COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72027 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION GEORGE SMITH : : Defendant-appellant : : : MARCH 12, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-333715 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: GAIL DENISE BAKER, ESQ. DANIEL SCULLY, ESQ. Assistant County Prosecutor Assistant Public Defender Justice Center, 8th Floor 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 PATTON, J. -2- As a result of a negotiated plea bargain he made with the state, defendant-appellant George Smith ( defendant ) pleaded guilty to burglary in violation of R.C. 2911.12(A)(2) which included a single specification for violence. Defendant appeals the entering of his guilty plea arguing the trial court erred by not inquiring into the factual basis underlying the crimes he was charged with. Defendant was indicted for aggravated burglary in violation of R.C. 2911.11. The indictment contained five specifications, three for violence and two for aggravated felonies. After discussions with plaintiff-appellee State of Ohio ( state ), a plea bargain was agreed upon. In exchange for defendant entering a guilty plea, the state agreed to amend the indictment by reducing the charge from an aggravated felony of the first degree to a felony of the third and deleting four of the five specifications. At the Crim.R. 11 proceeding on June 6, 1996, defendant explained to the trial court that the incident which resulted in the charges against him was not a burglary but rather a case of domestic violence. He stated the reason he agreed to the plea bargain was to avoid being sentenced to a long prison term. Defense counsel and the state both testified that lengthy discus- sions occurred regarding this particular case and defendant had agreed to the plea bargain. The trial court explained to defendant the rights he was waiving as a result of entering a guilty plea. Defendant informed the trial court he understood he was waiving these rights and subsequently pleaded guilty. -3- In November 1996 defendant filed pro se motions to vacate or set aside the sentence. These motions were denied based on defendant's failure to timely raise these issues in a direct appeal. A few months later, defendant filed a pro se motion for a delayed appeal which was granted. On appeal defendant presents a single assignment of error, which states as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ACCEPTING THE APPELLANT'S GUILTY PLEA AFTER HE ASSERTED HIS INNOCENCE BY NOT FIRST PRESENTING A SUMMARY OF THE FACTUAL BASIS UNDERLYING THE OFFENSES CHARGED IN BOTH THE ORIGINAL INDICTMENT AND THE AMENDED INDICTMENT. Defendant argues the trial court erred by not conducting an Alford plea proceeding when he entered his guilty plea. He claims the trial court made no in-court presentation of the basic facts underlying the charged offense thus his plea was not entered voluntarily or knowingly. Furthermore, defendant argues the trial court should have determined whether the state's evidence would have made out a prima facie case for the offense charged in the original or amended indictment. He also contends the indictment did not delineate the felony he allegedly committed or what items he intended to steal and the transcript is devoid of any indication he intended to commit a theft offense. Lastly, defendant complains he was guilty of domestic violence and not burglary plus he submits the only reason he pleaded guilty was to avoid the potential sentence he faced if he went to trial. The state maintains the trial court did not err by not providing a factual basis for the charges stated in the original or -4- amended indictment. The state argues defendant knowingly and voluntarily entered his guilty plea and the transcript contradicts defendant's argument that he declared his innocence. Moreover, the state asserts the transcript reflects the fact that defendant knew the penalty he faced, understood the rights he was waiving, and understood the effect of the plea bargain. Thus, his plea was not an Alford plea but rather a knowing, voluntary and intelligent acquiescence of guilt. In North Carolina v. Alford (1971), 400 U.S. 25, 38, the United States Supreme Court found that a plea of guilty linked with a claim of innocence regarding the underlying offense may be accepted by the trial court provided the defendant intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. Applying Alford, this court has determined that it is reversible error to accept a guilty plea coupled with a claim of innocence when the record is devoid of a basic factual framework against which the trial court could weigh the appellant's claims of innocence against her willingness to waive trial. State v. Williams (Sept. 25, 1997), Cuyahoga App. No. 70998-71000, unreported citing to State v. Casale (1986), 34 Ohio App.3d 339, 340. The Ohio Supreme Court in State v. Piacella (1971), 27 Ohio St.2d 92, determined that a guilty plea may be accepted when entered along with a claim of innocence. This determination affirms the holding in Alford that a defendant may intelligently conclude that his interests would be better served by a guilty plea -5- in spite of his proclaimed innocence. State v. Holder (1994), 97 Ohio App.3d 486; State v. Najeeullah (Oct. 3, 1996), Cuyahoga App. No. 70126, unreported. In Piacella, the Court stated: Where the record affirmatively discloses that: (1) defendant's guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and (5) defendant was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntarily and intelligently made. Defendant claims he repeatedly informed the trial court he was innocent of aggravated burglary and burglary but conceded his guilt to domestic violence. He argues he pleaded guilty to burglary to avoid the potential sentence he faced if found guilty at trial. In support of this reasoning, defendant cites to the following discussion he had with the trial court: THE COURT: *** So Mr. Smith, what do you want to do? THE DEFENDANT: I plead guilty, your honor. THE COURT: You want to take the plea bargain? THE DEFENDANT: Yes Ma'am. THE COURT: Now, is that what your mother recom- mended? THE DEFENDANT: No, your Honor. THE COURT: No? THE DEFENDANT: She told me to think about it, your Honor. THE COURT: Oh, okay. So, she left it up to you too? -6- THE DEFENDANT: Say I don't have no choice. This case was not like that, your Honor. THE COURT: So, she told you that she would understand whatever you decided to do; is that right? Is that essen- tially it? -7- THE DEFENDANT: Just said if I would go to trial, I'm going to lose automatically, by me having a record. I really don't want to take the plea bargain, your Honor, but I really don't want to do no 10 years because this case ain't really like what it is. It's on nothing but a domestic thing. (emphasis added) Defendant also argues the indictment did not delineate the felony he allegedly committed or what items he intend to steal and the transcript is devoid of any indication he intended to commit a theft offense. Lastly, defendant complains the original complaint did not allege he intended to inflict or threaten the victim with physical harm. Defendant claims this lack of information in the indictment and complaint substantiates his claim that the state could not establish a prima facie case for aggravated burglary. First, there is no testimony supporting defendant's claim that he stated he was innocent of aggravated burglary or burglary at the Crim.R. 11 proceeding. At the Crim.R. 11, proceeding defendant said he was not trying to break into her house or hurt her or nothing. On several other occasions defendant stated he was only guilty of domestic violence and not aggravated burglary. However, he never said he was innocent, he just said his intent was not to break-in or harm the victim and that this incident was not an aggravated burglary but a domestic violence issue. Second, the trial court did provide a basic factual framework in which it could weigh defendant's alleged claim of innocence against his willingness to waive trial. The following discourse -8- provides a framework and is the trial court's response to defen- dant's claim that he was only guilty of domestic violence and not aggravated burglary: THE COURT: But here's the thing. I hear you talking and I hear you saying, when you look up to the Judge and you see this is aggra- vated burglary, you are imagining someone who's got a mask and a gun or knife and he's breaking into a poor innocent per- son's home. I'm doing what I'm doing and it's part of a quarrel I'm having with someone that I have affections for and I'm under the influence of drugs or drugs are somehow driving my conduct. And yet, if you want to go to trial and plead not guilty and see if the State of Ohio can prove this, you can do that. This discourse reflects the fact that the trial court was aware of the factual basis of the case and clearly indicates the record is not devoid of a basic factual framework. The trial court empha- sized to defendant the facts of the case and merely left the decision to accept the plea bargain or proceed to trial up to defendant. Based on these facts, defendant's argument that he proclaimed his innocence to aggravated burglary or burglary and was not provided an Alford plea is without merit. Third, the record affirmatively discloses the five factors set forth in Piacella were met in the instant case: (1) there is no evidence defendant was coerced, deceived or intimidated into pleading guilty, (2) defense counsel was present, (3) there is no evidence or claims of incompetent representation, (4) the charges -9- and penalties were explicitly explained to defendant, and (5) it is obvious from the record defendant pleaded guilty to seek a lesser penalty or feared the consequences of a jury trial. Thus, defendant's guilty plea was voluntarily and intelligently entered. Moreover, the record also establishes that there were in-depth discussions between defendant and the state regarding his plea bargain and it is also clear that defendant was well aware of the penalties he faced. Therefore, we find that defendant knowingly and intelligently pleaded guilty. Lastly, the indictment does delineate the felony defendant allegedly committed, it states defendant was indicted for aggra- vated burglary, R.C. 2911.11. Also, the state is under no duty to list the items defendant supposedly stole in connection with the aggravated burglary. R.C. 2941; see also Crim.R. 7(B). Defendant claims the lack of this information in the indictment plus the lack of threatening language in the complaint bolsters his claim the state could not make a prima facie case. Defendant's cites no case law in support of these arguments and we find them to be unpersua- sive. The state is under no obligation to make a prima facie case at any pre-trial proceeding or Crim.R. 11 proceeding. Therefore, defendant's sole assignment of error is overruled. Judgment affirmed. -10- 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. 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. NAHRA, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .