COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71697 STATE OF OHIO JOURNAL ENTRY AND OPINION Plaintiff-appellee vs. DAVID GUNDIC Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 13, 1997 CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court, Case No. CR-332209 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. ROBERT A. DIXON, ESQ. Cuyahoga County Prosecutor 1280 W. 3rd Street Suite 100 DANIEL MARGOLIS, ESQ. Cleveland, Ohio 44113 The Justice Center 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 2 KARPINSKI, J.: In this delayed appeal, defendant-appellant David Gundic appeals from his conviction for aggravated assault. The conviction resulted from a guilty plea pursuant to a plea bargain. Defendant was indicted in this case on January 10, 1996, for the felonious assault of Jewel Dial. Three violence specifications accompanied the charge because defendant caused physical harm to the victim during the offense and because he was previously convicted twice for violent offenses. Defendant appeared and entered a plea of not guilty after a capias was issued. Defendant appeared in open court on August 22, 1996 to enter a plea of guilty to a reduced charge pursuant to a plea bargain. The prosecution agreed to amend the charge from felonious assault to the lesser charge of aggravated assault in return for defendant's guilty plea. The transcript of the guilty plea hearing reveals that the trial court fully explained defendant's rights and accepted his plea in compliance with Crim.R. 11(C). Specifically, the prosecutor, defense counsel, and defendant each stated that defendant was entering a voluntary, uncoerced guilty plea. (Tr. 4, 5 and 12). The trial court accepted defendant's guilty plea to the reduced charge and entered judgment and sentence accordingly. Defendant's sole assignment of error in this delayed appeal follows: THE APPELLANT'S PLEA OF GUILTY MUST BE VACATED, AS IT WAS NOT TRULY A VOLUNTARY ACT AND WAS VIOLATIVE OF HIS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW. 3 This assignment lacks merit. Defendant contends the trial court erred in accepting his guilty plea to the reduced charge because it failed to determine whether the plea was voluntarily made. Defendant contends that because he asked to discuss the plea with his attorney during the guilty plea hearing, after defendant indicated he felt stuck, the trial court should have more fully questioned him to determine whether his plea was voluntary. At the outset of the hearing, however, both the prosecutor and retained defense counsel stated that no threats or promises of any kind, other than the reduction in the offense, had been made to induce defendant to enter his guilty plea. Defendant agreed to abandon his claim of self-defense to the charge of feloniously assaulting the female victim. In return, he agreed to plead guilty to the lesser charge of aggravated assault by knowingly causing serious physical harm to her while he was in a sudden fit of rage brought on by serious provocation. During a colloquy with defendant, the trial court explained this agreement in detail. At that point defendant indicated he was stuck and wanted to think about the matter before entering his guilty plea. (Tr. 10- 11). The trial court recessed proceedings to permit defendant to discuss the matter with his counsel. The trial court thereafter reconvened the proceedings and asked defendant whether he had had enough time to complete his discussions with counsel. (Tr. 11). Defendant replied that he had. 4 In addition, the trial court expressly inquired whether anyone had made any threats or promises to induce defendant to plead guilty. Defendant also specifically stated that his guilty plea was voluntary. (Tr. 12). Despite the fact that defendant made no protestations of innocence, the trial court discussed the substance of the charge with defendant. Defendant contended that the victim struck him from behind with her shoe and that he punched her in the face without seeing who she was. The record shows that defendant never moved to withdraw his guilty plea and that the matter proceeded to sentencing on September 26, 1996 as scheduled. Defendant likewise never contested the voluntariness of, or sought to withdraw, his guilty plea at sentencing or any time thereafter in the trial court. Defendant's newly appointed appellate counsel has raised this claim of involuntariness for the first time on appeal. The record does not support this argument. We have recently rejected such claims under similar circumstances and believe they do not warrant any further extended discussion. State v. Hurney (July 31, 1997), Cuyahoga App. No. 71053, unreported at 6-8; and State v. Williams (Sept. 25, 1997), Cuyahoga App. Nos. 70998, 70999 and 71000, unreported at 8-14. Appellate counsel apparently seeks to distinguish such authority on the grounds that defendant paused during the guilty plea hearing to speak with counsel. The trial court granted him an opportunity for this purpose. However, when the hearing resumed, defendant stated he had had sufficient time and was fully satisfied with counsel. 5 Defendant thereafter personally and expressly stated that no promises or threats had been made to induce his guilty plea and that his plea was voluntary. Appellate counsel does not suggest what additional questioning the trial court could have conducted to determine that defendant's plea was in fact voluntary. Asking defendant more than once whether his plea was voluntary would not make his answer any more convincing than when he answered the question the first time. Under the circumstances, defendant has failed to show that the trial court committed any error when accepting his guilty plea to the reduced charge according to the plea bargain. Judgment affirmed. 6 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 Common Pleas Court 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. JAMES D. SWEENEY, C.J., and PORTER, J., CONCUR. DIANE KARPINSKI 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 .