COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73017 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : ROBERT BENJAMIN : OPINION : Defendant-Appellant : Date of Announcement of Decision: SEPTEMBER 3, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-337193 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor SHERRY F. McCREARY, Asst. Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR., ESQ. 75 Public Square Building Suite 1016 Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: This is a delayed appeal by defendant-appellant Robert Benjamin from his guilty plea to aggravated drug trafficking (R.C. 2925.03) and having a weapon while under disability (R.C. 2923.13) following a plea bargain. Defendant claims he was denied due process of law because he was not advised of his right to trial by jury, of the risk of fines and consecutive terms of his offenses, and the trial judge improperly participated in the plea bargaining. We find no error and affirm. We will address the defendant's assignments of error in the order presented and together where appropriate to our discussion. I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT PROPERLY INFORM DEFENDANT THAT HE HAD A RIGHT TO A TRIAL BY JURY IN ACCEPTING HIS PLEA. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT INFORM THE DEFENDANT CONCERNING FINES THAT COULD BE IMPOSED AND THEREAFTER IMPOSED FINES ON DEFENDANT. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED BY THE COURT TO CONSECUTIVE TERMS WHEN DEFENDANT WAS NOT PROPERLY ADVISED AS TO THE OFFENSES. In these assignments of error, defendant contends his guilty plea was not knowingly, intelligently or voluntarily made because: (1) he was not advised of his right to trial by jury; (2) he was not told of the fines that could be imposed; and (3) he was not informed of the consecutive nature of the sentences. 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 -3- 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 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. The right to trial by jury is a -4- constitutional right guaranteed by the United States Constitution. Boykin v. Alabama (1969), 395 U.S. 238, 243. 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. Defendant's claims that the trial court failed to properly advise him of his rights to trial by jury and compulsory process have no merit. The transcript of the plea hearing in this case clearly shows that the trial court personally addressed defendant and advised him of these rights: THE COURT: *** Let me explain a few things to you. You have been indicted on this case but you're presumed innocent and you have the right to a trial. We're here for trial in your case. You have an attorney who could cross-examineyour accusers and call witnesses to testify on your behalf. At this point you're presumed innocent and the State has the burden of proving your guilt beyond a reasonable doubt. So you could ask them to do that, demand they do that, and if they were able to convict you, they would. If they were unable to prove the essential elements against you beyond a reasonable doubt, you would be innocent. You have a right to confront your accusers and call witnesses to testify on your behalf, and you have a right to remain silent, and no one can comment on your failure to testify or compel you to testify. If convicted you have the right to appeal. By proceeding here today you're waiving these rights. You're admitting your guilt ***. -5- (Tr. 6). It is clear from the above excerpt from the record that the court advised defendant of his right to call witnesses on his own behalf and reiterated that statement to defendant later in the same paragraph. Defendant was told that he has an attorney who could cross-examine your accusers and call witnesses on your behalf. He was soon after told again that he had the right to call witnesses to testify on your behalf. As to defendant's claim that the court did not advise him of his right to a jury trial, the Supreme Court held in State v. Ballard (1981), 66 Ohio St.2d 473, paragraph two of syllabus, that: Failure to use the exact language contained in Crim.R. 11(C), in informing a criminal defendant of his constitutional right to a trial and the constitutional rights related to such trial, including the right to trial by jury, is not grounds for vacating a plea as long as the record shows that the trial court explained these rights in a manner reasonably intelligible to that defendant. (State v. Caudill, 48 Ohio St.2d 342, modified.) In Ballard, the trial court failed to use the language right to a jury trial as used in Crim.R. 11(C). However, the court informed the defendant of his right to a completely fair and impartial trial under the law. The Court reasoned: Therefore, we hold that a rote recitation of Crim.R. 11(C) is not required, and failure to use the exact language of the rule is not fatal to the plea. Rather, the focus, upon review is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant. To hold otherwise would be to elevate formalistic litany of constitutional rights over the substance of the dialogue -6- between the trial court and the accused. This is something we are unwilling to do. Id. at 480. See, also, State v. DeArmond (1995), 108 Ohio App.3d 239, paragraph six of syllabus by the court ( Under the totality of the circumstances demonstrated by the record, the defendant knowingly, voluntarily, and understandingly entered a plea of guilty despite the trial court's failure to give him explicit, oral advice with respect to his right to a jury trial. ). Similarly, in the instant case, the trial court informed the defendant that he had a right to a trial and that we're here for trial in your case. Under Ballard, the trial court is not required to use the exact language of Crim.R. 11(C). As long as the record shows that the trial court explained these rights in a manner reasonably intelligible to that defendant, the plea shall not be vacated. It is clear from the record that the trial court explained and referred to the right to a jury trial in a manner reasonably intelligible to the defendant. Furthermore, the language right to a trial used by the trial court is very similar to the language right to a completely fair and impartial trial under law which was found valid by the Supreme Court in Ballard, supra. Because the exact language of Crim.R. 11(C) is not required to be used, and because the trial court explained his right in a manner reasonably intelligible to him, defendant was aware and adequately informed of his right to a jury trial. -7- Defendant argues that the trial court never advised him of the existence of a fine and further failed to advise him of the forfeiture in open court. This argument is also without merit. The record shows the prosecutor explained the plea agreement to the trial court in defendant's presence and the subsequent colloquy between defense counsel and the court outlined the plea agreement, including the imposition of fines and forfeiture. The record states: MR. WISE [THE PROSECUTOR]: *** Your Honor, it's my understanding the defendant is withdrawing his previously entered plea of not guilty and entering a guilty plea to Count 1 of the indictment, which is aggravated trafficking, R.C. 2925.03. That would be a felony of the 2nd degree, punishable by 2, 3, 4, 5 to 15 years in prison, a discretionary fine up to $7500 and, I believe, it's also, Judge, a mandatory fine of $7500 as well. Your Honor, it's my further understanding the defendant is also going to be pleading guilty to count 4 of the indictment, which is having a weapon under disability, R.C. 2923.13. Furthermore, your Honor, there is a firearm specification which makes it a definite felony of the 4th degree. The firearm specification means he would have to serve a mandatory 3 years and, in addition, your Honor, having a weapon while under disability, the F4, is also nonprobationable and that would be one and a half, two, two and a half, three as a minimum, to a maximum of five years. In addition, your Honor, the defendant would have to forfeit all items seized by the police, which includes $12,528 in cash, a .45 caliber handgun, a .38 caliber handgun, a pager, a cellular telephone, another pager and another pager, and any other items seized by the police, your Honor. Your Honor, assuming a plea was forthcoming and that he forfeited the items previously enumerated, the State would -8- respectfully request to nolle Counts 2 and 3 of the indictment. Thank you. Your Honor, in addition, the defendant would have to forfeit his driver's license as well. THE COURT: Thank you very much. Mr. Richardson. MR. RICHARDSON [DEFENSE COUNSEL]: Yes, your Honor, the prosecutor has correctly articulated my understanding of the agreement. I believe at this time he will withdraw his previously entered plea of not guilty and enter a plea of guilty to Counts 1 and 4, and he will be willing to forfeit any rights he may have to the items which were seized. But in no way, because this was pursuant to a search warrant, should this be construed to negate the rights other individuals, or family, household members may have had to those items. Some things were seized which are in no way charged. THE COURT: Such as? MR. RICHARDSON: Some cam corder or other items. THE COURT: What about the cash? MR. RICHARDSON: Not listed in the indictment. He is willing to forfeit the cash, but -- THE COURT: He's forfeiting everything. MR. RICHARDSON: There are items not named in the indictment as possessing criminal tools. (Tr. 2-4). The prosecutor stated the terms of the plea agreement, which included the fact that there was a mandatory $7,500 fine and a discretionary fine. The prosecutor also listed the items which would be forfeited by defendant including $12,528 in cash, a .45 caliber handgun, a .38 caliber handgun, three pagers and a cellular -9- phone. Defendant's counsel then advised the court that the agreement, as stated by the prosecutor, was correct. There is no question on this record that defendant was aware of the terms of the plea agreement, including the fact that there was a mandatory fine as well as a discretionary fine. He had ample opportunity to advise the court that he did not understand that fines would be imposed or that he would forfeit the property seized. Defendant also argues that he was denied due process because the court failed to fully explain the potential sentence to be imposed on him. Specifically, defendant claims the court explained his sentence in such a manner as to leave him with the impression he would receive a concurrent sentence, and that the court failed to tell him he was facing a period of actual incarceration under former R.C. 2929.71. The transcript of the plea hearing shows the prosecutor advised the court of the potential sentence for the firearm specification as previously noted. The court advised defendant prior to his plea as follows: MR. WISE: *** Your Honor, it's my further understanding the defendant is also going to be pleading guilty to Count 4 of the indictment, which is having a weapon under disability, R.C. 2923.13. Furthermore, your Honor, there is a firearm specification as well as a violence specification which makes it a definite felony of the 4th degree. The firearm specification means he would have to serve a mandatory 3 years and, in addition, your Honor, having a weapon under disability, the F4, is also nonprobationable and that would be one and a half, two, two and a half, -10- three as a minimum, to a maximum of five years. *** * * * THE COURT: *** The weapons disability is a nonprobationable felony of the 4th degree, indefinite, three-year mandatory gun specification. I've indicated to your attorney I'm going to sentence you 4 to 15 on the drug count, do you understand that, concurrent? * * * THE COURT: I believe I was telling you, Mr. Benjamin, if you plead to the first count, you will get 3 years on the gun specification with one and a half to 5, and that I would run as far as the drug trafficking count is concerned, a concurrent 4 to 15. Do you understand that? THE DEFENDANT: Yes. THE COURT: On this basis do you wish to go forward with the plea? THE DEFENDANT: Yes. THE COURT: Are there any questions that you want to ask me? THE DEFENDANT: No. THE COURT: Is this plea freely, knowledgeably and voluntarily made? THE DEFENDANT: Yes. (Tr. 7-8). THE COURT: Here is the situation. If you enter this plea today, you're going to be incarcerated today. Starting today. The sentence is going to be 3 plus one and a half to 5 concurrent, 4 to 15. I've placed this on the record and made it abundantly clear it's not probationable on the F4 and I'm not going to afford you any kind of probation or shock -11- probation on the drug charge. You have to do your time ***. (Tr. 8-9). THE COURT: *** Now, if you are going to plead here I'm not going to put you back on the street. This is a mandatory period of incarceration. You must go. You cannot be given probation. And I have a policy if a person must go, they plead and go. What am I going to put you back on the street for? * * * We've outlined your rights, possible penalties and plea bargain, and the decision at this point is up to you. Do you wish to plead guilty or go to trial on this case? THE DEFENDANT: Guilty. THE COURT: Then, how do you plead in Count No. 1 to aggravated trafficking with a furthermore clause? This would be a felony of the 2nd degree. How do you plead? THE DEFENDANT: Guilty. THE COURT: How do you plead to Count 4, having weapon while under disability with a firearm specification and with the violence specification which references the attempted carrying concealed weapon charge that you pled to on the 2ndday of February 1993? This case as indicted is an indefinite felony of the 4th degree with mandatory three-year period of incarcerationwith the gun specification. How do you plead? THE DEFENDANT: Guilty. (Tr. 11-12). It is evident from this colloquy that defendant was fully informed of the specific offenses and the mandatory term of incarceration for the firearm specification. In support of his argument, defendant cites State v. Nickerson (Jan. 18, 1990), -12- Cuyahoga App. No. 56424, unreported and State v. Walker (Jan. 20, 1994), Cuyahoga App. No. 63437, unreported. In Nickerson, this Court vacated defendant's guilty plea and held that the failure to inform a defendant that a period of incarceration will contain actual time does not rise to the level of substantial compliance with Crim.R. 11(C)(2). Id., at 3. In Walker, this Court also vacated defendant's guilty plea finding that defendant was not informed that he was pleading guilty to an aggravated felony which carried a mandatory term of incarceration of two to ten years pursuant to R.C. 2929.11(B)(3)(a) rather than one, one and a half or two years pursuant to R.C. 2929.11(D)(1). Further, this Court found prejudice to the defendant because it was obvious his plea would not have otherwise been made had he known he was required to serve more than 18 months. In State v. Johnson (1988), 40 Ohio St.3d 130, the Ohio Supreme Court stated in its syllabus: Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather then concurrently, is not a violation of Crim.R. 11(C)(2) and does not render the plea involuntary. Recently following Johnson, this Court in State v. Carter (Jan. 16, 1997), Cuyahoga App. Nos. 70260 & 70261 stated: Moreover, appellant cannot complain that Crim.R. 11(C) was violated by the imposition of consecutive sentences. All that is required by Crim.R. 11(C) prior to entering a plea is that the defendant be advised as to the maximum penalty for each charge. State v. Johnson (1988), 40 Ohio St.3d 130, 133, 532 N.E.2d 1295, 1298. The decision of imposing sentences consecutively or concurrently is -13- within the discretion of the trial court and cannot be addressed until a plea has been accepted in compliance with Crim.R. 11. Id. at 133-34; 532 N.E.2d at 1298-00. In the instant case, the prosecutor stated at the beginning of the plea hearing that defendant would have to serve a mandatory 3 year term for the firearm specification. The defendant was also told by the court several times that the 3 year term for the firearm specification was mandatory. In addition to being told that this was a mandatory period of incarceration, he was told [y]ou have to do your time, you're going to be incarcerated today, and I'm not going to put you back on the street. Further, the court advised defendant on more than one occasion that he would receive a mandatory term of 3 years plus the one and one half to five year sentence on count 4 to run concurrent to the 4-15 years on count one. (Tr. 7, 8, 12). Defendant was also asked by the court if he had discussed the potential sentences with his attorney and defendant responded Yes. (Tr. 8). The court also gave defendant the opportunity to ask questions, however, defendant had no questions. (Tr. 8). The record shows defendant was well advised and well aware of the offenses to which he was pleading guilty as well as the potential sentences, including the mandatory time for the gun specification. Accordingly, there was no Crim.R. 11(C) violation in this case. Assignments of Error I, II and III are overruled. IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIBUNAL WHERE THE COURT UNREASONABLY -14- PARTICIPATED IN THE PLEA BARGAINING PROCESS URGING DEFENDANT TO PLEAD GUILTY. In this assignment of error, defendant argues that the trial court unreasonably participated in the plea bargaining process, thereby influencing his decision to plead guilty. Specifically, defendant claims the court urged him to plead guilty because the court claimed he had been improperly indicted in this case. He also complains the court gave him 120 seconds to decide if he was going to plead or go to trial. We find no merit to these arguments. A reading of the entire hearing transcript clearly shows that the trial judge was not a participant in the plea bargaining process. The prosecutor stated the terms of the plea agreement and the potential penalties on the record and defense counsel confirmed that the agreement was as stated by the prosecutor. The court then reiterated the terms of the agreement and advised defendant what the sentence would be. It is clear from the above quoted sections of the transcript that the court was about to take defendant's plea when the prosecutor asked for a sidebar conference. The court's remarks after the sidebar conference specifically address the defendant's apparent request to be released pending sentencing to get his affairs in order. The court refused, advising defendant if he entered a plea at that time he would immediately be incarcerated. Defendant was then given 120 seconds to make up his mind what he wanted to do. (Tr. 8-9). There was no participation in the plea bargaining process by the trial court in this case. A firm -15- agreement had been reached prior to the Rule 11 hearing. The judge's remarks came after the agreement was set forth on the record and after defendant indicated he was ready to plead. Defendant cites State v. Byrd (1980), 63 Ohio St.2d 288 in support of his assertion. In Byrd, the trial judge persuaded the defendant's mother and sister to talk with the defendant to get him to change his plea. The judge subsequently met with the defendant in chambers along with a deputy sheriff, a probation officer and the prosecutor. While in chambers, the trial judge actively participated in negotiating the plea bargain. This was all done without notice to defense counsel. The Supreme Court held that defendant's guilty plea was void. However, the Court refused to find that a trial judge's participation in plea negotiations per se renders a plea constitutionally invalid. The Court stated: Although this court strongly discourages judge's participation in plea negotiations, we do not hold that such participation per se renders a plea invalid under the Ohio and United States Constitutions. Such participation, however, due to the judge's position in the criminal justice system presents a great potential for coerced guilty pleas and can easily compromise the impartial position a trial judge should assume. As a consequence we hold that a trial judge's participation in the plea bargaining process must be carefully scrutinized to determine if the judge's intervention affected the voluntariness of the defendant's guilty plea. Ordinarily, if the judge's active conduct could lead a defendant to believe he cannot get a fair trial because the judge thinks that a trial is a futile exercise or that the judge would be biased against him at trial, the plea should be held to be involuntary and void under the Fifth Amendment and Section 10, Article I of the Ohio Constitution. -16- Id. at 293-294. In this case, the trial court advised defendant he would not be released pending his sentencing. Defendant was continuously asked by the court if he understood, if he had any questions and if he wanted to go forward with the plea. The court also informed the defendant that he was improperly indicted and if he chose not to plead under the current indictment, he would risk being re-indicted for an aggravated felony with a longer potential term. By making this disclosure, the defendant was fully informed of the all the effects and circumstances surrounding his plea. As a result, defendant made an informed and intelligent decision to plead guilty. At no time did the judge's participation or conduct lead defendant to believe that he could not receive a fair trial if he chose not to plead. In fact, the judge's conduct allowed defendant to make a better knowledgeable and intelligent decision to enter his plea of guilty. Assignment of Error IV is overruled. Judgment affirmed. -17- 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 Court of Common Pleas 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. SPELLACY, J., CONCURS. KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART. (SEE CONCURRING AND DISSENTING OPINION ATTACHED). JAMES M. PORTER PRESIDING 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 .