COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72436 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : VERNON A. BROWN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JUNE 25, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-282102 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Gail Denise Baker Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Wildon V. Ellison 34950 Chardon Road Suite 210 Willoughby Hills, Ohio 44094 -2- NAHRA, P.J.: Appellant, Vernon A. Brown, appeals his convictions of robbery and abduction. He now claims ineffective counsel in a plea not knowingly, voluntarily, and intelligently given. Brown was indicted for two counts of aggravated robbery, with firearm and violence specifications, and one count of kidnapping, with a firearm specification, on July 7, 1992. Appellant entered a plea of not guilty, was declared indigent, and assigned Richard A. Damiani as counsel. On July 10, 1992, a demand for discovery and a bill of particulars was filed. On August 12, 1992, appellant filed a motion for a psychiatric examination after appellant allegedly attempted suicide while incarcerated. Subsequently, appellant stipulated to a finding of competency and a trial was scheduled. On November 23, 1992, appellant pled guilty to robbery and abduction. All remaining counts were nolled. At the sentencing hearing, the trial judge thoroughly informed appellant of his constitutional rights and made sure appellant understood that any sentence which the court might impose could be served consecutively with the sentence for which Brown was then on probation. The court then turned to the plea agreement and the following colloquy took place: THE COURT: Do you understand sir, that the plea of guilty is a complete admission of your guilt and by entering such a plea, you are waiving all of these rights? THE DEFENDANT: Yes. -3- THE COURT: Has anyone, including your attorney, the prosecutor or this court made any promises, threats or inducements to you to cause you to enter this plea? THE DEFENDANT: No. THE COURT: Do you understand that upon acceptance of your plea, the Court may proceed to judgment and sentencing. THE DEFENDANT: Yes. THE COURT: The charge of robbery is a violation of 2911.01 to which you are desirous of pleading guilty as amended in count one of the indictment, is an aggravated felony of the first degree, punishable by a possible term of incarceration of five, six, seven, eight, nine, ten, to twenty- five, as well as a possible fine of up to ten thousand dollars. Do you understand the nature of the charge and the penalty as I have stated? THE DEFENDANT: Yes. THE COURT: And the charge of abduction as amended in count three of the indictment is in violation of 2905.02 of which you are desirous of pleading guilty, is an aggravated felony of the third degree, punishable by a possible term of incarceration of two, three four, five, to ten years, as well as a possible fine of up to five thousand dollars. Do you understand the nature of the charge and the penalty I have stated? THE DEFENDANT: Yes. THE COURT: Sir, is there anything about this case or these proceedings you do not understand? THE DEFENDANT: No. THE COURT: Are you satisfied with the representation you have received from your attorney, Mr. Damiani in this case? -4- THE DEFENDANT: Yes. THE COURT: How do you wish to plead to the charge as amended in count one and three? THE DEFENDANT: Guilty. THE COURT: Are these voluntarily done of your own freewill and desire Mr. Brown. THE DEFENDANT: Yes. THE COURT: Mr. Damiani as an officer of the Court having had confidential conversations with your client, do you believe he is entering these pleas knowingly, intelligently and [in a] voluntarily fashion today? MR. DAMIANI: I do, your Honor. THE COURT: Gentlemen, have I satisfied all the requirements of Rule 11? MR. CAINE: Yes, your Honor. MR. DAMIANI: Yes. THE COURT: The court will accept the defendant's pleas and find the defendant guilty as amended in counts one and three of the indictment. Appellant was then sentenced to a term of 8 to 25 years on the charge of robbery and 4 to 10 years on the count of abduction. Sentences to run concurrently with appellant's other convictions and consecutively with each other. On March 28, 1994, appellant filed, pro se, a motion to set aside judgment and conviction. This was overruled. On July 17, 1996, appellant filed a petition to vacate or set aside sentence in which he stated under claim number two [a]ppointed counsel, prosecutor William Cain, and myself negotiated a plea. Counsel conveyed that I'd receive 5 to 25 years -5- for aggravated robbery concurrent with 4 to 10 for abduction. It was agreed upon (on the court's record) that prosecutor would recommend 5 to 25 concurrent with 4 to 10. At sentencing prosecutor made no such recommendation, and I was sentenced to 8 to 25 years consecutive with 4 to 10 ... which is 12 to 35 years. After numerous other filings, appellant again filed a motion for postconviction relief on August 14, 1996. On September 9, 1996, this motion was denied and findings of fact and conclusions of law were issued. On May 1, 1997, appellant filed a motion for leave to file a delayed appeal of his conviction. This was granted, and appellant now assigns two errors for our review. I. Appellant's first assignment of error states: THE COURT ERRED TO THE PREJUDICE OF APPELLANT WHERE HIS PLEA WAS COERCED BY INEFFECTIVE COUNSEL AND WAS NOT KNOWINGLY VOLUNTARILY AND INTELLIGENTLY GIVEN PURSUANT TO CRIM.R. 11 AND IN VIOLATION OF UNITED STATES AND OHIO CONSTITUTIONS (SIC)(T.PP.3-12)(EXHIBITS A , B , C , D , E , F , AND G ). Appellant alleges that the trial court failed to comply with Crim.R. 11(C)(2) and argues that pursuant to Crim.R. 32.1, which states, to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea, his conviction should be vacated. Brown maintains that his counsel, Damiani, coerced him into entering a plea of guilty, promising in return a sentence of boot camp for six months. Brown further maintains that Damiani told him that he would be found guilty either way and, if this case went to trial, -6- he would not see daylight until he was 50 years of age. As a result, appellant contends his decision to enter the plea was not knowingly and voluntarily made. Crim.R. 11(C)(2) requires: (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 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. A trial court in taking a plea must substantially comply with Crim.R. 11(C)(2)(a)&(b). State v. Colbert (1991), 71 Ohio App.3d 734, 737, 595 N.E.2d 401, 403. 