COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72079 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION PHILIP PRATKA : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-341313. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael S. Nolan, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Michael E. Murman, Esq. 14701 Detroit Avenue, Suite 555 Lakewood, OH 44107 2 *HOLMES, J: Philip Pratka, defendant-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas, Criminal Division, to deny his motion to withdraw his guilty plea. Defendant-appellant sets forth the following assignments of error: . THE TRIAL COURT ERRED IN FAILING TO GRANT THE APPELLANT A MEANINGFUL HEARING ON THE MOTION TO WITHDRAW GUILTY PLEA, FILED PRIOR TO SENTENCING, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. On July 25, 1996, Philip Pratka, defendant-appellant, was indicted with one count of Kidnapping, in violation of R.C. 2905.01; one count of Felonious Sexual Penetration, in violation of R.C. 2907.12; one count of Attempted Kidnapping, in violation of R.C. 2923.02 and 2905.01; and one count of Possession of Criminal Tools, in violation of R.C. 2923.24. On July 31, 1996, defendant-appellant pled not guilty. Furthermore, on that date defendant-appellant was declared an indigent and was assigned a public defender. On September 11, 1996, defendant-appellant changed his plea to guilty of one count of Felonious Sexual Penetration and one count of Attempted Abduction as amended. The remaining counts were nolled by the court as part of the plea bargain. Defendant-appellant was subsequently referred to the Psychiatric Clinic for an evaluation and report pursuant to R.C. 2947.06. 3 On October 4, 1996, defendant-appellant filed a motion to withdraw his guilty plea and defense counsel filed a motion to withdraw as counsel. Defendant-appellant argued that his plea was made involuntarily since it was based upon information which he perceived was a misrepresentation of facts by his defense counsel. Moreover, defendant-appellant argued that since he had not yet been sentenced, the motion to withdraw is usually freely granted in these types of situations. On November 5, 1996, the trial court overruled both motions and sentenced defendant-appellant to eight to twenty-five years (8- 25) and a definite one (1) year to run concurrent. Defendant- appellant filed this appeal. In the first assignment of error, defendant-appellant argues the trial court abused its discretion in denying his motion to withdraw his guilty plea without scheduling a hearing for two reasons: 1) he had not been sentenced at the time he filed his motion to withdraw, and 2) his attorney informed the court of defendant-appellant's allegations that his plea was based upon misrepresentations regarding the plea bargain made to him by defense counsel. Crim.R. 11(C) provides in pertinent part: *** (2) In felony cases the court may refuse to accept a plea of guilty or 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 the understanding of the nature of the charge and of the maximum penalty involved, and, 4 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 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. In order to comply with Crim.R. 11(C), a trial court must determine whether the defendant fully comprehends the consequences of his plea of guilty. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty or no contest. Adherence to the provisions of Crim.R. 11(C)(1) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea or guilty or no contest. State v. Caudill (1976), 48 Ohio St.2d 343, paragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a trial court in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St.2d 86, 92. While, literal compliance with Crim.R. 11 is the preferred practice, the fact that the trial court did not strictly comply with Crim.R. 11 does not compel vacation of the defendant's guilty plea if the reviewing court 5 determines that there was substantial compliance. State v. Nero (1990), 56 Ohio St.3d 106. In Nero, the Ohio Supreme Court stated: Substantial compliance means that under the totality of circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Furthermore a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 5676, 364 N.E.2d at 1167; CrimR. 52(A). The test is whether the plea would have been otherwise been made. Id. At 108. In the case sub judice, defendant-appellant had not yet been sentenced when he filed the motion to withdraw his guilty plea. In such instances, this court has recognized even though a pre- sentence motion to withdraw a plea is to be freely granted, a denial of the motion may not be reversed by an appellant court without a showing of an abuse of discretion. State v. Posta (1988), 37 Ohio App.3d 144. A finding of abuse of discretion requires that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In reviewing the colloquy between the trial court and defendant-appellant, we find the trial court substantially complied with the requirements set forth in Crim.R. 11. Moreover, when asked if he was satisfied with the representations of his attorney, defendant-appellant responded that he was in fact satisfied with defense counsel's representation and that it was his desire to enter into the plea agreement. 6 In his motion to withdraw his guilty plea, defendant-appellant argues he entered into the plea agreement based upon misrepresentations of counsel. Defendant-appellant did not articulate any facts which the trial court could consider in support of his claim. Moreover, the trial court provided defendant-appellant the opportunity to present evidence in support of his motion prior to sentencing. Defendant-appellant failed to do so. Merely stating his decision was based upon misrepresentations, without more, is insufficient to support a finding that the trial court abused its discretion in denying defendant-appellant's motion. Accordingly, defendant-appellant's first assignment of error is not well taken. In his second assignment of error, defendant-appellant argues he was denied effective assistance of counsel. Specifically, defendant-appellant argues the record reflects that he was misled by his attorney and that through these misrepresentations, he was induced to enter his guilty plea. In order to substantiate a claim of ineffective assistance of counsel, defendant-appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his 7 legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396- 397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. 8 Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. In this case, defendant-appellant argues the record reflects that he was misled by his attorney and that through these misrepresentations, he was induced to enter his guilty plea. Again, defendant-appellant does not provide and/or argue specific facts upon which a finding of ineffective assistance can be found. Recognizing that a properly licensed attorney is presumed to execute his legal duty in an ethical and competent manner, defendant-appellant's unsupported allegations are insufficient to establish that defense counsel's performance was seriously flawed and deficient. As such, defendant-appellant's second assignment of error is not well taken. Judgment affirmed. 9 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. JAMES D. SWEENEY, C.J. and JOHN T. PATTON, J., CONCUR. *ROBERT E. HOLMES JUSTICE *Sitting by Assignment: Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .