pursuant to R.C. 2941.143. On March 31, 1995, defendant-appellant was arraigned whereupon a plea of not guilty was entered to both counts of the indictment. On May 2, 1995, defendant-appellant withdrew his formerly entered plea of not guilty and entered a plea of guilty to aggravated burglary with the aggravated felony and violence specifications as charged in the first count of the indictment. As part of the plea agreement, the state entered a nolle prosequi as to the second count of the indictment. In exchange for the dismissal of count two, defendant-appellant agreed to serve a ten year term of actual incarceration without the possibility of shock probation or super shock probation. (Tr. 9, 10.) Prior to entering into the plea agreement, the state set forth the proposed plea agreement, the potential sentences involved and that defendant-appellant had agreed to a minimum ten year term of actual incarceration. (Tr. 4, 5.) This statement occurred on the record in the presence of defense counsel and defendant-appellant. The trial court then addressed defendant-appellant and engaged in an oral dialogue regarding defendant-appellant's constitutional right to a trial by judge or jury, the right to confront and cross- examinewitnesses against him, the right to subpoena witnesses in his own behalf, the right against self-incrimination, the right to -4- counsel, either retained or appointed, throughout all proceedings, and the state's burden of proof at trial. (Tr. 7, 8.) The trial court also discussed the original charge set forth in count one of the indictment, the aggravated felony and violence specifications contained therein and the maximum possible sentence which could be imposed under the circumstances. The trial court then set forth the actual sentence to be imposed stating, I will, in fact, accept the plea bargain where there is an agreed sentence of the minimum term of 10 years actual incarceration to a maximum of 25 years plus costs. (Tr. 9.) Defendant-appellant acknowledged that he understood his constitutional rights as set forth by the trial court and that he was entering a plea of guilty to count one of the indictment voluntarily and of his own free will. (Tr. 10.) Immediately following the plea hearing, the trial court sentenced defendant-appellant to the agreed sentence of 10 years actual incarceration to 25 years at the Lorain Correctional Institute plus costs. Defendant-appellant now brings a delayed appeal from the May 2, 1995 judgment of the trial court. II. ASSIGNMENT OF ERROR Willie Vickers', defendant-appellant's, sole assignment of error states: THE APPELLANT WAS DENIED HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. -5- A. THE ISSUE RAISED: CRIM.R. 11 COMPLIANCE. Defendant-appellant argues, through his sole assignment of error, that his plea of guilty to the offense of aggravated burglary was not entered in a knowing, intelligent and voluntary manner. Specifically, defendant-appellant maintains that both the state and the trial court failed to properly address the specifications contained in the first count of the indictment and ensure that defendant-appellant understood that he was entering a plea of guilty to the specifications as well as to the indicted offense of aggravated burglary. Defendant-appellant maintains further that the specifications in question incorrectly identify the offense for which defendant-appellant was previously convicted as aggravated burglary when, in fact, defendant-appellant was convicted of attempted burglary, a felony of the third degree. Consequently, defendant-appellant argues that his plea of guilty was defective. Defendant-appellant's sole assignment of error is not well taken. -6- B. STANDARD OF REVIEW FOR CRIM.R. 11. 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 firstaddressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the 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 etermine whether the defendant fully comprehends the consequences f his plea of guilty. Such a determination is made through an oral ialogue between the trial court and the defendant who is entering he plea of guilty. -7- 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, aragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a rialcourt in accepting a plea of guilty, need only substantially omply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 1 Ohio St.2d 86, at 92. Literal compliance with Crim.R. 11 is the preferred practice. owever, the fact that the trial court did not strictly comply with rim.R. 11 does not compel vacation of the defendant's guilty plea f the reviewing court determines that there was substantial ompliance. State v. Nero (1990), 56 Ohio St.3d 106. In Nero, the hio 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. d. At 108. . THE TRIAL COURT COMPLIED WITH CRIM.R. 11 IN ACCEPTING DEFENDANT-APPELLANT'S GUILTY PLEA. -8- In this case, a review of the May 2, 1995 plea transcript emonstrates that the trial court complied with the mandates of rim.R. 11 enabling defendant-appellant to enter a knowing, ntelligent and voluntary plea of guilty to the amended indictment. efendant-appellant maintains that the trial court failed to fully ddress the specifications contained in the first