COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71904 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) LUTHER BURKS ) ) Defendant-Appellant ) Date of Announcement of Decision NOVEMBER 13, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. CR-313266 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES ROBERT R. CLARICO, ESQ. Cuyahoga County Prosecutor The Brownhoist Building GAIL DENISE BAKER, Assistant 4403 St. Clair Avenue Prosecuting Attorney Cleveland, Ohio 44103 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, P.J.: Defendant-appellant Luther Burks appeals from his convictions following a guilty plea pursuant to a plea agreement whereby he pled to attempted rape (R.C. 2907.02/2923.02) and attempted felonious sexual penetration (R.C. 2907.12/2923.02) of a minor female. On appeal, defendant contends the trial court did not substantially comply with Crim.R. 11 because it accepted the guilty plea without determining that defendant understood the nature of the charges against him. The matter is before us on the trial court's denial of defendant's petition for post conviction relief. We find no merit to the appeal and affirm. Defendant's sole assignment of error states as follows: I. THE TRIAL COURT DID NOT SUBSTANTIALLY COMPLY WITH CRIM.R. 11 WHEN IT ACCEPTED APPELLANT'S GUILTY PLEA WITHOUT DETERMINING THAT HE UNDERSTOOD THE NATURE OF THE CHARGES. Defendant's argument that the trial court did not apprise him of the nature of the charges to which he was pleading is not dehors the record and therefore should have been raised in a direct appeal not on post-conviction. State v. Brooks (Oct. 31, 1991), Cuyahoga App. No. 59724, unreported at 3. It is well established that post- conviction petitions are not appropriate substitutes for direct appeals. State v. Nichols (1984), 11 Ohio St.3d 40, 42. Nevertheless, we find that the defendant's plea was voluntarily, knowingly and intelligently entered. In State v. Scott (1996), 113 Ohio App.3d 401, 403, we recently stated the principles to be applied on a challenge to Crim.R. 11 procedures: 3 When a trial court or appellate court is reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim.R. 11 have been followed. State v. Kelley (1991), 57 Ohio St.3d 127, 128. Crim. R.11(C) states: (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 of 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 taking of a plea will be affirmed on appeal so long as the reviewing court determines that the trial court substantially complied with the requirements of Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 87. "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. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligentlyand voluntarily made must show a prejudicial effect. Id. 4 Defendant argues that his plea was not knowingly and voluntarily made because the court did not explain the nature of the charges against him. It is not necessary that the judge explain the elements of each of the offenses, or even ask the defendant specifically whether he understands each of the charges. In State v. Rainey (1982), 3 Ohio App.3d 441, 442, the court held as follows: In order for a trial court to determine that a defendant is making a plea with an understanding of the nature of the charge to which he is entering a plea, it is not necessary that the trial court advise the defendant of the elements of the crime, or to specifically ask the defendant if he understands the charge, so long as the totality of the circumstances are such that the trial court is warranted in making a determination that the defendant understands the charge. See, also, State v. Swift (1993), 86 Ohio App.3d 407, 412; State v. Zeda (Oct. 13, 1994), Cuyahoga App. No. 66524, unreported; State v. Alamo (April 21, 1994), Cuyahoga App. No. 64096, unreported. The record herein shows, by the totality of the circumstances, that defendant did understand the nature of the charges against him. Defendant was advised of the charges repeatedly by the prosecutor, his own attorney and the court. At several points during the hearing the court asked defendant whether he had any questions and whether he understood the proceedings. Each time defendant indicated that he understood and that he had no questions. Defendant was present in the courtroom when the trial judge explained his constitutional rights, the nature of the charges and 5 the possible sentences. (Tr. 6-12). The trial court advised defendant of his right to trial by jury and his right to legal counsel; his right to confront witnesses in open court and to subpoena witnesses; that the State must prove his guilt beyond a reasonable doubt; his right to testify or not, and the prosecutor could not comment about defendant not testifying. When the court inquired whether defendant understood his rights, he answered in the affirmative. (Tr. 7-9). Counsel acknowledged that he discussed the charges with his client prior to the plea proceedings. (Tr. 5). In Rainey, the court considered an acknowledgment from defense counsel that he discussed the charges with his client as proof of a defendant's comprehension of the nature of the charges. Id. Finally, the following colloquy transpired between the court and defendant: THE COURT: Are you satisfied with the representation that you have received from your counsel? THE DEFENDANT: Yes. THE COURT: He has worked very hard for you. Is there anything about this case or these proceedings that you do not understand, or that you wish this Court to explain more fully? THE DEFENDANT: I understand everything. THE COURT: All right. On the amended first count, the attempted rape, an aggravated felony of the second degree to that charge, how do you plead; guilty or not guilty? THE DEFENDANT: Guilty. THE COURT: All right. To the amended, attempted felonious sexual penetration, an aggravated felony of the second degree as 6 amended in count two; how do you plead, guilty or not guilty? THE DEFENDANT: Guilty. THE COURT: All right. Are both of your pleas of guilty; are they made freely, voluntarily and of your own free will? THE DEFENDANT: Yes, they are. THE COURT: Okay. Do you understand that you have given up the rights that I have just gone through with you by virtue of your pleading guilty? Do you understand that? THE DEFENDANT: Yes. THE COURT: This Court will accept your pleas on the recommendation of the prosecutor. So, it's only two counts? (Tr. 10-12). Based on defendant's responses and the totality of circumstances, the trial court properly determined that defendant voluntarily pled guilty to the offenses. Defendant was fully advised of his rights as well as the nature of the charges against him. We find on this record that the trial court did substantially comply with Crim.R. 11 and the defendant's rights were adequately protected. Defendant's sole assignment of error is overruled. Judgment affirmed. 7 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, J., and KARPINSKI, 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 .