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, 564 N.E.2d 474, 476. 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. State v. -7- Scott (1996), 113 Ohio App.3d 401, 402, 680 N.E.2d 1297, 1298. Therefore, upon review a finding of compliance with the rule can be based upon a consideration of the totality of the circumstances surrounding the entry of the plea. State v. Carter (1979), 60 Ohio St.2d 34, 396 N.E.2d 757; see, also, State v. Nero (1990), 56 Ohio St.3d 106, 564 N.E.2d 474, Colbert, supra. Moreover, a defendant's mistaken belief or impression regarding the consequences of his plea is not sufficient to establish that such a plea was not knowingly and voluntarily made. State v. Sabatino (1995), 102 Ohio App.3d 483, 486, 657 N.E.2d 527. It is a difficult task for a court to determine whether a defendant subjectively understands the implication of his plea and the waiver rights, however, if the defendant receives the proper information, then we can ordinarily assume he understands the information. State v. Carter (1979), 60 Ohio St.2d 34, 38. In this case, it is apparent from the record that appellant was fully informed of his constitutional rights as well as the potential penalty he could receive as a result of the waiver of these rights. Consequently, in order to rebut the supposition of compliance with Crim.R. 11, the appellant needs to produce affirmative evidence to the contrary. After careful review of the entire record, it is clear that the trial court competently and thoroughly complied with the mandates of Crim.R. 11. The trial court judge diligently informed appellant of his constitutional rights, as well as the potential penalties he could receive as a result of his plea. The trial court also determined that no -8- threats or promises had been made to appellant to induce his plea. Due to this compliance, appellant is deemed to have subjectively understood, and any mistaken belief or impression harbored by the appellant regarding the consequences of his plea does not establish that his plea was not knowingly or voluntarily made. Sabitino, supra. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ACCEPTED DEFENDANT'S PLEA ON ADVICE OF INEFFECTIVE APPOINTED COUNSEL WHERE COUNSEL FAILED TO CONDUCT ANY INVESTIGATION, REQUEST ANY HEARINGS, FAILED (SIC) ANY PRETRIAL MOTIONS ON APPELLANT'S BEHALF OTHER THAN A MOTION FOR A PSYCHOLOGICAL EXAM, FAILED TO DEVISE ANY DEFENSE STRATEGY WITH HIS CLIENT OR DISCOVER POTENTIAL EXCULPATORY EVIDENCE WHICH CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE OHIO AND UNITED STATES CONSTITUTIONS (SIC) (EXHIBITS A , B , C , E , AND F ). 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 appellant must first demonstrate 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.) Furthermore, we operate under the presumption that counsel's assistance was both reasonable and -9- professional. State v. Thompson (1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407, 416-417; see, also, Strickland, 446 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. In this assignment of error, appellant asserts that he received ineffective assistance of counsel because his appointed counsel, Mr. Damiani, did not adequately conduct discovery, and failed to request a bill of particulars or moved to suppress exculpatory evidence. Further, appellant asserts that as a result of his appointed counsel's disbarment, which was the direct result of unethical behavior in various civil suits, it follows that the representation received by him was also deficient. Appellant's arguments concerning discovery and a motion to suppress are without merit. It is appellant's duty, in an ineffective assistance claim, to affirmatively represent the facts and reasons his appointed counsel was deficient and how this deficiency was prejudicial. Moreover, the actions and inactions of an attorney relate directly to his or her trial strategy. Here, appellant merely asserts, by way of affidavit, that Mr. Damiani should have pursued other avenues in his defense. Outside of these assertions, appellant offers little else in support. Additionally, at 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. As a result, Damiani's choice of strategy did not prejudice appellant, and his representation is deemed competent. -10- Appellant's contention concerning Mr. Damiani's ineffectiveness due to his disbarment is without merit as well. The only evidence presented by appellant, outside of his own affidavit, concerns his attorney's disbarment proceedings for unethical actions in numerous unrelated civil cases. However, as a court, we cannot assume poor representation and unethical recommendations in this case just because Mr. Damiani acted so in other cases. Absent affirmative proof of unethical or ineffective behavior by Mr. Damiani in these proceedings, Mr. Damiani's actions must be considered competent. Accordingly, appellant's second assignment of error is overruled. Judgment affirmed. -11- 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. JOSEPH J. NAHRA PRESIDING JUDGE O'DONNELL, J., and McMONAGLE, TIMOTHY E., J., CONCUR. 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 .