count of the ndictment. The trial court record does not support defendant- ppellant's contention. After explaining fully defendant-appellant's constitutional ights, the trial court proceeded to address defendant-appellant egarding the charge contained in count one and the violence and ggravated felony specifications: THE COURT: Do you understand by pleading guilty you give up all these Constitutional rights I just outlined for you? THE DEFENDANT: Yes, I understand. THE COURT: Do you understand this Court can and will impose sentence immediately on a plea of guilty? THE DEFENDANT: Yes. THE COURT: You are charged in the first count with aggravated burglary under Revised Code 2911.11, in that on or about March 2nd, 1995, in Cuyahoga County, you unlawfully by force, stealth or deception, trespassed in an occupied structure, or separately secured, or separately occupied portion thereof with the purpose to commit a theft offense or a felony, and the occupied structure is the permanent or temporary habitation of Gregory and Jane Cooper, while any person was present or likely to be present. Specification one for violence. Further find and specify you were convicted of an offense of violence with count on or about -9- the 6th day of August, 1981, in the Court of Common Pleas, Cuyahoga County, Case Number 161619; you were convicted of aggravated burglary. Specification two, sir, is an aggravated felony specification, and it refers to the same aggravated burglary conviction in 1981 as I just went over for you in specification one. Do you understand what you have been charged with in this count of the indictment? THE DEFENDANT: Yes, I do. THE COURT: Sir, this is an aggravated felony of the first degree. It carries with it actual imprisonment term of 10 years, 11 years, 12, 13, 14 or 15 years as a minimum to a maximum term of 25 years, and a possible fine anywhere up to $10,000 plus court costs. This is a nonprobationable offense, meaning you must go to prison. I will, in fact, accept the plea bargain where there is an agreed sentence of the minimum term of 10 years actual incarceration to a maximum term of 25 years plus costs. Do you understand all that? THE DEFENDANT: Yes. THE COURT: You understand count two will be dismissed? THE DEFENDANT: Yes, I do. THE COURT: Knowing what I outlined for you, how do you plead to count one, aggravated burglary? THE DEFENDANT: I plead guilty. Tr. 8-10.) A complete examination of the record fails to support efendant-appellant's assertion that he did not knowingly enter into he plea agreement in question. Not only did the trial court horoughly explain all defendant-appellant's constitutional rights n accordance with Crim.R. 11 but the trial court also inquired as -10- o whether defendant-appellant was aware of the specific offense to hich he was entering the guilty plea, including the underlying iolence and aggravated felony specifications. At no time during he entire proceedings did defendant-appellant express confusion or lack of understanding regarding the nature of the plea agreement r as to the nature of the specifications. State v. Elliott (1993), 6 Ohio App.3d 772, 796. Defendant-appellant also maintains that the prior offense which ormed the basis for the underlying specifications was incorrectly dentified as aggravated burglary when, in fact, the offense that efendant-appellant was convicted of was attempted burglary, a elony of the third degree. While it is true that defendant- ppella nt's prior conviction was for the offense of attempted urglary, that offense was not a third degree felony as defendant- ppellant maintains but rather an aggravated felony of the third egree. See R.C. 2911.12 and R.C. 2923.02(E). The offense of ttempted burglary also constitutes an offense of violence pursuant o R.C. 2901.01(I). Therefore, even though the underlying ndictm ent did contain a clerical error, that error was not rejudicial to defendant-appellant since the actual offense which ormed the basis for the specifications contained in count one was till an aggravated felony as well as an offense of violence. For the foregoing reasons, defendant-appellant's sole ssignment of error is not well taken. Judgment of the trial court is affirmed. -11- It is ordered that appellee recover of appellant costs herein axed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court irecting the Common Pleas Court o carry this judgment into execution. The defendant's conviction aving been affirmed, any bail pending appeal is terminated. Case emanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the ules of Appellate Procedure. YKE, J. and AHRA, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE .B. This entry is an announcement of the court's decision. See pp.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); oc.App.R. 27. This decision will be journalized and will become he judgment and order of the court pursuant to App.R. 22(E) unless motion for reconsideration with supporting brief, per App.R. 6(A), is filed within ten (10) days of the announcement of the ourt's decision. The time period for review by the Supreme Court f Ohio shall begin to run upon the journalization of this court's nnouncement of decision by the clerk per App.R. 22(E). See, also, .