COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71457 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT McQUEEN : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : MAY 8, 1997 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-303175 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Chief Public Defender EDWARD WALSH, ESQ. DONALD GREEN, ESQ. Assistant County Prosecutor Assistant Public Defender The Justice Center, 8th Fl. 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - 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 court of common pleas and the briefs and oral arguments of counsel. Defendant-appellant Robert McQueen ("defendant") appeals from a guilty plea, complaining the trial court failed to properly inform him, pursuant to Crim.R. 11, of the maximum penalty he faced. The Grand Jury returned a two count indictment against defendant charging him with aggravated burglary and attempted rape. At his arraignment on January 18, 1994, defendant entered a plea of not guilty. On February 17, 1994, defendant appeared in court with his attorney. After a brief exchange with the court, defendant spoke off the record with his attorney. The court then asked defendant several questions and explained to him the rights he would waive by pleading guilty. Defendant said he understood he would waive his constitutional rights by pleading guilty. Defendant then pled guilty to aggravated rape in exchange for the state nolling the aggravated burglary charge. Subsequently, defendant was sentenced to a three to fifteen year period of incarceration. Defendant's sole assignment of error states as follows: THE TRIAL COURT NEVER INFORMED ROBERT MCQUEEN OF THE POSSIBLE SENTENCES HE COULD RECEIVE AND THEREFORE VIOLATED HIS CONSTITUTIONAL RIGHT UNDER THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTION 10, ARTICLE - 3 - I OF THE OHIO CONSTITUTION AND RULE 11 OF THE OHIO RULES OF CRIMINAL PROCEDURE. Defendant argues the trial court never stated the maximum penalty he faced, in violation of Crim.R. 11, and therefore his plea was not knowingly and voluntarily entered. The state maintains the trial court substantially complied with Crim.R. 11 because defendant stated he understood the possible penalties involved. Crim.R. 11(C)(2)(a) provides: "(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 the understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation." (Emphasis added.) In support of his argument, defendant cites State v. Calvillo (1991), 76 Ohio App.3d 174 and State v. Gibson (1986), 34 Ohio App.3d 146. In Calvillo, the defendant was informed of the wrong penalties by the trial court and his conviction was vacated. In Gibson, the defendant argued he was not advised of the maximum penalty and this court held "[n]othing [in the record] gave the court reason to believe that this defendant knew the potential maximum penalties before he pled guilty." The defendant's conviction was then vacated. - 4 - These cases are both distinguishable from the present case. First, defendant was not informed of the wrong penalties he faced. Second, because defendant had a recent discussion with his attorney and because he stated he understood the penalties he was facing there was evidence indicating defendant understood the maximum penalty. Advising a defendant of the maximum penalty involved is not a constitutional matter. Thus, when reviewing the question of a trial court's compliance with Crim.R. 11 a reviewing court must determine whether based on the totality of the circumstances the trial court substantially complied with the rule. In State v. Nero (1990), 56 Ohio St.3d 106 and State v. Carter (1979), 60 Ohio St.2d 34, 38, the Ohio Supreme Court held if defendant receives the necessary information, here the maximum penalty, whether from the trial court or defense counsel, then it can be assumed defendant understands the information and the requirements of Crim.R. 11 are satisfied. In the present case the state informed the trial court of the charges pending against defendant. The trial court then initiated a dialogue with defendant. During this dialogue, defendant requested time to speak with his attorney and the trial court granted this request. After this consultation, the trial court explained to defendant the rights he was waiving by pleading guilty and defendant answered he understood he was waiving his rights. The following exchange then occurred: - 5 - THE COURT: Have you discussed this charge with your lawyer and do you understand what you are pleading guilty to? MR. MCQUEEN: Yes. THE COURT: As well as the possible penalties involved? MR. MCQUEEN: Yes. Crim.R. 11 (C)(2)(a) states defendant must understand the nature of the charge and the maximum penalty he is facing. It is obvious from this exchange that defendant understood the penalty he was facing. Defendant requested permission from the trial court to speak with his attorney because he was unsure of his plea. Defendant and his attorney then had a discussion off the record. Subsequently, when asked by the trial court whether he understood the penalties he faced, defendant replied "yes." See also State v. Flint (1986), 36 Ohio App.3d 4. In addition, even if the trial court did not comply with Crim.R. 11, defendant must show that he was prejudiced by the trial court's failure to comply before a guilty plea will be vacated. Nero, at 106. Defendant neither argues nor presents any evidence that he was prejudiced by the trial court's alleged failure to inform him of the maximum penalty he was facing. Based on the totality of the circumstances, the trial court substantially complied with Crim.R. 11 because defendant had a recent discussion with his attorney and subsequently stated he - 6 - understood the penalties he was facing. Therefore, defendant's sole assignment of error is overruled. Judgment affirmed. - 7 - 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. JOHN T. PATTON, JUDGE JAMES D. SWEENEY, CHIEF JUSTICE KENNETH A. ROCCO, 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 .