COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71897 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION LAVELLE HARRIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-289536 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD F. FERAN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN DOLATOWSKI ROBERT B. CAMPBELL East Brunswick Professional Bldg. 3864 Center Road - Suite A9 Brunswick, Ohio 44212 -2- O'DONNELL, J.: Alleging the trial court failed to advise him that the offense of drug trafficking was non-probationable and to determine that his plea was knowingly, intelligently and voluntarily entered and that he understood the nature of the charge, Lavelle Harris filed this delayed appeal challenging his April 12, 1993 conviction for violating R.C. 2925.03(A)(6), drug trafficking. After carefully reviewing these allegations, we have determined they are without merit, and therefore, for the reasons which follow, we affirm the judgment of the trial court. The record in the case before us reveals that on November 12, 1992, the Cuyahoga County Grand Jury returned a five count indictment against Harris and his co-defendant Robin Turner, alleging possession of cocaine in an amount equal to or exceeding three times the bulk amount, preparation to ship cocaine, preparation to ship marijuana, unlawful possession of a dangerous ordnance, a sawed-off shotgun, and possession of criminal tools, each of which contained a firearm specification. Subsequently, on April 6, 1996, Harris pled guilty to possession of three times the bulk amount of cocaine as charged in the first count and the state agreed to delete the firearm specification and nolle all remaining counts. The court accepted his plea and sentenced him to a term of three actual to fifteen years. On this delayed appeal, Harris assigns three errors for our review, which state: -3- I. THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE DEFENDANT-APPELLANT THAT A VIOLATION OF R.C. 2925.03(A)(6) WAS A NON-PROBATIONABLE OFFENSE. II. THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT- APPELLANT'S GUILTY PLEA WHEN DEFENDANT-APPELLANT DID NOT UNDERSTAND THE NATURE OF THE CHARGE. III. THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT- APPELLANT'S GUILTY PLEA WHEN SAID PLEA WAS NOT KNOWING, INTELLIGENT, AND VOLUNTARY. Harris essentially challenges the validity of his guilty plea arguing that he did not enter it knowingly, intelligently, or voluntarily because the trial court did not inform him that he pled to a non-probationable offense, and did not determine he understood the nature of the charge. The state contends, however, that Harris' guilty plea should not be vacated because the trial court complied with the provisions of Crim. R. 11(C). The issue then presented for our determination is whether the trial court erred by accepting Harris' guilty plea in this case. Crim. R. 11(C) states, in part: (2) In felony cases the court***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. Ohio Crim. R. 11(C) was adopted in order to facilitate a more accurate determination of the voluntariness of a defendant's plea by ensuring an adequate record for review. State v. Nero (1990), 56 Ohio St.3d 106, 107. A reviewing court will not vacate a guilty plea if it determines that the trial court substantially complied -4- with Crim. R. 11(C). Id. at 108. Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Id. The Ohio Supreme Court in Nero, supra, held at p. 108-109: ***where the totality of the circumstances indicates that the defendant knew he was ineligible for probation and was not prejudiced by the trial court's failure to comply with Crim. R. 11(C)(2)(a), the trial court's acceptance of the defendant's guilty plea to the nonprobationable crime of rape without personally advising the defendant that he was not eligible for probation constitutes substantial compliance with Crim. R. 11. A review of the transcript of the plea proceedings in this case reveals that the prosecutor stated at the outset that the first count was non-probationable when he related: Now, this is a non-aggravated felony of the second degree and carries with it a definite sentence, a minimum sentence, of two, three, four, five years up to the maximum of fifteen years with three years actual incarceration, Judge. A plea of guilty to this count is non-probationable. (Tr. 8) (Emphasis added.) Harris' defense counsel understood this and stated: Your Honor, everything the county prosecutor said is true. (Tr. 10). Finally, when the judge spoke directly with Harris, he stated: THE COURT: The charge of an aggravated drug trafficking, in violation of 2925.03(A)(6), to which you are each desirous of pleading guilty to, is an aggravated felony of the second degree - - non-aggravated felony of the second degree punishable by a possible term of incarcerationof two, three, four, five to fifteen years together with an actual mandatory term of three years and a mandatory fine of $7,500, as well as discretionary fine of up to $7,500. Do you each understand the nature of that charge and the penalty as I outlined it, Mr. Harris? DEFENDANT HARRIS: Yes, Your Honor. (Tr. 15) (Emphasis added.) -5- Thus, the record before us suggests that Harris knew he could not receive probation because the prosecutor used the term non- probationable when describing the plea and Harris' defense counsel acknowledged that statement. Further, the trial court not only personally informed Harris that the term of incarceration for drug trafficking was actual and mandatory, but also advised Harris of the nature of this charge and ascertained that Harris understood both the charge and the penalty. We conclude, therefore, that the provisions of Crim.R. 11(C) have been satisfied, in that, Harris understood the nature of the charge and penalty. Accordingly, the assignments of error are overruled and the judgment is affirmed. 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. PORTER, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .