COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71461 STATE OF OHIO : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appelles : : and : -vs- : OPINION : ACHILLES ROBERTSON : PER CURIAM : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 15, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 324826 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: George Rukovena, Esq. Henry J. Hilow, Esq. Asst. County Pros. McGinty, Gibbons & Hilow 8th Floor Justice Center 1375 E. Ninth Street, #1920 1200 Ontario Street Cleveland, Ohio 44114 Cleveland, Ohio 44113 - 1 - PER CURIAM: This matter comes before this court on the accelerated docket. Therefore, pursuant to App. R. 11.1 and Loc. R. 25, this court may state the reasons for its decision in brief and conclusory form. Appellant appeals from his sentence following a plea of guilty on the grounds that the trial court failed to notify him that he would be receiving a mandatory sentence. As the offense to which appellant pled guilty was a probationable offense, the trial court did not err. Appellant was indicted on one count of drug abuse in violation of R.C. 2925.11. The indictment alleged that appellant obtained, possessed, or used Cocaine, a Schedule II drug, in an amount less than bulk. As the body of the indictment also included two prior drug abuse convictions, pursuant to R.C. 2925.11(C)(1), the offense is elevated to a felony of the third degree. On January 10, 1996, after the trial court denied appellant's motion to suppress, appellant pled guilty to the indictment as charged. Appellant was sentenced to the Lorain Correctional Institute for a period of one year, with credit for jail time dating from the indictment, and the fine was waived. Appellant's delayed appeal followed. ASSIGNMENT OF ERROR Appellant states the following as his sole assignment of error: CRIMINAL LAW 11(C) IS NOT COMPLIED WITH WHEN THE TRIAL JUDGE FAILS TO ADEQUATELY ASSESS IF THE GUILTY PLEA IS KNOWINGLY MADE AND THAT MR. ROBERTSON WAS AWARE THAT PRISON TIME WAS MANDATORY - 2 - Crim. R. 11(C) provides, in pertinent part: (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 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. When reviewing a plea submitted by a defendant, the focus should be on whether the dictates of Crim. R. 11 have been followed. State v. Kelley (1991), 57 Ohio St.3d 127, 128. Furthermore, when reviewing the record, the appellate court must ascertain whether the defendant voluntarily and knowingly waived his constitutional rights. Id. at 129. Appellant does not dispute that the trial court properly advised him of his constitutional rights. Rather, appellant maintains the trial court did not comply with Crim. R. 11(C) because it failed to advise him that he would serve a mandatory sentence if he pled guilty. Appellee argues that the offense is probationable pursuant to R.C. 2925.11(G)(1)(a), thus prison time was not mandatory and the trial court did not err by failing to advise the defendant that he would serve a definite sentence. - 3 - There is no dispute that appellant pled guilty to a felony of the third degree. R.C. 2929.11(D) provides that one who pleads guilty to a felony of the third degree, and did not cause or threaten physical harm, or has been previously convicted of an offense of violence shall be imprisoned for a definite term, and may be fined or ordered to pay restitution. R.C. 2929.11(D)(1) provides the term of imprisonment shall be one, one and a half or two years. However, R.C. 2925.11(G)(1)(a) provides: [i]n lieu of sentencing an offender who has pleaded guilty to a violation of this section prior to the commencement of the trial in the criminal action, to a definite or indefinite term of imprisonment in a detention facility, the court may place the offender on conditional probation under this division *** As the offense to which appellant pled guilty was therefore, a probationable offense, the trial court did not err when it failed to inform him that he would be receiving a mandatory sentence. This matter is affirmed. - 4 - It is ordered that appellee recover of appellant his 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. 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 JOHN T. PATTON, JUDGE 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 .