COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71786 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CHARLES BROWN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-341119. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John R. Kosko, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Pamela Walker Makowski, Esq. 12844 Vincent Drive Chesterland, OH 44026 -2- TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Charles Brown ( appellant ), appeals his convictions for attempted aggravated robbery and sexual battery which were obtained after the Cuyahoga County Common Pleas Court accepted a negotiated plea of guilty to these charges. The record reflects that appellant was indicted for one count of kidnapping, in violation of R.C. 2905.01; one count of aggravated robbery, in violation of R.C. 2911.01; and three counts of rape, in violation of R.C. 2907.02. The first two counts of the indictment each contained a violence specification. The conduct on which the indictment was premised concerned the alleged robbery and rape of one Catherine Dawson on or about May 14, 1996. The case proceeded to trial and midway through trial, after the state had presented its case, the trial court accepted a negotiated plea of guilty to an amended indictment containing one count of attempted aggravated robbery and one count of sexual battery. In exchange for appellant's plea of guilty to these charges, the remaining counts were nolled. Appellant was sentenced to concurrent terms of two to ten years on the attempted aggravated robbery charge and two years on the sexual battery charge. Appellant now appeals these convictions and assigns the following errors for our review: I. THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA WITHOUT FIRST INFORMING HIM THAT SUCH A PLEA WAIVES HIS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY, HIS CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR AND HIS CONSTITUTIONAL RIGHT TO REQUIRE THE STATE TO PROVE HIS GUILT BEYOND A -3- REASONABLE DOUBT AT A TRIAL AT WHICH HE CANNOT BE COMPELLED TO TESTIFY AGAINST HIMSELF. II. THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA UNDER THE TOTALITY OF THE CIRCUMSTANCES AS THERE WAS NO INQUIRY UPON WHICH THE TRIAL COURT COULD BASE A DETERMINATION THAT THE DEFENDANT WAS MAKING THE PLEA VOLUNTARILY, THAT THE DEFENDANT UNDERSTOOD THE NATURE OF THE CHARGE AGAINST HIM, THAT THE DEFENDANT UNDERSTOOD THE EFFECT OF HIS PLEA, OR THAT THE DEFENDANT UNDERSTOOD THAT HE WAS WAIVING HIS CONSTITUTIONAL AND NON-CONSTITUTIONAL RIGHTS. III. THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA AFTER THE DEFENDANT HAS MADE A PROTESTATION OF INNOCENCE BY FAILING TO DETERMINE THAT THE DEFENDANT HAS MADE A RATIONAL CALCULATION TO PLEAD GUILTY NOTWITHSTANDING HIS BELIEF THAT HE IS INNOCENT. IV. THE DEFENDANT WAS NOT PROVIDED WITH THE EFFECTIVE ASSISTANCE OF COUNSEL IN ENTERING HIS PLEA, RENDER (SIC) THE PLEA INVOLUNTARY AND VOID. I. In his first assignment of error, appellant contends that the trial court failed to comply with Crim.R. 11(C) when it failed to inform him that he would be waiving several of his constitutional rights before accepting his plea. Specifically, he argues that his plea was not knowingly and voluntarily entered because the court failed to apprise him that he was waiving several rights; namely, (1) the right to trial by jury; (2) the right to compulsory process; (3) the right to require the state prove his guilt beyond a reasonable doubt; and (4) the right not to testify against himself. -4- In determining whether a guilty plea is voluntarily, intelligently and knowingly entered, a reviewing court must determine whether the trial court substantially complied with the requirements of Crim.R. 11. State v. Carter (1979), 60 Ohio St.2d 34, 38; State v. Billups (1979), 57 Ohio St.2d 31; State v. Caplinger (1995), 105 Ohio App.3d 567, 572; State v. Calvillo (1991), 76 Ohio App.3d 714, 719. This rule provides, in part: (2) In felony cases the court may refuse to accept a plea of guilty ***, 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 ***, 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. 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; State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. The underlying purpose of Crim.R. 11 is to -5- convey to the criminal defendant sufficient information that will enable him to make a voluntary and intelligent decision whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480. A defendant who challenges his guilty plea must show that the lack of compliance with this rule had a prejudicial effect. Stewart, 51 Ohio St.2d at 93. The test for prejudice is whether the plea would have otherwise been made. Nero, 56 Ohio St.3d at 108. The record reflects that after the trial court judge presented the range of possible sentences that appellant could receive if convicted as charged, appellant agreed to the negotiated plea as offered by the state. This colloquy between the trial court judge and appellant followed: THE COURT: Approach the podium. All right. I want to comply with Rule 11 as is appropriate for a plea that occurs in mid trial. I do want to indicate that [appellant] has been on trial now for a day and-a-half. The State has presented its case in total. They have rested. We are now at the point where the defense has a right to call witnesses if you wish. You can testify or not testify. You can call witnesses or not call witnesses. You can present evidence or not present evidence. *** You can permit this case to be tried to completion and you can await a jury verdict or you can enter a plea as outlined by the prosecutor. It is your decision. But I want you to know that any plea that you enter must be freely and knowingly and voluntarily made. So, first of all, I want to ask you if you have any questions -6- about the possible plea bargain as outlined by the prosecutor? DEFENDANT: No. THE COURT: Are you freely entering this plea? DEFENDANT: Yes. THE COURT: Are there any questions that you care to ask me? DEFENDANT: No. THE COURT: Has anyone threatened you or promised you things in order to get you to take this plea? DEFENDANT: No. THE COURT: Okay. Are you under the influence of any drugs or alcohol or [medications] here today? DEFENDANT: No. *** THE COURT: Okay. As you know, you have the right to a trial. You have the right to cross-examine witnesses. You have the right to call witnesses. You have a right to remain silent. You have the right to appeal if convicted. By entering this plea here today, you are waiving these rights. You are admitting your guilt to the crimes that you are charged with and you are waiving your right to appeal. Do you understand that? DEFENDANT: Yes. As long as the trial court explains a criminal defendant's constitutional rights in a manner reasonably intelligible to the -7- defendant, there is no violation of Crim.R. 11(C) when the court does not use the exact language contained in the rule. State v. Ballard, 66 Ohio St.2d at paragraph two of the syllabus; State v. Anderson (1995), 108 Ohio App.3d 5, 11. As can be surmised from the excerpted colloquy, the trial court complied with Crim.R. 11(C) to the extent that appellant was informed that he would be waiving his right to a jury trial, his right to call witnesses in his defense and his right not to testify. The trial court did not, however, inform appellant that he would be waiving his right to have the state prove his guilt beyond a reasonable doubt. Nonetheless, under the totality of the circumstances, we find that appellant understood the implications of his plea and that he was waiving his right to have the state prove his guilt beyond a reasonable doubt. Appellant did not enter his plea until after the state rested its case, during the second day of trial. By this time, appellant had sat through nearly two days of trial at which time he heard two opening statements and all of the state's witnesses. Indeed, it was appellant's own counsel who referenced the state's burden to prove its case against appellant beyond a reasonable doubt. We find, under the totality of the circumstances, it reasonable to conclude that appellant was aware of the state's burden to prove his guilt where, as here, the appellant's plea was entered midway through trial. See State v. Bynum (Apr. 30, 1997), Summit App. No. 17982, unreported at 4-5.1 1I reach this conclusion despite my strong feelings about the constitutional stature of the right of a criminal defendant to be informed of the state's burden to prove his guilt beyond a -8- Satisfied that appellant was aware of the rights he was waiving in exchange for his guilty plea, the trial court did not err in accepting his plea. Accordingly, appellant's first assignment of error is not well taken and is overruled. II. In his second assignment of error, appellant contends that his guilty plea was not made in compliance with Crim.R. 11(C) because the trial court made no inquiry into his actual state of mind, mental health or educational background so as to determine if he fully understood the nature of the charges against him and the corresponding effect of entering a plea to those charges. The colloquy excerpted above and discussed in Section I of this opinion does not support the arguments advanced by appellant. The trial court fully inquired into, and received satisfactory responses to, appellant's ability to enter a voluntary, knowing and intelligent plea. Moreover, while inquiring of the criminal defendant after each individual right separately as suggested by the Ballard court may be the more appropriate practice and should be encouraged, the failure to implement such a practice does not invalidate an otherwise knowingly and intelligently entered plea. 66 Ohio St.2d at 479;State v. Shell (Oct. 30, 1997), Cuyahoga App. reasonable doubt. See State v. Scott (1996), 113 Ohio App. 401 (McMonagle, J., dissenting). Nonetheless, I believe a distinction exists where the plea is accepted before trial begins as compared to a plea accepted during mid-trial. See, also, State v. Higgs (Sept. 30, 1997), Trumbull App. 96-T-5450, unreported (appellate court vacated pre-trial plea where the trial court failed to apprise defendant of state's burden to prove guilt beyond a reasonable doubt). -9- No. 71736, unreported; State v. McGowan (Oct. 3, 1996), Cuyahoga App. No. 68971, unreported at 11-12; State v. Hunter (Jan. 25, 1996), Cuyahoga App. Nos. 68447-68451 and 69306, unreported at 5; see, also, State v. Wishum (Aug. 22, 1997), Greene App. No. 96-CA- 103, unreported at 8. Nor is the trial court required to inform the defendant of each element of the offense so long as the court is assured that the defendant understands the charges brought against him. In re Flynn (1995), 101 Ohio App.3d 778, 782; State v. Swift (1993), 86 Ohio App.3d 407, 412; State v. Sliman (Oct. 10, 1996), Cuyahoga App. No. 69917, unreported. Appellant further argues that the trial judge coerced appellant to accept the state's offer to plea when, after informed by appellant that he'll take the jury, the judge proceeded to explain the penalties associated with charges as originally indicted. In this regard, appellant claims that the judge actively participated in the plea negotiation process and, as a result, the plea as entered is invalid. In assessing the voluntariness of a plea, a reviewing court must carefully scrutinize a trial judge's participation. State v. Byrd(1980), 63 Ohio St.2d 288, 293. If the judge's participation rises to a level that leads a criminal defendant to believe that he could not get a fair trial or that the judge would be biased against him, the plea is involuntary and void. Id. at 293-294; see, also, State v. Walker (1989), 61 Ohio App.3d 768, 770; see, also, State v. Kirby (Oct. 25, 1990), Cuyahoga App. No. 59234, unreported at 2-3. -10- Contrary to appellant's arguments, the record fails to demonstrate that the trial judge actively participated in the plea negotiation process or that the judge could have led appellant to believe that he could not get a fair trial. The statements made by the judge were limited to an explanation of the potential sentences that appellant could receive, if convicted. The judge specifically stated to appellant that it was his call as to whether he wanted to plea. We do not consider such a colloquy to rise to the level of active participation in the plea negotiation process so as to invalidate appellant's plea. The judge did not comment on the strength of the state's case nor convey in any manner that trial would be futile. On the contrary, the judge specifically stated on at least two occasions that the decision to proceed to trial was appellant's alone. Looking at the totality of the circumstances, it cannot be said that the trial judge's level of participation left appellant with the belief that he had no choice but to enter a plea of guilty. Of critical importance is whether appellant's plea was knowingly and intelligently entered. In this regard, we find that his plea was so entered. The trial court explained the nature and consequences of the charges as originally indicted and as amended. Prior to accepting his plea, the trial court did recite appellant's constitutional rights, albeit not individually as suggested by the Ballard court. Looking at the totality of the circumstances, however, we find that appellant's plea was knowingly and intelligently entered. -11- Accordingly, appellant's second assignment of error is not well taken and is overruled. III. In his third assignment of error, appellant contends that the trial court failed to determine if appellant's decision to plead guilty was based on a rational calculation once appellant protested that he was innocent of the charges against him. Specifically,appellant complains that he maintained his innocence and it was therefore incumbent upon the trial court to inquire whether such a plea was rationally entered. In North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, the United States Supreme Court recognized that a plea of guilty may be accepted despite protestations of innocence provided that voluntariness of the plea is established in the record. When a criminal defendant professes his innocence when entering a guilty plea, the trial court should inquire as to whether the plea is based upon a rational calculation that a factual basis exists for such a plea and that it is in the defendant's best interest. State v. Padgett (1990), 67 Ohio App.3d 332, 338; see, also, Alford, 400 U.S. at 38, 92 S.Ct. at 167-168, fn. 10. In order to constitute an Alford plea, however, it is necessary that the protestation of innocence accompany the defendant's guilty plea. State v. Hurney (July 31, 1997), Cuyahoga App. No. 71053, unreported at 6-7; State v. Najeeullah (Oct. 3, 1996), Cuyahoga App. No. 70126, unreported at 3. -12- Here, appellant relies on an isolated statement made during sentencing wherein he stated that he didn't rape her. Yet, prior to accepting appellant's plea, no such statement was made. In response to the charges against him after the explanation of his constitutional rights, appellant pled guilty to a lesser offense, without any corresponding protestation of innocence. Appellant, unlike the defendants in Alford or Padgett, did not maintain his innocence at the time he entered his plea during the plea hearing. Consequently, it was not necessary for the trial court to determine whether appellant's decision to plead guilty was rationally calculated to be in his best interest. Accordingly, appellant's third assignment of error is not well taken and is overruled. -13- IV. In his fourth assignment of error, appellant contends that he was denied the effective assistance of counsel when counsel failed to object to the trial court's acceptance of his plea or failed to request that the plea be vacated after appellant protested his innocence. In general, a properly licensed attorney is presumed to be competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299; see, also, State v. Lott (1990), 51 Ohio St.3d 160, 174. In order to prove ineffective assistance of counsel in the context of a guilty plea, a criminal defendant must show that (1) his counsel's performance was deficient, and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and instead would have insisted on going to trial. See Strickland v. Washington(1984), 466 U.S. 668, 687; Hill v. Lockhart (1985), 474 U.S. 52, 57; State v. Xie (1992), 62 Ohio St.3d 521, 524-525. Here, appellant claims his counsel was ineffective because, despite his protestations of innocence, counsel failed to request that the plea be vacated or that he otherwise failed to invalidate the plea. Because we do not find that appellant's plea was a true Alford plea, counsel cannot be held to be ineffective for failing to act in the manner suggested by appellant. Accordingly, appellant's fourth assignment of error is not well taken and is overruled. V. -14- While this court finds no violation of Crim.R. 11 and therefore upholds the decision of the trial court convicting appellant of the charges to which he pled, we are disturbed by the trial judge's conduct in having the jury return to the courtroom for appellant's sentencing. Particularly disturbing, in light of the presence of the jury, are the comments which the trial court directed to appellant wherein the judge stated that he would have found appellant guilty of rape if he were the fact-finder. Unfortunately, this is not the first time that this court has reminded this trial judge of the impropriety of this conduct. See State v. Warren (Jan. 15, 1998), Cuyahoga App. No. 71196, unreported; State v. Harrison (Sept. 4, 1997), Cuyahoga App. No. 70764, unreported; State v. Keith (Mar. 13, 1997), Cuyahoga App. No. 69267, unreported; State v. Connor (June 27, 1996), Cuyahoga App. No. 65385; State v. Wright (Nov. 2, 1995), Cuyahoga App. No. 68027, unreported;State v. Williams (Oct. 19, 1995), Cuyahoga App. No. 67970, unreported; State v. Paige (Dec. 22, 1994), Cuyahoga App. No. 66743, unreported. We are compelled to take this opportunity again to unequivocally state that comments such as these, in combination with the judge's other comments regarding appellant's criminal background, at the very least are inappropriate and unprofessional; at the very worst, not in -15- compliance with the spiri of n and t and intent of Canon 3(B)(4)2 and (5)3the Code of Judicial Conduc system of justice is dependent upon the character and temperament of our judges. Comments such as these demean that reputation and cannot be condoned by ignoring them. This section provides: A d2 judge shall be courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity *** . 3This section provides: A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice *** . 4Commentary to section (B)(4) provides: The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate. 5Commentary to section (B)(5) provides: A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as bias or prejudice *** . -16- 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. BLACKMON, A.J. and KARPINSKI, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE 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 .