COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71955 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ROBERT E. MALIK, SR. : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-283380. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor George Rukovena Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Kevin M. Spellacy, Esq. McGinty, Gibbons & Hilow Co.,L.P.A. 1375 E. Ninth Street, #1920 Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., C.J.: Defendant-appellant Robert E. Malik, Sr. appeals from his conviction on counts one and two for aggravated robbery in violation of R.C. 2911.01; each count contained both a prior aggravated felony and a firearm specification. The appellant also appeals from his conviction on count five for having a weapon under disability in violation of R.C. 2923.13, with a violence specification. The appellant entered a plea of guilty to the above counts and, upon recommendation of the prosecutor, counts three and four, each for felonious assault, and six, for possession of criminal tools, were nolled. The appellant was sentenced to a term of incarceration of fifteen to twenty-five years each on counts one and two. On count five the appellant was sentenced to a term of three to five years incarceration. These sentences were ordered to be served concurrently. For the firearm specification on counts one and two, the court merged the two firearm specifications and ordered that the mandatory three years incarceration be served prior to and consecutively with the other sentences. At the plea hearing, counsel for the appellant informed the court that no representations or promises had been made to the appellant as to the sentence and requested that the court refer the appellant to the probation department after the plea for an evaluation of his medical condition. Upon questioning from the court as to whether or not there was a basis for the plea, counsel stated yes, and that he had discussions with his client and with -3- the prosecutor (T. 9). The court inquired directly of the appellant as to whether he was satisfied with his counsel. The appellant affirmed that he was. The court also inquired as to whether or not the appellant was under the influence of drugs, alcohol or medication which might prevent him from understanding the proceedings. The appellant answered that he was not (T. 10). The court completely and thoroughly informed the appellant regarding his constitutional rights. The appellant was informed of his right to a trial by jury, a trial to the judge, the right to cross-examine witnesses, the right to subpoena witnesses, the right to be presumed innocent until proven guilty beyond a reasonable doubt, the right to appointed counsel if indigent, and the right against self incrimination. When the court learned that the appellant was currently on parole, it informed him that, should the parole board revoke his parole, any sentence imposed by the current charges would be consecutive with the prior sentence. The court inquired as to whether or not the appellant had been promised or threatened in any way: THE COURT: Anybody promised you anything or threatened you, Mr. Malik, in any way in order to get you to plead guilty here today other than what Mr. Vegh has indicated that the Court did agree that it would refer you to the Probation Department for purposes at a minimum of understanding a little bit as to the nature and extent of your medical problems prior to being institutionalized? THE DEFENDANT: Yes, Ma'am. (T. 15). -4- The appellant then indicated that he fully understood the charges against him. The court proceeded to inform the appellant of the possible sentences which he could receive under counts one and two. The appellant questioned the court as to his possible sentence: THE DEFENDANT: I am pretty sure that that means that the first aggravated, if I plead guilty to it, I would stand a chance of catching from what you read off the paper, ten, eleven, twelve, thirteen, fourteen, fifteen to twenty-five years, right? THE COURT: You get three plus ten, eleven, twelve, thirteen, fourteen, fifteen to twenty- five; do you understand? THE DEFENDANT: Yes. (T. 16). The court informed the appellant as to the possible sentence for count two, and that such sentence could be imposed consecutively with count one. Once more the appellant indicated that he understood. The court went on to inform the appellant as to the possible sentence for count five, and the appellant indicated that he understood. The court inquired as to whether or not the appellant understood that by entering a plea of guilty he was admitting that he was guilty of each and every element of each and every offense. The appellant answered in the affirmative. The court then inquired: THE COURT: And no one has promised you or threatened you in any way to get you to plead here today? THE DEFENDANT: No. -5- THE COURT: No one has advised you to lie here under oath on the record as to any of the statements that you made to the Court regarding this plea bargain? THE DEFENDANT: No, ma'am. (T. 18). At this point the court accepted the appellant's plea of guilty to the charges and indicated that it was satisfied that the plea was made voluntarily and knowingly by the appellant. The appellant was permitted to address the court. The appellant indicated his remorse for the pain he caused others, asked for mercy from the court and then stated: I done a crime, and no sense in me going through a whole lot of stuff, wasting a lot of people's time, yourself, my lawyer, everybody else. I have to take some pain. . . . But I am just saying, I am not a bad person. I just want you to know that. (T. 21-22). The court indicated that there could be further discussion at the sentencing. The appellant sets forth two assignments of error. The first assignment of error: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO ENTERING HIS GUILTY PLEA, UPON ENTERING HIS GUILTY PLEA, AND AT SENTENCING. The appellant argues that he was denied effective assistance of counsel by counsel's failure to prepare the case, failure to engage in any discussion with the appellant prior to the plea hearing, failure to explain the possible penalties, failure to conduct any investigation into the character and background of the -6- appellant for purposes of mitigation, and failure to present witnesses, affidavits or argument at sentencing. To prevail on a claim for ineffective assistance of counsel, appellant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his or her duties in an ethical and competent manner. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. In the case sub judice, the appellant is unable to meet this burden. It must first be noted that the record before this court is without evidence to support the appellant's allegations that counsel failed to investigate and prepare this case, both for the plea hearing and for the sentencing. The appellant is arguing that somehow this court should reverse his conviction on the purported lack of discussions held in private between counsel and client. As there is no evidence to support the appellant's contention either way, the appellant's argument is not well taken. As to the appellant's contention that the appellant failed to inform him of his possible penalties, any failure on counsel's part must be deemed non-prejudicial in light of the court's thorough -7- discussion with the appellant, and appellant's statements on the record that he understood the court's instructions. See transcript sections cited in the facts, supra. Finally, any failure to present witnesses, affidavits or argument at sentencing would likewise work no prejudice on the appellant. The appellant spoke eloquently on his own behalf and plainly indicated to the court that he accepted the responsibility for his crimes. His counsel request that the minimum sentences be imposed and imposed concurrently because the appellant would have to spend significant amounts of time incarcerated. The court indicated at the sentencing that it reviewed the probation department's report for purposes of sentencing and considered all other factors that it was required to consider. The court stated that it considered the nature and circumstances of the offense committed by the appellant, as well as the appellant's criminal history. Since the trial court gave consideration to all of the above factors, the appellant has shown no prejudice by his counsel's alleged failure to present evidence at the sentencing hearing. The appellant's first assignment of error is overruled. The second assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ACCEPTING APPELLANT'S GUILTY PLEA WITHOUT ADEQUATELY DETERMINING THAT SUCH PLEA WAS MADE VOLUNTARILY AND KNOWINGLY, AND WITHOUT EXPLAINING THE RAMIFICATIONS OF A PAROLE VIOLATION, AS REQUIRED BY RULE 11. The appellant asserts that the trial court erred when it failed to: 1) ascertain whether or not the appellant had been -8- threatened in any manner; 2) to make sure the appellant understood the implications of his plea and the rights he waived; 3) to question the nature and character of the appellant's medical condition; 4) to inquire as to any medications the appellant was taking which might have precluded his understanding; and, 5) to explain the maximum penalty. Crim.R. 11 requires the trial court to address the defendant personally and determine that the plea is being made voluntarily with understanding of the nature of the charges. When reviewing a plea, the focus should be on whether the dictates of Crim.R. 11 have been followed. State v. Kelly (1991), 57 Ohio St.3d 127. See also State v. Scott (1996), 113 Ohio App.3d 401, where this court cited to State v. Stewart (1977), 51 Ohio St.2d 86 and held that 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. 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. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show prejudicial effect. Scott, supra. The appellant's assertions do not comport with the record before this court. The appellant cites to the transcript at page fifteen, where he argues that he informed the court that threats or promises had occurred. This court reads this passage as an -9- acknowledgment by the appellant that the court had referred him to the probation department. Assuming that the appellant was admitting that he was threatened, the trial court cured any prejudicial error when it re-questioned the appellant as to whether or not he had been threatened in any manner. The appellant responded in the negative (T. 18). Likewise, the court closely questioned the appellant as to whether or not he understood the implications of his plea and the rights he waived. On each occasion the appellant indicated that he understood the court's explanations (T. 11, 12, 13, 14, 15, 16, 17, 18). The appellant's contention that the court failed to question the nature and character of the appellant's medical condition is unsupported by the record. The court referred the appellant for an evaluation by the probation department and considered that evaluation in sentencing. The court also inquired of the appellant whether he was taking any medications which would impair his ability to understand the proceedings. The appellant responded in the negative (T. 10). And finally, the appellant asserts that the court failed to explain the maximum penalty as required under Crim.R. 11. The appellant asserts that the court was required to inform him of the actual time which the parole board might impose. There is no requirement in Crim.R. 11 that a trial court predict the future. It was sufficient for the court to inform the appellant that should the parole board revoke his parole, any sentence imposed by the -10- court would be served consecutively with his prior sentence. The appellant has failed to show that his plea was not knowingly, intelligently and voluntarily made, and he has failed to show any prejudicial effect. The appellant's second assignment of error is overruled. Judgment affirmed. -11- 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. ANN DYKE, J., and DIANE KARPINSKI, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE 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 .