COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72762 STATE OF OHIO, : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : : OPINION HORACE COLLIER, : : Defendant-Appellant : : : : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-332524 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID ZIMMERMAN Assistant Prosecuting Attorney Courts Tower--Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: WILDON V. ELLISON 34950 Chardon Rd., Suite 210 Willoughby Hills, Ohio 44094 O'DONNELL, TERRENCE, J.: Horace Collier filed this delayed appeal from his April 23, 1996 conviction for drug abuse, alleging the trial court erred in -2- accepting his guilty plea and in imposing incarceration and a fine. After reviewing the record and the law, we find these assignments of error have no merit, and we therefore affirm the judgment of conviction. The record before us reflects that at the time of his arrest, police were alerted that Collier threw something under his car, and upon removing him from the car, they discovered a crack pipe containing some cocaine residue on his person. After being indicted for drug abuse with a violence specification, Collier pled guilty to an amended indictment which deleted the violence specification, making the offense a felony of the third degree. After obtaining a pre-sentence investigative report, the court sentenced Collier to a term of two years incarceration at Lorain Correctional Institution and imposed a $2500 fine. Collier now appeals and presents the following assignments of error: I. THE COURT ERRED TO THE PREJUDICE OF APPELLANT IN IMPOSING A FINE BECAUSE THE COURT DID MAKE A FINDING THAT DEFENDANT WAS INDIGENT AS REQUIRED PURSUANT TO R.C. 2925.11(E)(5) AND SHOULD HAVE NOT IMPOSED THIS FINE. Collier challenges the imposition of the $2500 mandatory fine claiming indigency, while the state urges the court complied with R.C. 2925.11(E)(5) and properly imposed the mandatory fine. In determining whether or not the court erred in this regard, we recognize that R.C. 2925.11(E)(5) states in relevant part: No court shall impose a mandatory fine * * * upon an offender who alleges, in an affidavit filed with the court prior to his sentencing, that he is indigent and unable to pay any mandatory fine * * * if the court -3- determines the offender is an indigent person and is unable to pay the fine. (Emphasis added). Here, at the time of sentencing, not only did the appellant fail to file an affidavit of indigency, but also the transcript reflects that defense counsel told the court that his client had a job. Accordingly, this assignment of error is overruled. The second and third assignments of error are concerned with the court's acceptance of the appellant's plea and state: II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN IT ACCEPTED DEFENDANT'S PLEA WHEN THE INDICTMENT WAS DEFECTIVE IN THAT IT STATED THE DEFENDANT HAD A PRIOR CONVICTION ON NOVEMBER 25, 1990, IN CASE NO. CR 243894 OF VIOLATING R.C. 2925.23 WHEN THIS SENTENCE WAS RENDERED VOID AND HE WAS RESENTENCED WITHOUT COUNSEL, RENDERING THE CONVICTION UNUSABLE FOR ENHANCEMENT. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT AND HE WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ACCEPTED HIS PLEA WHEN THE INDICTMENT WAS DEFECTIVE BECAUSE THERE WAS NO MEASURABLE AMOUNT OF COCAINE WHICH COULD HAVE BEEN THE SUBJECT OF PROSECUTION. Collier contends the court erred in accepting his plea on two bases: one, his prior conviction had been rendered unusable for enhancement, and two, police found no measurable amount of cocaine residue in his possession. Crim.R. 11(B)(1) refers to the effect of a guilty plea and states that, The plea of guilty is a complete admission of the defendant's guilt. Here, the transcript fails to demonstrate that Collier raised any objection either to any defect in the indictment or the amount of cocaine recovered by the police at the time of his arrest. It -4- is well recognized that any error not presented to the trial court is waived and cannot be presented for the first time on appeal. See State v. Loza (1994) 71 Ohio St.3d 61, 76. In this case, the record reflects that not only did Collier completely admit guilt by virtue of his guilty plea, but that he also waived the issue on appeal by not raising the objection at the trial court level. Accordingly, we find no merit in these assignments of error, and they are overruled. Collier's fourth assignment of error states: IV. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED TO A TERM OF IMPRISONMENT RATHER THAN BEING SENTENCED TO CONDITIONAL PROBATION, DRUG ABUSE TREATMENT AND COUNSELING AS MANDATED BY R.C. 2925.11(G) FOR A DRUG DEPENDANT PERSON. Collier complains the court violated his due process rights by imposing a term of incarceration instead of granting him conditional probation and rehabilitative treatment as is, almost mandated by R.C. 2925.11(G). The state contends Collier has intentionally misrepresented the applicable law in this case. R.C. 2925.11(G)(1)(a) states: In lieu of sentencing an offender, who has pleaded guilty * * * prior to the commencement of the trial in the criminal action, to a definite or indefinite term of imprisonment * * * the court may place the offender on conditional probation * * *. Our interpretation of this section of the code is that the court is vested with wide discretion to consider alternative forms of punishment for an offender and that no specific directive -5- mandates imposition of conditional probation. Accordingly, this assignment of error is not well taken and it is overruled. Judgment affirmed. -6- 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. PATRICIA A. BLACKMON, A.J., and JAMES M. PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .