COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72028 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : TONY ALEXANDER, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 19, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-334968 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Anthony A. Cox P.O. Box 6002 Hudson, Ohio 44236 -2- NAHRA, J.: Appellant, Tony Alexander, brings this appeal after the trial court denied his post-sentencing motion to withdraw his guilty plea. On July 8, 1996, appellant pled guilty to one violation of R.C. 2925.03, possession of cocaine in more than three times the bulk amount. Appellant had faced a ten-count indictment. On September 9, 1996, the trial court sentenced appellant to three-to- fifteen years with three years actual incarceration, a fine of $5,000, and costs. On October 28, 1996, appellant moved the trial court to withdraw his guilty plea, which motion was denied without a hearing. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN NOT PERMITTING THE DEFENDANT TO WITHDRAW HIS GUILTY PLEA AND VACATE AND SET ASIDE THE SENTENCE. Appellant makes three specific arguments in this assignment of error: 1) the trial court erred by accepting his plea when it was aware that he was taking prescription medications at the time he entered his plea; 2) the trial court erred by not holding a hearing in ruling upon his motion to withdraw his plea; and 3) the trial court violated Crim.R. 11(C) by not fully explaining the maximum penalty to which he would be subject by entering a guilty plea. As to appellant's first argument, he states that the court erred by not holding a competency hearing after it became aware he -3- was on prescription medication. At appellant's plea hearing, the trial court had the following dialogue with appellant: THE COURT: Are you under the influence today of any alcohol or drugs? THE DEFENDANT: Only prescription drugs. THE COURT: What kind of prescription drugs are you taking? THE DEFENDANT: I take Emitrax injections for cluster headaches. I had brain surgery in `92, and I have headaches since. I have been under the care of the Cleveland Clinic and Dr. Glen Solomon. I have had a procedure done called a Glyserol injection. It didn't work. I have tried to help my headaches through Emitrax and 800 mg Motrins and sometimes I wear a patch, a weekly patch. MR. STANTON: [Appellant's counsel] Any other medication? THE DEFENDANT: And Prednisone. THE COURT: Okay. Do you understand what we are doing here in court? Do these drugs that you take, these prescriptive drugs, alter your judgment in any way? THE DEFENDANT: No. THE COURT: Do they affect your judgment? THE DEFENDANT: No. THE COURT: All right. Do you understand what you are doing in court here today? THE DEFENDANT: Yes. In addition to this colloquy, appellant also relies on that fact that at his sentencing hearing his counsel made statements that appellant was obviously irrational to bolster his argument that the court was under a duty to make further inquiry into his competence. -4- Crim.R. 11 states in pertinent part: (C) Pleas of Guilty and no contest in felony cases: *** (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 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. *** Crim.R. 32.1 states: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. As to a Crim.R. 32.1 motion to withdraw a plea after sentencing, the Ohio Supreme court stated in State v. Caraballo (1985), 17 Ohio St.3d 66, 67, 477 N.E.2d 627, 628, that: After a defendant has been sentenced, a court may permit withdrawal of a plea only to correct a manifest injustice. *** The burden of establishing the existence of such injustice is upon the defendant. *** The logic behind this precept is to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence was unexpectedly severe. *** (Citations omitted.) -5- In State v. Borchers (1984), 101 Ohio App.3d 157, 655 N.E.2d 225, the reviewing court determined that the trial court did not err by accepting a defendant's guilty plea when the defendant was on the prescription drug Lithium for depression where the record was devoid of any indicia of incompetency. Similarly, this court has upheld the acceptance of a guilty plea where the defendant is on prescription medication or other drugs, affirmatively states he understands the proceedings, and the record is devoid of evidence of incompetence. See, e.g., State v. Hollis (Feb. 6, 1992), Cuyahoga App. No. 59856, unreported; State v. Benn (Dec. 7, 1989), Cuyahoga App. No. 56285, unreported; State v. Kloos (Feb. 12, 1987), Cuyahoga App. No. 50879, unreported; State v. McGhee (Feb. 12, 1987), Cuyahoga App. Nos. 51540, 51541, 51542, unreported. In this case, the court, upon learning appellant was taking prescription medication, made further inquiry of appellant as to the effect of the medication on appellant's judgment and as to whether he understood the proceedings. Additionally, the transcripts of both appellant's plea and sentencing hearings indicate that appellant followed and understood the proceedings as they took place. Without further evidence of impairment, we find that the court complied with Crim.R. 11 in determining that appellant knowingly and voluntarily