COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71727 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION OZELLA SMITH : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 16, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-319359 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: ARTHUR A. ELKINS (#0061094) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA J. SMITH (#0059621) 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant Ozella Smith ( appellant ) appeals from her plea of guilty to murder. 2 Appellant assigns the following error for review: . THE APPELLANT DID NOT ENTER A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER OF HER TRIAL RIGHTS, THUS RENDERING HER SUBSEQUENT PLEA INVALID. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On February 7, 1995, appellant was indicted for one count of aggravated murder in violation of R.C. 2903.01(A), one count of aggravated murder in violation of R.C. 2903.01(B), one count of kidnapping in violation of R.C. 2905.01, and one count of aggravated robbery in violation of R.C. 2911.01. All of the counts contained a firearm specification. Appellant entered a plea of not guilty to the indictment. On August 23, 1995, appellant appeared before the trial court pursuant to a plea agreement. The prosecutor stated appellant had been charged in a four-count indictment. The prosecutor stated the two counts of aggravated murder both called for life imprisonment. Count one of the indictment would be amended to a charge of murder in violation of R.C. 2903.02. The firearm specification would be deleted. The remaining three counts would be nolled. Defense counsel stated he had explained to appellant all of her constitutional rights as well as the potential penalties of the offenses as indicted. The trial court then engaged the defendant in a dialogue. The trial court stated: If you plead guilty to the charges as 3 stated by the prosecutor, count one becomes murder. It deletes the firearm and the prior calculation and design, and therefore, it becomes a nonprobationable fifteen years to life. In other words, that means the minimum is fifteen years, the maximum is life. And once you plead, the Court will impose that. It also, however, means that you avoid being in jeopardy on the other counts, the other three counts, which could have ended up ten to twenty-five on two of them, and could have ended up with an additional life term on the other. (Tr. 8). The trial court went on to explain appellant's constitutional rights to her as follows in part: In addition, you have a right to be at a trial, to have a trial with either a judge or a jury on every count. You have a right to cross-examine all the witnesses against you. You have a right to hear what they say and confront them in court. You have a right to bring any witnesses here that you think would help you. Okay? You have a right to make a statement, or not make statement in court to testify. You don't have to testify. They have to prove it against you beyond a reasonable doubt, and you don't have to prove a thing. (Tr. 9.) Appellant then entered a plea of guilty to a charge of murder. The trial court imposed a sentence of fifteen years to life. This court granted appellant leave to file a delayed appeal. II. In her assignment of error, appellant contends her guilty plea was not knowingly, intelligently, or voluntarily made for two different reasons. Firstly, appellant posits the trial court did not adequately explain her right against self-incrimination as the 4 trial court did not inform appellant the state could not comment on her failure to testify or infer her guilt to the jury if she chose not to testify in her defense. Secondly, appellant submits the trial court misled appellant as to the possible sentence she could face if convicted on all the counts of the indictment. The trial court essentially stated that appellant could face a life term for each of the aggravated murder charges when, in fact, she could have only been sentenced to one life term as both convictions would have been merged upon sentencing. 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. The underlying purpose of Crim.R. 11(C) is to convey certain information to the defendant in order to allow him or her to make a voluntary and intelligent decision of whether or not to plead 5 guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480. Two separate standards are applied when a reviewing court considers a claim that a trial court did not satisfy its duty under Crim.R. 11. State v. Anderson (1995), 108 Ohio App.3d 5, 8-9. With respect to constitutional rights, a trial court must strictly comply with the dictates of Crim.R. 11(C). State v. Colbert (1991), 71 Ohio App.3d 734. However, a trial court need not use the exact language found in that rule when informing a defendant of his constitutional rights. Rather, a trial court must explain those rights in a manner reasonably intelligible to the defendant. Ballard, supra, at paragraph two of the syllabus. The privilege against compulsory self-incrimination is a constitutional right guaranteed by the United States Constitution. Boykin v. Alabama (1969), 395 U.S. 238, 243. For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required. Rather the trial court must substantially comply provided no prejudicial effect occurs before a guilty plea is accepted. State v. Stewart (1977), 51 Ohio St.2d 86. Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implication of his plea and the rights he is waiving. State v. Nero (1990), 56 Ohio St.3d 106, 108. Appellant argues the trial court did not substantially comply with Crim.R. 11(C)(2)(c) with its explanation of her right against self-incrimination. Appellant points out the trial court did not state that the prosecutor could not comment on her failure to 6 testify or infer guilt based upon her failure to testify in her own defense. The trial court informed appellant that she had the right to not testify and that the state had to prove she was guilty. A trial court must inform a defendant of her constitutional rights in a manner reasonably intelligible to the defendant. Ballard, supra, at 480. A trial court must ensure that a criminal defendant realizes what he or she is giving up by entering a plea of guilty. The standard is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford (1970), 400 U.S. 25, 31. The trial court stated appellant did not have to testify. Appellant's attorney had explained appellant's constitutional rights to her prior to her appearance in court. Even though a constitutional right is involved requiring a heightened standard of review, an appellate court may still look to the totality of the circumstances when considering the sufficiency of a plea. A defendant may learn of information from other sources than the trial court, including his or her attorney. State v. DeArmond (1995), 108 Ohio App.3d 239. Appellant only argues the trial court failed to say that the state could not comment on her failure to testify, not that she did not understand that right. The trial court's explanation of this constitutional right was adequate, especially coupled with the fact that appellant's attorney had explained the same rights to appellant before she entered her plea. Appellant next asserts the trial court wrongly stated the 7 sentence she could have received if found guilty for the offenses charged in the indictment. Appellant would not have been sentenced to two life terms. The aggravated murder counts would have been merged upon sentencing as only one victim was involved. Although Crim.R. 11(C) states that a defendant must be informed of the maximum penalty involved, that refers to the penalty for the crime for which the plea is offered. State v. Johnson(1988), 40 Ohio St.3d 130. In State v. Xie (1992), 62 Ohio St.3d 521, the defendant sought to withdraw his plea of guilty prior to sentencing because his attorneys had told him he would not be eligible for parole for a minimum of twenty-three years if found guilty of aggravated murder when he would have been eligible for parole in seventeen years. Xie argued he would have proceeded to trial if he had not received this misinformation. The court upheld the trial court's ruling that appellant would have entered the plea of guilty even if he received the correct advice. Although Xie involved an ineffective assistance of counsel review, the reasoning is applicable to the instant case. Appellant has not argued she would have proceeded to trial if the trial court had stated the correct possible penalties for the offenses for which appellant was indicted. The test is whether the plea would otherwise have been made. State v. Stewart (1977), 51 Ohio St.2d 86, 93. Further, appellant has failed to demonstrate she was specifically prejudiced by the trial court's erroneous statement. A judgment of conviction may not be reversed unless it affirmatively appears from the record that the defendant was 8 prejudiced by the error. Johnson, supra at 134. Appellant pled guilty to one count of murder for which she received a sentence of fifteen years to life. Appellant faced a much more severe sentence if she were convicted of the indicted charges. Appellant failed to show she would not have made the plea if she had received the correct information. Appellant's assignment of error lacks merit. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. 9 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 appeal 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. DAVID T. MATIA, P.J. and JAMES M. PORTER, J. CONCUR. LEO M. SPELLACY Judge N.B. This 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(B) 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 .