COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72817 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND JOSEPH ASTRONASKAS, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-349054 JUDGMENT: Affirmed as Modified. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LANCE T. MASON Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: RICHARD AGOPIAN 800 Standard Building 1300 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant Joseph Astronaskas appeals from his guilty plea conviction to trafficking in cocaine with a schoolyard specification pursuant to a plea bargain. Defendant was indicted by the grand jury on four counts of trafficking in crack cocaine and one count of possession of criminal tools. Because the offenses allegedly occurred within 1000 feet of a school, two of the drug trafficking charges were accompanied by schoolyard specifications. The charges arose from a series of controlled crack cocaine drug purchases from defendant. After defense counsel was appointed, the matter proceeded to a guilty plea hearing on May 7, 1997. As part of the plea bargain, the prosecution agreed to dismiss four charges in return for defendant's guilty plea to one count of drug trafficking with the accompanying schoolyard specification. The trial court conducted the guilty plea hearing in compliance with Crim.R. 11. During the hearing, defendant pled guilty and admitted that he committed the offense to which he was pleading guilty. The court found that defendant's plea was knowingly, voluntarily, and intelligently entered and that he was guilty of the offense. The trial court thereafter referred defendant for a presentence report and a psychiatric evaluation. On the date of sentencing, defendant, through newly retained counsel, sought to vacate his guilty plea. Defendant argued that, after his guilty plea, he measured the distance from the schoolyard to the site of the fence and concluded that it was 1,049 feet so -3- that he was not guilty of the schoolyard specification. The court conducted a hearing on defendant's motion to withdraw his plea, but thereafter denied the motion. The trial court ultimately sentenced defendant to serve four years imprisonment and to pay a $200 fine and costs. Through new appellate counsel, defendant timely appeals raising three assignments of error. Defendant's first assignment of error follows: THE TRIAL COURT ERRED IN FAILING TO ADVISE THE APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO ASSISTANCE OF COUNSEL AT TRIAL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. This assignment lacks merit. Defendant concedes that the trial court fully complied with Crim.R. 11 during the sentencing hearing, but contends that it improperly failed to inform him that, if he proceeded to trial, he had the right to be represented by counsel. The record shows that defendant was appointed counsel, who represented him at the plea hearing. The transcript of the guilty plea hearing reveals that, at the outset, defense counsel stated he had informed defendant of his constitutional rights. In open court the trial judge thereafter also explained on the record numerous specific rights. Contrary to defendant's argument, the trial court specifically advised defendant that he had the right [t]o have your lawyer cross-examine each and every witness that would be called by the State of Ohio. Counsel represented him at the guilty plea hearing. Nothing in the record suggests that the lawyer who the trial judge said could cross-examine witnesses was other than the same lawyer -4- representing him at the guilty plea hearing. Nor does the record suggest that appointed counsel's representation would end prior to trial. The trial judge expressly stated that, among defendant's rights, was the right for his counsel to cross-examine witnesses presented against him at trial. The unmistakable implication of this statement was that defendant had the right to counsel at trial. Defendant stated that he understood this right and did not ask the trial court any questions, despite the court's invitation to do so if he did not understand anything during the proceedings. In fact, based on its conversation with defendant, the trial court expressly found, contrary to the newly minted argument of appellate counsel, that [d]efendant has knowingly and voluntarily entered his plea with a full understanding of his constitutional and trial rights. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED BY IMPOSING A MANDATORY SENTENCE OF FOUR YEARS. This assignment is well-taken in part. Defendant argues that the trial court improperly sentenced him to a mandatory term of four years imprisonment for trafficking in more than one but less that five grams of crack cocaine with an accompanying schoolyard specification. Defendant also complains that his sentence exceeded the statutory minimum. -5- Trafficking in more than one but less than five grams of crack cocaine, along with an accompanying schoolyard specification, is a third degree felony, with a presumption of a prison term for the offense. R.C. 2923.05(C)(4)(c). R.C. 2929.14(A)(3) specifically provides that third degree felonies are punishable by imprisonment for a period from one, two, three, four or five years. The sentencing transcript reveals that defendant appeared before the probation department for his presentence report, but did not appear for a drug evaluation. Although defendant disputed making the statements, his presentence report indicates that he threatened to break his first attorney's nose upon release from prison, and to sue the city of Cleveland for failing to refer him to drug treatment. During the sentencing hearing, the trial court sentenced defendant to four years imprisonment and imposed a $200 fine and costs. The trial court's subsequent journal entry imposing sentence referred to the term of imprisonment as a mandatory term. Defendant has failed to show any error concerning the length of his term of imprisonment. R.C. 2929.14 specifically provides for imprisonment from a period from one to five years. The four- year period imposed exceeded the one-year minimum, but was not the maximum permissible sentence. Contrary to defendant's argument, the fact that he admitted to committing the offense within 1000 feet of a school was an aggravating circumstance that warranted punishment exceeding the statutory minimum. The length of sentence imposed, therefore, was within the trial court's discretion. -6- The court did not indicate at the sentencing hearing, however, that the entire term of four years was mandatory. The record shows that the first time the trial court used the term mandatory was in its journal entry drafted after the sentencing hearing. The sentencing entry should reflect the sentence imposed on the defendant at the hearing and the trial court is not permitted, in defendant's absence, to alter the sentence imposed by subsequent journal entry. Crim.R. 32. We vacate, therefore, the term mandatory from the trial court's sentencing entry. Accordingly, defendant's second assignment of error is well- taken in part. Defendant's third assignment of error follows: THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE APPELLANT TO VACATE HIS GUILTY PLEA. This assignment lacks merit. Defendant contends the trial court abused its discretion by denying his presentence motion to withdraw his guilty plea. As a result of our review of the record, we find that defendant has failed to show the trial court abused its discretion by denying his motion. The record shows that the trial court conducted a hearing of defendant's motion. There is nothing in this record to indicate or even imply uncertainty in the plea or that he was dissatisfied with the investigation regarding the measurement of the distance between the place where he sold the crack cocaine and the Orchard Elementary School. Without expressing reservation of any kind during the guilty plea hearing, defendant pled guilty to the -7- schoolyard specification, which indicated the offense occurred within 1000 feet of the school. In return, the prosecution completely dismissed four other felony charges. The affidavit of defendant's friend, submitted in support of the motion after the finding of guilt, indicates that after sentencing he used a 100 foot tape to measure the distance from the school to the area where the offense occurred. Based on the former attorney's description of where the events took place,1 the shortest of their three measurements was 1,049. Without any explanation why the measurement was not made earlier, the trial court was not required to accept the belated attempt to raise this issue or to grant defendant's request to withdraw his plea. Accordingly, defendant's third assignment of error is overruled. Judgment affirmed as modified. 1 The exact location of where the events occurred is not in the record. -8- 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 as modified, 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. ANN DYKE, P.J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI 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 .