COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71736 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TROY SHELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 30, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-328,674 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor ERIKA RITT, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: THOMAS M. HORWITZ Attorney at Law Landmark Office Towers Midland Building, #1880 Cleveland, Ohio 44ll5 TIMOTHY E. McMONAGLE, J.: 2 Defendant-appellant, Troy Shell ( appellant ), appeals the judgment of the Cuyahoga County Common Pleas Court that accepted his plea of guilty and convicted him of robbery while using a gun and sentenced him to a non-probationable term of incarceration. For the reasons that follow, we affirm. The record reflects that appellant originally entered a plea of not guilty to a two-count indictment charging appellant with aggravated robbery in violation of R.C. 2911.01 and having a weapon while under disability in violation of R.C. 2923.13. The aggravated robbery charge included firearm, violence and two prior felony conviction specifications, while the weapon charge included firearm and violence specifications. Prior to trial, appellant entered into a plea agreement with the state wherein he pled guilty to an amended indictment charging him with robbery in violation of R.C. 2911.02. In accordance with the agreement, all specifications relative to count one, as well as the second count of the indictment, having a weapon while under disability and its specifications, were dismissed; however, the indictment, as amended, continued to include language that the offense was committed with a gun. In explaining the proposed plea agreement to appellant and the court prior to appellant's acceptance, the prosecutor stated as follows: THE STATE: *** What I've indicated to [defense counsel] this morning is for purposes of a plea, that the State would be willing to offer one count of robbery on Case 328674, which would carry with it the reference to a firearm in the body, however, 3 we would delete the specifications referencing the firearm, along with both specifications referencing the prior convictions for aggravated felonies, thereby rendering the robbery count a non-probationable three, four, four five, six, seven or eight years to a maximum fifteen-year period. We would be willing then to dismiss the second count, having a weapon while under disability ***. The appellant was given the rest of the day to consider the state's offer and, upon reconvening the following day, the plea agreement was again restated in open court as follows: THE STATE: *** At this point the State would recommend to the Court an amendment of the first count of this particular case number to reflect a violation of the robbery statute, 2911.02, keeping intact the reference to the firearm in the body of the indictment, however, asking the Court to delete all the specifications, *** That would render this amended count an aggravated felony of the second degree, carrying with it the potential, on the minimum side, for either three, four, five, six, seven, eight years, to a maximum period of fifteen years incarceration and up to a $7,500 fine. It's my understanding in that particular case that this defendant's going to withdraw his formerly entered not guilty plea to the amended first count, enter a plea of guilty to the amended count, and if 4 such a plea is forthcoming, the State would then recommend nolleing the second count, having a weapon while under a disability. When the trial court inquired of the prosecutor whether the indictment, as amended, carried a non-probationable sentence, the prosecutor answered in the affirmative. In questioning the appellant, the court stated: THE COURT: I trust you understand you're pleading guilty to a robbery charge with a gun. *** MR. SHELL: Yes. THE COURT: do you understand that? MR. SHELL: Yes, sir. THE COURT: This robbery charge with the gun is a non-probationable offense; do you understand that? MR. SHELL: Yes, sir. The court then explained the constitutional rights that appellant would be waiving in exchange for his guilty plea. In accepting appellant's plea, the court stated in its journal entry: Thereupon, said defendant retracts his/her former plea of not guilty heretofore entered, and for plea to said indictment says he/she is guilty of robbery with gun, ORC 2911.01 Agg -2 as amended in count one, which plea/pleas on the recommendation of the prosecuting attorney is/are accepted by the court (non-probation- able) on recommendation of prosecutor count 2 nolled. Thereafter, the court sentenced appellant to the Lorain Correctional Institution for a minimum of five to a maximum of fifteen years. It is from this conviction and sentence that 5 appellant timely appeals, assigning the following errors for our review: I. THE TRIAL COURT ERRED BY SENTENCING DEFENDANT FOR A CRIME NOT RECOGNIZED BY THE STATE OF OHIO. II. THE TRIAL COURT ERRED IN ACCEPTING A PLEA WHICH WAS NEITHER KNOWINGLY, WILLINGLY NOR INTELLIGENTLY MADE IN VIOLATION OF CRIMINAL RULE 11 AND DEFENDANT'S CONSTITUTIONAL RIGHTS. III. THE TRIAL COURT ERRED IN VIOLATION OF CRIMINAL RULE 11 BY FAILING TO CONDUCT A MEANINGFUL COLLOQUY REGARDING DEFENDANT'S WAIVER OF HIS CONSTITUTIONAL RIGHTS. IV. THE TRIAL COURT ERRED IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL AND CRIMINAL RULE 11 RIGHTS BY FAILING TO DETERMINE WHETHER HE MADE A RATIONAL CALCULATION THAT IT WAS IN HIS BEST INTEREST TO ACCEPT THE PLEA BARGAIN. V. THE TRIAL COURT ERRED IN OVERZEALOUSLY PARTICIPATINGIN THE PLEA NEGOTIATIONS BY MAKING COERCIVE AND THREATENING STATEMENTS WHICH INDUCED DEFENDANT TO ACCEPT THE PLEA AGAINST HIS WISHES AND DESIRES AND IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. I. Appellant's first and second assignments of error are related and challenge the trial court's acceptance of his guilty plea to an offense that, he argues, is not cognizable by the State of Ohio. The state, on the other hand, maintains that appellant intelligentlyand voluntarily pled to and was convicted of robbery in violation of R.C. 2911.02 and sentenced accordingly. 6 In determining whether a guilty plea is voluntarily, intelligently and knowingly entered, a reviewing court must determine whether the trial court substantially complied with the requirements of Crim.R. 11. State v. Carter (1979), 60 Ohio St.2d 34, 38; State v. Billups (1979), 57 Ohio St.2d 31; State v. Caplinger (1995), 105 Ohio App.3d 567, 572; State v. Calvillo (1991), 76 Ohio App.3d 714, 719. This rule provides, in part: (2) In felony cases the court may refuse to accept a plea of guilty ***, 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 ***, 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. 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; State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. The underlying purpose of Crim.R. 11 is to 7 convey to the criminal defendant sufficient information that will enable him to make a voluntary and intelligent decision whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480. A defendant who challenges his guilty plea must show that the lack of compliance with this rule had a prejudicial effect. Stewart, 51 Ohio St.2d at 93. The test for prejudice is whether the plea would have otherwise been made. Nero, 56 Ohio St.3d at 108. The record reflects that appellant pled guilty to the lesser offense of robbery in violation of R.C. 2911.02, an aggravated felony of the second degree. See R.C. 2911.02(B). According to the felony sentencing guidelines governed by R.C. 2929.11, appellant had the potential to be sentenced to a minimum term of actual incarceration of three, four, five, six, seven or eight years up to a maximum of fifteen years. See R.C. 2929.11(B)(2)(a). Thus, the trial court's action in sentencing appellant to a minimum of five years to a maximum of fifteen years was in compliance with the statutory sentencing guidelines. Nonetheless, appellant argues that his conviction should be vacated because robbery with a gun, in actuality, is aggravated robbery in violation of R.C. 2911.01, an offense that was not part of the plea agreement. While we agree that the trial court was incorrect in characterizing this offense as robbery with a gun, we do not find that appellant was prejudiced by this mischaracterization. As originally indicted, the offense of aggravated robbery carries a lengthier term of incarceration and, by its very terms, is non-probationable. When considering that the weapon offense and 8 multiple specifications were to be dismissed in exchange for appellant's plea to robbery, albeit with a gun, appellant has not shown that he would not have otherwise entered the plea. To reiterate, we are not attempting to justify the trial court's mischaracterization of this offense as robbery with a gun. To the contrary, the trial court's continued use of this misnomer is not only inaccurate but troubling. Nonetheless, the trial court's apparent purpose was to characterize the offense in such a manner so appellant would have the advantage of being convicted and sentenced to a lesser offense that carries a correspondingly lesser period of incarceration yet to continue to make the offense one that would be non-probationable. See R.C. 2951.02(F)(3); State v. Bistarkey (1996), 75 Ohio St.3d 7 (firearm specification was dismissed pursuant to a negotiated plea but offense to which offender pled was non-probationable because it was undisputed that offender committed the crime with a firearm); State v. Koss (1990), 49 Ohio St.3d 213, 219-220 (despite acquittal on gun specification charge, probation was inappropriate where evi- dence established that the victim died of a gunshot wound to head); State v. Ervin (1994), 93 Ohio App.3d 178, 179-180 (not guilty verdict on firearm specification did not preclude trial court from finding criminal defendant ineligible for probation); State v. Fisher(1985), 26 Ohio App.3d 197, 198 (offense was non-probation- able where pre-sentence investigation disclosed that firearm was used in commission of crime); see, also, State v. Mitchell (May 1, 1997), Cuyahoga App. No. 71155, unreported at 5-7; State v. Pope 9 (Sept.2, 1993), Cuyahoga App. No. 63606, unreported. Consequently, we do not find, nor has appellant demonstrated, that he was prejudiced in any way by this mischaracterization. Toward this end, appellant was sentenced to a term of incarceration that is consistent with the offense of robbery in violation of R.C. 2911.02, an aggravated felony of the second degree, and made non- probationable under R.C. 2951.02(F)(3). Accordingly, appellant's first and second assignments of error are not well taken. II. In his third assignment of error, appellant contends that his guilty plea was not made in compliance with Crim.R. 11 because the trial court failed to engage appellant in a meaningful colloquy so that he understood the constitutional rights that he was waiving. Appellant concedes that the trial court explained his constitutional rights to him, but he argues, nonetheless, that his plea violated the dictates of Crim.R. 11 because each right was not individually explained as recommended in State v. Ballard (1981), 66 Ohio St.2d 473, 479. He complains that grouping these rights in narrative fashion made it difficult for him to fully understand precisely what rights he was waiving. While explaining each individual right separately as suggested by the Ballard court may be the more appropriate practice and should be encouraged, the failure to implement such a practice does not invalidate an otherwise knowingly and intelligently entered 10 plea. Id.; State v. McGowan (Oct. 3, 1996), Cuyahoga App. No. 68971, unreported at 11-12; State v. Hunter (Jan. 25, 1996), Cuyahoga App. Nos. 68447-68451 and 69306, unreported at 5; see, also, State v. Wishum (Aug. 22, 1997), Greene App. No. 96-CA-103, unreported at 8. Of critical importance is whether appellant's plea was knowingly and intelligently entered. In this regard, we find that his plea was so entered. The trial court, over the course of two days, painstakingly explained the nature and consequences of the charges as originally indicted and as amended. Appellant was given time to think about the plea agreement and discuss it with his attorney and his family. Prior to accepting his plea, the trial court did recite appellant's constitutional rights, albeit not individually as suggested by the Ballard court. Looking at the totality of the circumstances, however, we find that appellant's plea was knowingly and intelligently entered. Consequently, it was not error for the trial court to inform appellant of the constitutional rights he was waiving by presenting them in narrative form rather than individually. Accordingly, appellant's third assignment of error is not well taken. IV. In his fourth assignment of error, appellant contends that the trial court's acceptance of his guilty plea was violative of Crim.R. 11 because the court did not determine whether the plea was in the appellant's best interest. Specifically, appellant com- 11 plains that he maintained his innocence and it was therefore incumbent upon the trial court to inquire whether such a plea was in his best interest. In North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, the United States Supreme Court recognized that a plea of guilty may be accepted despite protestations of innocence provided that voluntariness of the plea is established in the record. When a criminal defendant professes his innocence when entering a guilty plea, the trial court should inquire as to whether the plea is based upon a rational calculation that a factual basis exists for such a plea and that it is in the defendant's best interest. State v. Padgett (1990), 67 Ohio App.3d 332, 338; see, also, Alford, 400 U.S. at 38, 92 S.Ct. at 167-168, fn. 10. In order to constitute an Alford plea, however, it is necessary that the protestation of innocence accompany the defendant's guilty plea. State v. Hurney (July 31, 1997), Cuyahoga App. No. 71053, unreported at 6-7; State v. Najeeullah (Oct. 3, 1996), Cuyahoga App. No. 