COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71857 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) JIMMY SPRADLIN ) ) Defendant-Appellant ) Date of Announcement of Decision OCTOBER 9, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-314701 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES KEVIN M. SPELLACY, ESQ. Cuyahoga County Prosecutor McGinty, Gibbons & Hilow ARTHUR A. ELKINS, Assistant Co., L.P.A. Prosecuting Attorney 1375 East Ninth Street 1200 Ontario Street Suite 1920 Cleveland, Ohio 44113 Cleveland, Ohio 44114 2 JAMES M. PORTER, P.J.: Defendant-appellant Jimmy Spradlin appeals from his convictions following a guilty plea for attempted murder (R.C. 2923.02/2903.02) with a firearm specification and robbery (R.C. 2911.01). Defendant contends his plea was not voluntary or willingly made because the court failed to advise him that he was waiving his right to have the State prove its case beyond a reasonable doubt and he entered the plea on the judge's intervention to please his parents. We find no merit to the appeal and affirm. Defendant, a 17 year old , was bound over and indicted for his involvement in the assault on a gas station attendant and hold-up in which the victim was shot eight times, but survived. On November 2, 1994, a pre-trial was held at which defendant eventually entered his plea. The prosecuting attorney explained the charges and penalties involved and the agreed plea bargain. Prior to accepting defendant's plea, the court in colloquy with defendant determined that defendant was 17; had dropped out of high school in the 10thgrade; lived with his parents; worked part time; understood why he was in court; and had talked to his parents and attorney about the matters. The court explained the nature of the specific charges, the maximum penalties and the rights he was waiving by entering his plea, to wit: right to jury trial, to be represented by an attorney, to cross-examine and subpoena witnesses, privilege against self incrimination and that he was giving up all these rights by pleading. When finished, the court 3 asked if defendant understood what his rights were and defendant said he believed he understood them. (Tr. 23-35). When asked if he was entering his plea of his own free will he answered: I'm doing what my parents want me to do. The following colloquy then transpired. THE COURT: All right. I know your parents want you to do it, but is it what you want to do? THE DEFENDANT: Yes your Honor. THE COURT: All right. So I can satisfy myself based on your statements, having discussed it with your parents, having discussed it with your lawyer, this is what you are choosing to do of your own free will? THE DEFENDANT: Yes, your Honor. THE COURT: All right. And that is true with respect to the plea to attempted murder, to the firearm specification in the first count of the indictment, and with respect to the crime of robbery in the second count of the indictment; right? THE DEFENDANT: Right. THE COURT: And this is done with your understanding of the nature of the charges involved; correct? THE DEFENDANT: Correct, your Honor. THE COURT: And it's done with your understanding of the nature of the maximum penalty that can be imposed; correct? THE DEFENDANT: Correct, your Honor. (Tr. at 35-36). The court then found that the pleas entered by Mr. Spradlin in this case are knowingly, intelligently and voluntarily entered. (Tr. at 37). Defendant was sentenced according to the plea 4 bargain. This Court allowed defendant's motion for delayed appeal and the matter is before this Court on the merits. We will address Assignments of Error I and II together as they both address the issue of voluntariness of the plea. I. DEFENDANT'S PLEA WAS NOT ENTERED VOLUNTARILY, AS THE COURT FAILED TO ADHERE TO THE PROVISIONS OF CRIMINAL RULE 11. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ACCEPTING A GUILTY PLEA THAT WAS NOT VOLUNTARY, AND BY INTERVENING TO CONVINCE DEFENDANT THAT HE WAS MAKING A VOLUNTARY PLEA. Defendant's initial contention is that the trial court failed to advise defendant that one of the rights he was waiving was the State's obligation to prove the charge against him beyond a reasonable doubt. Defendant claims his plea was not willingly and voluntarily made for that reason. We find no merit to this contention. Defendant raises herein the same issue that was before this Court in State v. Scott (1996), 113 Ohio App.3d 401, i.e., whether the failure to advise defendant of the State's obligation to prove defendant guilty beyond a reasonable doubt was fatal to the plea. We held in Scott it was not and stated: While it is undisputed that the trial judge did not inform the appellant that the state is required to prove his guilt beyond a reasonable doubt, as Crim. R. 11(C)(2)(c) requires, the Ohio Supreme Court stated in State v. Nero, supra, that "(l)iteral compliance with Crim.R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. Stewart, supra." Id. at 108. 5 Substantial compliance allows the trial court to infer from the totality of the circumstances that the defendant understood the charges against him. State v. Rainey (1982), 3 Ohio App.3d 441, at 442. See, also, State v. Nero, supra, at 108. According to Boykin v. Alabama (1969), 395 U.S. 238, a court in accepting a guilty plea must inform the defendant of certain constitutional rights. These constitutional rights are: the privilege against compulsory self incrimination; the right to a jury trial; and the right to confront accusers. Id. at 243. The Ohio Supreme Court in State v. Stewart (1977), 51 Ohio St.2d 86, 93, held that "[t]he absence of a ritualistic incantation of an admonishment which is not constitutionally guaranteed does not establish grounds for vacating the plea." Thus, while the trial court is required by Crim. R. 11(C)(2)(c) to inform the defendant of his right to have the State prove his guilt beyond a reasonable doubt, this is not required by Boykin, as is it is not a constitutional right, but a statutory right. The Ohio Supreme Court recognized this in State v. Sturm (1981), 66 Ohio St.2d 483, 484, fn. 2: Appellant also argues that he was not informed of his right to have the state prove his guilt beyond a reasonable doubt. While a trial court is required by Crim.R. 11(C) to inform a defendant of his right, it is not required by Boykin v. Alabama (1969), 395 U.S. 238. See Id. at 243. Therefore, such a failure would be tested by this court's cases interpreting Crim. R. 11(C). See, e.g. State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163. See, also, State v. Binion (April 18, 1996), Cuyahoga App. No. 69336, unreported (failure to inform defendant of his right to have the State prove his guilt beyond a reasonable doubt not prejudicial); State v. McGhee (April 21, 1994), Cuyahoga App. No. 65214,65215, 65216, unreported (court substantially complied with Crim.R. 11 requirements regarding defendant's right to have the State prove his guilt beyond a reasonable doubt); State v. Agresti (May 27, 1993), Cuyahoga App. 6 No. 64174, unreported (court not required by Boykin or Sturm to inform defendant of right to have State prove his guilt beyond a reasonable doubt; there was no constitutional error and since there was substantial compliance, any error was harmless). Id. at 406-407. A review of the entire transcript indicates that the trial court substantially complied with the requirements of Crim.R. 11 and that defendant willingly and voluntarily entered his plea of guilty to the amended charges. Defendant's claim that he was coerced into his plea and only did it to please his parents is likewise without merit. The dialogue cited above makes clear that the defendant wished as well to enter the plea. The trial court gave defendant every opportunity to change his mind or withdraw from the pending plea bargain, but defendant failed to do so. The defendant offered several protestations of innocence and the trial court properly questioned him to determine whether he had made a rational calculation to plead guilty notwithstanding his belief that he was innocent pursuant to North Carolina v. Alford (1971), 400 U.S. 25. In the instant case, the record affirmatively discloses that (1) defendant's guilty plea was not the result of coercion, deception, or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the plea; (4) defendant's plea was made with the understanding of the nature of the charges; and (5) the plea was motivated by a desire to seek a lesser penalty or by the 7 fear of the consequences of a jury trial, and that any such desire or fear on defendant's part was intelligent in the sense that it was a rational response to the state of the evidence in the case. State v. Piacella (1971) 27 Ohio St.2d 92, 96; see, also, State v. Padgett (1990), 67 Ohio App.3d 332, 339. Finally, the record in this case is clear that defendant's motivation to garner a reduced sentence was not the act of an irrational person, or a person coerced to undertake an action against his will. It was a calculated and willful act of a person seeking self-benefit. This Court in State v. Holder (1994), 97 Ohio App.3d 486, 493-494, stated: Since a Crim.R. 11 hearing requires the trial court's examination of an accused's free will to waive constitutional and statutory rights, an accused who knows he is innocent and professes his innocence but voluntarily and knowingly pleads guilty to that offense does so at his own peril, for the law can only go so far to protect the innocent and even the guilty. The law cannot protect an innocent man with sound mind who pleads guilty to the offense he is charged with committing, when he knows he did not have to so plead. There was no error in the trial court's acceptance of defendant's plea. Assignments of Error I and II are overruled. Judgment affirmed. 8 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 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. DYKE, J., and ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING 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 .