COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72407 STATE OF OHIO : : : : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND LYLE LEON : OPINION : Defendant-appellant : DATE OF ANNOUNCEMENT MARCH 12, 1998 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 340040 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Jerome Emoff, Esq. Cuyahoga County Prosecutor 620 Terminal Tower By: Randi Marie Ostry, Esq. Cleveland, Ohio 44113 Assistant County Prosecutor 1200 Ontario Street Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: Lyle Leon, defendant-appellant, appeals from his plea of guilty to one count of aggravated drug trafficking in violation of R.C. 2925.03. Defendant-appellant assigns three errors for review concerning the sentence imposed by the trial judge, the effectiveness of trial counsel and the trial court's alleged failure to comply with the mandates of Crim.R. 11. For the following reasons, defendant-appellant's appeal is not well taken. On June 26, 1996, in Case No. CR-340040, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a three-count indictment for Aggravated Trafficking in Drugs with a firearm specification, in violation of R.C. 2925.03, Aggravated Trafficking in Drugs without a firearm specification, and Possession of Criminal Tools, in violation of R.C. 2925.24. Moreover, defendant-appellant had previously been indicted in Case No. CR-329451 for one count of Felonious Assault with a violence and firearm specification in violation of R.C. 2903.11. Defendant-appellant had also been indicted in Case No. CR-335947 on two counts of Trafficking in violation of R.C. 2925.03, one count of Drug Abuse in violation of R.C. 2925.11, and one count of Possession of Criminal Tools in violation of R.C. 2923.24. Defendant-appellant originally pled not guilty to all charges. All three cases were subsequently consolidated for purposes of the plea agreement at issue. On July 17, 1996, upon recommendation of the prosecutor, the trial court accepted a plea agreement whereby defendant-appellant -3- pled guilty to one count of Aggravated Trafficking in violation of R.C. 2925.03 with the firearm specification being deleted in Case No. CR-340040. All other counts were nolled. The trial court sentenced defendant-appellant to three (3) to fifteen (15) years incarceration with credit for time served. Defendant-appellant also pled guilty to the charges set forth in CR-329451 and CR- 335947 as amended with those sentences running concurrent to that which was imposed in CR-340040. On November 22, 1996, defendant-appellant filed a motion to modify or reduce his sentence pursuant to R.C. 2929.51 which was implicitly overruled by the trial court's failure to rule on it. See Solon v. Solon Baptist Temple, Inc. (1982), 8 Ohio App.3d 347. Thereafter, on April 23, 1997, defendant-appellant filed a notice of delayed appeal which was granted by this court. Since defendant-appellant's first and second assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN SENTENCING APPELLANT TO A SECOND DEGREE FELONY TERM. II. APPELLANT WAS PREJUDICED BY THE DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL. In his first two assignments of error, defendant-appellant argues the trial court erred in imposing a sentence of three (3) to fifteen (15) years which is consistent with a second degree felony when in fact he pled guilty to R.C. 2925.03(A)(4); a third degree felony. Defendant-appellant argues he could only be sentenced consistent with a second degree felony if there was evidence of a -4- prior felony drug abuse conviction which was not established by the state. Finally, defendant-appellant argues his counsel was ineffective for failure to object to the trial court's obvious error. We disagree. Contrary to defendant-appellant's assertions, defendant- appellant pled guilty to Aggravated Trafficking in Drugs in violation of R.C. 2925.03 as stated in count one of the indictment in CR-340040.1The amount averred to in the indictment is an amount equal to or exceeding three times bulk which, pursuant to R.C. 2925.03(C)(6), constitutes a second degree felony. Therefore, the trial court did not err in sentencing defendant-appellant to three (3) to fifteen (15) years and defense counsel was not ineffective in failing to object to what was in fact an appropriate sentence. Defendant-appellant's third assignment of error states: III. APPELLANT'S GUILTY PLEA WAS NOT ENTERED INTO KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY THEREBY DEPRIVING HIM DUE PROCESS OF LAW. Initially we address the state's contention that defense counsel's failure to object and/or file a motion to withdraw pursuant to Crim.R. 32.1 constitutes waiver of this issue on appeal. While we acknowledge that in some instances the failure to object and/or file a motion to withdraw can constitute waiver of the issue on appeal, see e.g., State v. Stokes (March 7, 1996), Cuyahoga App. No. 69032, unreported, in this case a review of the record clearly establishes there was a defect in the trial court 1The firearm specification had been deleted as part of the plea agreement. -5- proceeding with regard to defendant's understanding of the state's burden of proof. In such instances, appellate courts will notice and rectify plain errors which effect substantial rights pursuant to Crim.R. 52(B). State v. Underwood (1983), 3 Ohio St.3d 12, 13; State v. Caplinger (1995), 105 Ohio App.3d 567. Crim.R. 11(C) provides in pertinent part: (1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. (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, 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. Crim.R. 11(C) was adopted in order to facilitate a more accurate determination of the voluntariness of a defendant's plea by ensuring an adequate record for review. State v. Stone (1975), 43 Ohio St. 2d 163; State v. Nero (1990), 56 Ohio St.3d 106. In -6- 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 or no contest. 