70126, unreported at 3. Moreover, where the defendant's statements refute his claims of innocence, any protestations are correspondingly negated and do not rise to the level of an Alford plea. See State v. Wright (Mar. 23, 1995), Cuyahoga App. No. 66975, unreported at 2-3 (criminal defendant's statements that he was not involved in shooting and did not have a gun were refuted by later statement during hearing that he didn't mean to shoot ). Here, appellant relies on an isolated statement made the day before the plea hearing wherein he stated that he didn't do this 12 crime. Yet, after being given the rest of the day to consider the state's offer, appellant returned to the trial court and engaged in a lengthy colloquy with the trial judge. In response to the charges against him after the explanation of his constitutional rights, appellant pled guilty, without any corresponding protestation of innocence. Appellant, unlike the defendants in Alford or Padgett, did not maintain his innocence at the time he entered his plea during the plea hearing. When asked if he had anything to say after the trial court's acceptance of his plea, appellant responded that he was very sorry for this happening and that he was going to try and change everything. Even if we were to find that appellant's statement the day before was a valid protestation of innocence, these latter statements made during the plea hearing refute his claims of alleged innocence and do not actually constitute a valid Alford plea. Consequently, it was not necessary for the trial court to determine whether appellant's decision to plead guilty was rationally calculated to be in his best interest. Accordingly, appellant's fourth assignment of error is not well taken. V. In his last assignment of error, appellant contends his plea was coerced due to the trial judge's participation. Specifically, he argues that despite his protestation of innocence, the judge informed appellant of the possibility of a lengthy prison term 13 without telling him of the state's burden of proof. He further contends that the judge threatened and intimidated him by implying that he was lying. In assessing the voluntariness of a plea, a reviewing court must carefully scrutinize a trial judge's participation. State v. Byrd(1980), 63 Ohio St.2d 288, 293. If the judge's participation rises to a level that leads a criminal defendant to believe that he could not get a fair trial or that the judge would be biased against him, the plea is involuntary and void. Id. at 293-294; see, also, State v. Walker (1989), 61 Ohio App.3d 768, 770; see, also, State v. Kirby (Oct. 25, 1990), Cuyahoga App. No. 59234, unreported at 2-3. Contrary to appellant's arguments, the record fails to demonstrate that the trial judge's participation could have led appellant to believe that he could not get a fair trial. We find that the judge's involvement in this case was limited to explaining the factors he considered in imposing a sentence and advising appellant to make a decision after discussing his options carefully with his family and his attorney. The judge did not comment on the strength of the state's case nor convey in any manner that trial would be futile. On the contrary, the judge stated that he was perfectly willing to proceed to trial and was capable of presuming appellant's innocence. Nor does the record demonstrate that the judge threatened appellant or that he intimated that appellant was less than honest. The judge's comment to appellant to be truthful with his attorney 14 was more than likely cautionary in nature and did not support, as appellant argued, that the judge was biased against the appellant. Also contrary to appellant's arguments, appellant was informed of the state's burden of proof, and the prison terms conveyed to appellant were those statutorily authorized. Furthermore, of significant importance is the fact that appellant was given until the following morning to consider the state's offer before making a decision. See State v. Oden (Sept. 22, 1994), Cuyahoga App. No. 65680, unreported at 2; State v. Saleem (Oct. 31, 1991), Cuyahoga App. Nos. 59237, 59238, unreported at 2-3. Looking at the totality of the circumstances, it cannot be said that the trial judge's level of participation left appellant with the belief that he had no choice but to enter a plea of guilty. Accordingly, appellant's fifth assignment of error is not well taken. Judgment affirmed. 15 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 Cuyahoga County 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. DIANE KARPINSKI, P.J. and KENNETH A. ROCCO, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 decison 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 .