COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71675/71676/71677/71678 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) THOMAS FRAZIER ) ) Defendant-Appellant ) Date of Announcement of Decision OCTOBER 9, 1997 Character of Proceeding Criminal appeals from Court of Common Pleas Case Nos. CR-318328/CR- 321177/CR-322046/CR-320159 Judgment Affirmed; remanded for resentencing Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES SARA J. HARPER, ESQ. Cuyahoga County Prosecutor 13807 Drexmore Road DAVID ZIMMERMAN, Assistant Cleveland, Ohio 44120 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant Thomas Frazier appeals from his convictions following guilty pleas on eleven separate counts in four indictments. Pursuant to a plea agreement, ten other counts were nolled. Defendant contends his pleas were not knowingly and voluntarily made, his counsel was ineffective in failing to move to withdraw his plea, the court abused its discretion in imposing maximum sentences and the court journal entry is inconsistent with the oral sentence ordered in open court. We affirm but remand to correct the sentencing journal entry. On August 3, 1995, defendant appeared to enter guilty pleas pursuant to a plea bargain reached with the State. The prosecutor explained the plea bargain that had been negotiated indicating the nature of each offense with the minimum and maximum sentences applicable. In the first indictment (CR-318328), defendant was to plead guilty to attempted grand theft (R.C. 2913.02/2923.02) with a violence specification. In the second indictment (CR-320159), he was to plead guilty to two counts: count one was drug trafficking (R.C. 2925.03) with violence and firearm specifications; count six was having a weapon while under disability (R.C. 2923.13) with a firearm specification. In the third indictment (CR-321177), he was to plead guilty to two counts: count one was grand theft (R.C. 2913.02) with a violence specification; count two was failure to comply with an order or signal of a police officer (R.C. 2921.331) with a violence specification. In the fourth indictment (CR- 322046), he was to plead guilty to: failure to comply with an order 3 or signal from a police officer (R.C. 2921.331) with a violence specification; having a weapon while under disability (R.C. 2923.13) with violence and firearm specifications; drug trafficking (R.C. 2925.03) (amended to less than three times the bulk amount); vandalism (R.C. 2909.05) with a violence specification; and assaulting a police officer (R.C. 2903.13) with a violence specification. (Tr. 10-18). After the prosecutor presented the plea bargain as aforesaid, defendant's attorney stated: Your honor, I have discussed this matter at length with Mr. Frazier on a number of occasions *** Mr. Frazier, I believe, is aware and knows his constitutional and trial rights, as we have discussed them. It's my understanding after knowing these factors and the plea arrangement made by the prosecuting attorney's office, Mr. Frazier would now proffer to the court guilty pleas to the counts *** I believe these pleas would be made voluntarily and knowingly. (Tr. 18-19). The court determined that defendant wished to accept the plea agreement and then engaged in a colloquy as follows with the defendant: he was 31 years old and had an eleventh grade education; the defendant indicated that he understood the proceedings; the court instructed the defendant to interrupt if he did not understand or found anything confusing; he was not under the influence of drugs or alcohol; and was satisfied with his lawyer's representation. The court then explained to the defendant his constitutional rights to trial by jury or judge, to subpoena witnesses, to cross-examine witnesses, to require the State to 4 prove guilt beyond a reasonable doubt and his privilege against self-incrimination without comment. (Tr. 20-21). The court then reviewed for defendant the possible fines and sentences for each count in each indictment to which he was going to plead, stopping twice to ask whether the defendant understood the ramifications of his guilty pleas which indicated that he understood. The court asked whether any threats or promises were made. Defendant indicated that there were not. The trial court then informed him that it could proceed to sentencing immediately after he pled. (Tr. 22-26). Subsequently, defendant pled guilty as indicated. The court expressly found that defendant had entered his pleas knowingly and voluntarily with full understanding of his constitutional rights. The trial court asked both the prosecutor and defense counsel whether they were satisfied that the court had complied with Crim.R. 11. Both the prosecutor and counsel for the defendant indicated that they believed the trial court was in compliance. The trial court then accepted defendant's guilty pleas. The trial court heard the defendant and his attorney in mitigation prior to sentencing. The trial court then proceeded to sentencing. (Tr. 26-29). Following defendant's sentencing, his motion for reconsider- ation and mitigation of sentencing was denied on October 4, 1995. (Tr. 32-42). This Court granted a delayed appeal on December 2, 1996. 5 We will address defendant's assignments of error in the order asserted. I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DENIED APPELLANT DUE PROCESS OF LAW BY ACCEPTING APPELLANT'S GUILTY PLEAS WHEN THE PLEAS WERE NOT MADE KNOWINGLY AND INTELLIGENTLY, IN VIOLATION OF CRIM.R. 11(C) AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. II. DEFENSE COUNSEL'S FAILURE TO FILE A MOTION TO WITHDRAW APPELLANT'S GUILTY PLEAS DEPRIVED APPELLANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. We will address these two assignments together as they both relate to the knowing and voluntary nature of defendant's plea. Because we find no merit to Assignment of Error I, Assignment of Error II becomes moot. Defendant basically contends on appeal that because he pled guilty to so many counts with differing sentences, his plea could not have been knowingly and voluntarily made. Specifically, it is argued that the trial court's explanation of the charges presented an overwhelming amount of information with regard to the different sentencing possibilities. The contention appears to be that the trial court was too thorough in laying out the various choices, i.e., defendant had to absorb too much information. Defendant's contention that his plea was not entered voluntarily and knowingly in compliance with Crim.R. 11 is without merit. We have carefully reviewed the transcript of the plea hearing and believe the trial court painstakingly spelled out the consequences 6 of the pleas and their various ramifications to the satisfaction of Crim.R. 11(C). That there may have been a lot of information to digest appears to be the product of what the prosecutor described as a one-man crime wave. This Court recently described our role on appeal from a guilty plea as follows in State v. Scott (1996), 113 Ohio App.3d 401, 403: When a trial court or appellate court is reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim. R. 11 have been followed. State v. Kelley (1991), 57 Ohio St.3d 127, 128. Crim. R. 11(C) states in pertinent part: Pleas of guilty and no contest in felony cases. * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no con- test, 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 of 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. 7 The taking of a plea will be affirmed on appeal so long as the reviewing court determines that the trial court substantially complied with the requirements of Crim. R. 11. State v. Stewart (1977), 51 Ohio St.2d 87. "Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St. 3d 106, 108. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligentlyand voluntarily made must show a prejudicial effect. Id. Given defendant's responses at the plea hearing, the trial court was warranted in assuming that the defendant understood the charges. His attorney had discussed the plea bargain at length with defendant on a number of occasions. (Tr. 18-19). Furthermore, the trial court thoroughly explained the possible ramifications of pleading guilty to each of the charges. Before accepting the guilty plea, the court asked both the defense attorney and the prosecutor whether they believed the court had complied with the requirements of Crim.R. 11. Both attorneys indicated that they believed that the trial court complied. The transcript of the plea and sentencing hearing established the trial court clearly explained to the defendant the charges against him, the consequences of the plea and the possible sentences that could be imposed up to and including the maximum sentence and fines. At no time during the hearing did defendant indicate to the trial court that he was confused, overwhelmed, or that he did not understand any part of the proceedings. Defendant indicated that he understood the charges. Based on these circumstances and the meticulous care taken by the trial 8 court to safeguard defendant's rights, the trial court was warranted in determining that the defendant pled voluntarily and knowingly. We can not find otherwise on this record. Assignments of Error I and II are overruled. III. THE TRIAL COURT ABUSED ITS DISCRETION IN ARBITRARILY SENTENCING APPELLANT TO MAXIMUM TERMS OF IMPRISONMENT AND ORDERING FINES WITHOUT CONSIDERING HIS FINANCIAL RESOURCES. Defendant contends that the trial court abused its discretion in sentencing and fining the defendant by failing to take into account factors set forth in R.C. 2925.03, 2929.13 and 2929.14. We find no merit to this contention. A trial court has broad discretion if the sentence imposed is within the statutory limits. State v. Dultmeyer (1993), 85 Ohio App.3d 81, 83. The Ohio Supreme Court has held that a Court of Appeals cannot find that a trial court abused its discretion by imposing a severe sentence if the sentence is within the limits authorized by statute. Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 24. However, the trial court has a duty to consider the statutory aggravating and mitigating factors as set forth in R.C. 2929.13. State v. Flors (1987), 38 Ohio App.3d 133, 140. There is no evidence to show that the trial court did not consider the appropriate statutory guidelines. (R.C. 2929.12(C)). Although those factors must be considered, they clearly state they "do not control the court's discretion" to sentence within the limits of the law. State v. Adams (1988), 37 Ohio St.3d 295, paragraph three of syllabus, holds that a "silent record raises the presumption that 9 a trial court considered the factors contained in R.C. 2929.12." The trial court is under no duty to set forth its reasoning. State v. Cyrus (1992), 63 Ohio St.3d 164, 166. In Adams, as in the case at bar, the defendant never requested a presentence report nor did he object to its absence at sentencing. The Supreme Court recognized that ordering a presentence report lies within the sound discretion of the trial court. "Absent a request for a presentence report in accordance with Crim.R. 32.2, no grounds for appeal will lie based on a failure to order the report, except under the most exigent of circumstances." Adams, paragraph four of syllabus. There is no proffer that suggests that a presentence report would have benefitted this defendant. In imposing the maximum sentences in the present case, the court is presumed to have considered the following mitigation factors pursuant to R.C. 2929.12(C): (C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: (1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so; (2) The offense was the result of circumstances unlikely to recur; (3) The victim of the offense induced or facilitated it; (4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense; 10 (5) The offender acted under strong provocation; (6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense; (7) The offender is likely to respond quickly to correctional or rehabilitative treatment. It is presumed that the trial court considered the factors set forth in R.C. 2929.12 and 2929.13 and the burden is on defendant to rebut that presumption. State v. Cyrus, supra. Contrary to defendant's argument, the trial court is not required to state in the record that it considered the criteria. State v. White (Jan. 20, 1994), Cuyahoga App. No. 63879, unreported (citing State v. Koons (1984), 14 Ohio App.3d 289). The defendant has not rebutted the presumption in favor of the mitigating factors. Regardless of the number of crimes for which defendant is being sentenced, the statutory criteria to be considered by the trial court remains the same for each. How severe a sentence to impose is a decision that can be made in short order by considering the criteria in light of the defendant's record and the nature of the crimes committed by the defendant. Furthermore, there is evidence in the record that indicates that the trial court took into consideration the factors set forth in R.C. 2929.13 before imposing sentence. The transcript does indicate that the trial court reviewed the defendant's prior history at the time of sentencing. The trial court also stated a few of the factors it took into consideration when sentencing the 11 defendant, namely 2929.12(B)(1): The offender is a repeat or dangerous offender. (Tr. 39-42). The trial court took into account the fact defendant was a repeat offender not responsive to the justice system. The court was justified in determining that defendant was not likely to respond quickly to rehabilitive treatment given his history. The defendant also contends that the trial court did not take into consideration the defendant's ability to pay when imposing fines. R.C. 2929.14 states in pertinent part: (A) In determining whether to impose a fine for a felony and the amount and method of payment of a fine, the court shall consider *** the ability and the resources of the offender and the nature of the burden that payment of a fine will impose on him. The authority of a trial court to impose a monetary fine is further controlled by R.C. 2925.03(L) which provides: (L) No court shall impose a mandatory fine pursuant to division (H) of this section upon an offender who alleges, in an affidavit filed with the court prior to sentencing, that he is indigent and is unable to pay any mandatory fine imposed pursuant to that division, if the court determines that the offender is an indigent person and is unable to pay the fine. Similarly, it is presumed that the trial court acted in accordance with R.C. 2929.14 from a silent record. State v. Johnson (Nov. 30, 1995), Cuyahoga App. No. 68519, unreported (citing State v. Morgan (1992), 80 Ohio App.3d 150). The fact that the defendant is indigent for the purposes of receiving legal counsel does not necessarily indicate indigency for the purposes of determining ability to pay fines. Id., citing State v. Powell 12 (1992), 78 Ohio App.3d 784. The defendant's ability or inability to pay a retainer fee is not equivalent to his ability to pay a fine over a period of time. Id. Furthermore, a hearing does not have to be conducted before imposing a fine. Id. In the case at bar, defendant bases his claim on the mere fact that there was no evidence in the record that the trial court took into consideration ability to pay before assessing fines. This is not necessary in view of the presumption that is afforded the trial court. The defendant cites State v. Gibson (July 3, 1996), Cuyahoga App. No. 69409, unreported, which concerns an unopposed affidavit of indigency prior to sentencing. This case is not pertinent to the defendant's case. The defendant offered no affidavit at the time of sentencing. Defendant was sentenced on July 6, 1995; his motion for reconsideration was heard on October 4, 1995; it was not until February 5, 1996 that defendant filed an affidavit of indigency. It is clear that the court should consider the impact a fine has on the offender, however, the court is required to consider such factors only if evidence is offered at the sentencing hearing. State v. Burkitt (1993), 89 Ohio App.3d 214, 229. Where the offender does not object at the sentencing hearing to the amount of the fine and does not request an opportunity to demonstrate to the court that he does not have the resources to pay the fine, he waives any objection to the fine on appeal. Id.at 229. See, also, State v. Johnson (1995), 107 Ohio App.3d 723. 13 The decision whether to consider a request to waive a mandatory fine when an affidavit of indigency is not filed until after sentencing is a matter within the trial court's discretion. State v. Mays (1994), 97 Ohio App.3d 406. Therefore, in view of the presumption afforded the trial court and the facts in the case at bar, we find no abuse of discretion in the trial court's imposition of fines. Assignment of Error III is overruled. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DENIED APPELLANT DUE PROCESS OF LAW BY SENTENCING APPELLANT TO A TERM OF IMPRISONMENT WHICH WAS INCONSISTENT WITH THE SENTENCE ANNOUNCED IN OPEN COURT. The State concedes that the sentence of three to fifteen years that was journalized on count one (CR-318328) is inconsistent with the sentence of three to five years and a $2,500 fine that was announced in open court. Therefore, the trial court's sentence is vacated and the matter is remanded for resentencing consistent with this opinion and in conformity with Crim.R. 43(A). Assignment of Error IV is sustained. Judgment affirmed and remanded for entry of correct sentencing as aforesaid. 14 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for these appeals. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and LEO M. SPELLACY, J., CONCUR. JAMES M. PORTER 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 .