entered his guilty plea. Appellant states that his counsel's statements at sentencing regarding his mental state at the time of appellant's criminal activity that he was irrational should have further alerted the trial court to question his competency. However, appellant's -6- counsel's arguments were aimed at mitigation and did not impose a duty on the court to further investigate appellant's competence. Moreover, appellant spoke to the court at the sentencing and his statements did not indicate a lack of competence as to understanding the nature and effect of his plea and the proceedings. Accordingly, we do not agree with appellant's first argument that the court erred by not making a further inquiry into his competence to enter a guilty plea. Appellant's second argument, that the court erred by not holding a hearing to decide his Crim.R. 32.1 motion to withdraw his plea is without merit. In State v. Hamed (1989), 63 Ohio App.3d 5, 6, 577 N.E.2d 1111, 1112, we stated that A hearing in a post- sentence motion to withdraw a plea of no contest is required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn. *** (Citations omitted.) The decision on whether or not a court is to hold a hearing on a defendant's Crim.R. 32.1 motion to withdraw a plea is reviewed to determine whether the trial court committed an abuse of discretion. See, State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324, syllabus paragraph 2. In this case we cannot find that the trial court abused its discretion by not holding a hearing upon appellant's motion. Appellant attached a medical evaluation to his motion. The medical evaluation and history appellant attached does not contain evidence that the medication prescribed affected appellant's judgment or -7- altered his mental capacity. Moreover, as noted above, no evidence of incompetence was presented to the court at either hearing. Accordingly, appellant's second argument is not persuasive. Appellant's third argument is wholly without merit. Appellant claims that the court did not follow the mandate in Crim.R. 11(C)(2) to explain the maximum penalty because it did not comply with R.C. 2943.032. R.C. 2943.032 requires a court to inform a defendant of certain information as to possible extension of a prison term. R.C. 2943.032 was enacted as part of Senate Bill 2, a bill incorporating sweeping changes in Title 29 of the Revised Code. In State v. Lemmon (1997), 78 Ohio St.3d 186, 677 N.E.2d 347, the court found that Senate Bill 2 was not to be applied retroactively, and that by its terms, the changes were to be applied only to those defendants whose offenses were committed after July 1, 1996. Appellant's offense was committed prior to July 1, 1996. Accordingly, the court did not err. Appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: APPELLANT'S PLEA WAS NOT KNOWINGLY AND INTELLIGENTLY MADE IN THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL Appellant argues that the following facts demonstrate that he did not receive effective assistance of counsel: 1) his counsel did not refer him for a psychiatric evaluation to determine his competency, 2) at his sentencing hearing his counsel stated of him there is no question he is guilty , and 3) appellant, by -8- affidavit, stated that his counsel was aware he was on medication, did not listen to him, and threatened him at his plea hearing. In State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, the court stated that in order to prevail on a claim of ineffective assistance of counsel upon entry of a guilty plea, a defendant must meet the test set forth in Strickland v. Washington (1984), 466 U.S. 668. Under this test, the defendant must first show that counsel's performance was deficient and second, `the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty ***.' Xie, 62 Ohio St.3d at 524, 584 N.E.2d at 717 (Quoting Hill v. Lockhart (1985), 474 U.S. 52, 59.) Appellant's arguments are not persuasive. As stated in Part I, supra, the record does not support appellant's claim that he was incompetent to enter a plea. Appellant's argument as to counsel failing to request a competency hearing is without merit. Appellant also argues that his counsel committed error by asserting his guilt to the court at the sentencing hearing. We find no error. Appellant admitted his guilt by entering his plea. Counsel's arguments, aimed at mitigation and conveying remorse do not constitute ineffective assistance of counsel. As to appellant's arguments that his counsel did not listen to and threatened him; these facts are contained in appellant's affidavit. They are unsupported and not indicative of the representation apparent in the record. Appellant was able to plead to an amended count of a ten-count indictment. Additionally, at -9- the plea hearing, appellant stated that he was satisfied with the work his trial counsel had done and that he was entering his plea voluntarily and of his own free will. Accordingly, appellant's second 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 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. PORTER, P.J., and ______________________________ JOSEPH J. NAHRA PATTON, J., CONCUR. 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 .