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. The Ohio State Supreme Court has made it clear that due to the nature of the constitutional guarantees, a defendant must be informed of his constitutional rights before it can be determined that his plea had been given knowingly. See State v. Ballard (1981), 66 Ohio St.2d 473; Nero, supra; State v. Gibson (1986), 34 Ohio App.3d 146. These rights have been specified as: (1) the Fifth Amendment privilege against compulsory self-incrimination, (2) the right to a trial by jury, and (3) the right to confront one's accusers. See Boykin v. Alabama (1969), 395 U.S. 238, 243. However, in addition to these constitutional guarantees, Crim.R. 11(C) requires the trial judge to inform the defendant of other matters before accepting a guilty plea. State v. Johnson (1988), 40 Ohio St.3d 130. While, literal compliance with Crim.R. 11(C) is the preferred practice concerning these matters, the fact that the trial court did not strictly comply with Crim.R. 11(C) does not compel vacation of the defendant's guilty plea if the -7- reviewing court determines that there was substantial compliance. State v. Stewart (1977), 51 Ohio St.2d 86, 92. In Nero, supra at 108, 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; Crim.R. 52(A). The test is whether the plea would have been otherwise been made. Id. at 108. In this case, when the trial court addressed defendant- appellant, the following dialogue took place: THE COURT: You have certain basic constitutional rights which I am about to explain. Please feel free to interrupt me if you should not understand those rights. You have a right to a trial by a jury. Do you understand that? DEFENDANT: Yes, sir. THE COURT: You can waive that right and have your case tried by a judge of this court. Do you understand that? DEFENDANT: Yes. THE COURT: You have a right to confront and cross-examine the State's witnesses. Do you understand that? DEFENDANT: Yes, sir. THE COURT: You have a right to subpoena witnesses in your defense. Do you understand that? DEFENDANT: Yes, sir. -8- THE COURT: You have a right to a lawyer throughout these entire proceedings, either appointed or retained. Do you understand that? DEFENDANT: Yes. THE COURT: You have a right to testify yourself, or not to testify, and no one can comment on the fact that you did not testify in the case. Do you understand that? DEFENDANT: Yes. THE COURT: You are not required to prove anything. The State must prove its case by evidence beyond a reasonable doubt. Do you understand that? DEFENDANT: I didn't understand you. Just that last one. THE COURT: Do you understand that the Court can impose sentence immediately should you enter pleas of guilty? DEFENDANT: Do I plead guilty? THE COURT: I said, do you understand that the court can impose sentence immediately if you plead guilty to these offenses? DEFENDANT: Yes, sir. Initially we note that failure of the trial court to repeat and/or clarify any misunderstanding concerning the burden of proof is not constitutionally required. Johnson, supra at 132; Village of Valley View v. Terlop (June 13, 1996), Cuyahoga App. No. 69464, unreported. However, Crim.R. 11(C)(2)(c) does require that the trial court substantially comply in informing defendant-appellant and determining that he understands that he was waiving his right to require the state prove his guilt beyond a reasonable doubt. From a review of the record, it is clear this was not done. Unlike situations where a court fails to inform a defendant of the state's burden of proof and substantial compliance can be inferred from the record, see State v. Binion (April 18, 1996), -9- Cuyahoga App. No. 69336, unreported, the defendant in this case stated that he did not understand his right to have the state prove his guilt beyond a reasonable doubt. Therefore, he could not be presumed to have intelligently and voluntarily waived said right. Accordingly, we find the trial court failed to substantially comply with Crim.R. 11(C)(2)(c) when it failed to adequately respond to defendant-appellant's misunderstanding with regard to the state's burden of proof. However, that does not end our inquiry. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must demonstrate a prejudicial effect. Stewart, supra; Johnson, supra. The test is whether the plea would have otherwise been made. Id.; State v. Nero (1990), 56 Ohio St.3d 106. From a review of the entire record, defendant-appellant has failed to establish the plea would not have been otherwise entered into. In fact, considering the potential time served for the three cases to which defendant-appellant pled, we can reasonably infer that his plea was a wiser course to follow made in order to obtain a favorable sentence. See, Stewart, supra at 93; State v. Calvillo(1991), 76 Ohio App.3d 714; State v, Smith (May 29, 1997), Cuyahoga App. No. 70798, unreported. Therefore, while the trial court did not substantially comply with Crim.R. 11, defendant- appellant failed to establish any prejudicial effect. Judgment affirmed. -10- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. PATRICIA ANN BLACKMON, A.J. AND LEO SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .