COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72813 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAMONT ARNOLD : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-315763 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: ROBERT J. CHRISTYSON (#0031089) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN (#0002847) 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant Lamont Arnold ( appellant ) appeals from his plea of guilty to one count of aggravated murder, three counts -2- of attempted murder, and one count of kidnapping. Appellant assigns the following error for review: I. THE TRIAL COURT ERRED BY ACCEPTING A PLEA OF GUILT WHEN THE DEFENDANT HAD NOT BEEN FULLY INSTRUCTED AS TO HIS RIGHTS UNDER THE LAWS OF OHIO AND THE FEDERAL CONSTITUTION SO THAT THE PLEA IS MADE KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On October 27, 1994, appellant was indicted for one count of aggravated murder in violation of R.C. 2903.01(A), one count of aggravated murder in violation of R.C. 2903.01(B), three counts of attempted murder in violation of R.C. 2923.02/2903.02, two counts of kidnapping in violation of R.C. 2905.01, and one count of aggravated robbery in violation of R.C. 2911.01. The aggravated murder counts included three mass murder specifications, one felony murder specification, and one firearm specification. The remaining counts all had firearm specifications. The charges stemmed from an incident which occurred on September 24, 1994, when appellant shot several bullets into a house while attempting to steal an automobile. Deborah Ann Bailey was killed while sitting in her home. On March 29, 1995, appellant appeared before the trial court and entered a plea of guilty to the felony murder charge. All specifications for that count except the firearm specification were deleted. Appellant also pled guilty to three counts of attempted murder and one count of kidnapping, all with firearm -3- specifications. The other counts and another criminal case against appellant were nolled. The trial court accepted appellant's plea of guilty. II. In his assignment of error, appellant contends his plea was not a voluntary, knowing, and intelligent act because the trial court failed to explain the elements of the offenses charged to appellant before accepting appellant's plea of guilty. Appellant argues that, because of this, the trial court did not substantially comply with the dictates of Crim.R. 11(C). Crim.R. 11(C) provides in pertinent part: (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. The underlying purpose of Crim.R. 11(C) is to convey certain information to the defendant in order to allow him or her to make -4- a voluntary and intelligent decision of whether or not to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480. Two separate standards are applied when a reviewing court considers a claim that a trial court did not satisfy its duty under Crim.R. 11. State v. Anderson (1995), 108 Ohio App.3d 5, 8-9. With respect to constitutional rights, a trial court must strictly comply with the dictates of Crim.R. 11(C). State v. Colbert (1991), 71 Ohio App.3d 734. However, a trial court need not use the exact language found in that rule when informing a defendant of his constitutional rights. Rather, a trial court must explain those rights in a manner reasonably intelligible to the defendant. Ballard, supra, at paragraph two of the syllabus. A trial court must ensure that a criminal defendant realizes what he or she is giving up by entering a plea of guilty. The standard is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford (1970), 400 U.S. 25, 31. For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required. Rather the trial court must substantially comply provided no prejudicial effect occurs before a guilty plea is accepted. State v. Stewart (1977), 51 Ohio St.2d 86. Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implication of his plea and the rights he is waiving. State v. Nero (1990), 56 Ohio St.3d 106, 108. Appellant asserts that the essential element of R.C. -5- 2903.01(A) is that of prior calculation and design. Because the trial court did not explain the difference between aggravated murder pursuant to R.C. 2903.01(A) and murder under R.C. 2903.02, which only requires purpose to cause another's death, appellant argues his plea was not made in compliance with Crim.R. 11. Although appellant's argument centers on R.C. 2903.01(A), that count of the indictment was nolled. Appellant pled guilty to felony murder pursuant to R.C. 2903.01(B) which states: No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape. Therefore, there is no element of prior calculation and design in felony murder. The only other difference between felony murder and murder is the presence of one of the enumerated offenses. Appellant also pled guilty to kidnapping, which is one of the offenses listed in R.C. 2903.01(B). Only the firearm specification remained. The capital specification was deleted. Appellant's argument is specious as there was no element of prior calculation and design present in the offenses to which appellant pled guilty. It is not always necessary that the trial court advise a defendant about the elements of the crime as long as the totality of the circumstances are such that the trial court is warranted in determining that the defendant understands the charge. State v. Rainey (1982), 3 Ohio App.3d 441. A detailed recitation of the elements of the charge is not required under Crim.R. 11(C). State -6- v. Swift (1993), 86 Ohio App.3d 407. Appellant's attorney represented to the trial court that there was a factual basis for the plea and that the plea was voluntary. The trial court explained to appellant that the state had the burden of proving him guilty beyond a reasonable doubt. Appellant also pled guilty to kidnapping. Based upon the totality of the circumstances, appellant understood the elements of aggravated murder pursuant to R.C. 2903.01(B). The trial court substantially complied with Crim.R. 11. Appellant's assignment of error lacks merit. Judgment affirmed. -7- 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and DIANE KARPINSKI, J. CONCUR LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .