COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73071 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : MAXIE SCOTT : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-346156 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellee: Defendant-Appellant: STEPHANIE TUBBS JONES UCHE MGBARAHO, ESQ. Cuyahoga County Prosecutor 2000 Standard Building TIMOTHY G. DOBECK 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: Maxie Scott appeals from a judgment of the common pleas court entered pursuant to his plea of guilty to the lesser but included offense of murder arising out of the shooting death of Alan Thomas, alleging the court erred when it accepted his plea and failed to comply with the provisions of Crim.R. 11. We reject these contentions and, for the following reasons, affirm the judgment of conviction. Following an all-night card game on December 16, 1996, during which the victim, Alan Thomas, won five or six hundred dollars from Scott, the two were driving to school when Thomas allegedly taunted Scott about winning his money, and Scott reacted by shooting Thomas twice in the head with a 9 mm Larcin automatic handgun. Scott then drove to his girlfriend's apartment where he dragged Thomas' body into the hallway, took money from Thomas' pocket, and, after visiting his mother, turned himself in to Cleveland police and confessed to killing Thomas. The grand jury thereafter indicted Scott on two counts of aggravated murder: one alleging prior calculation and design, and the other alleging murder while committing aggravated robbery, and also on a third count alleging aggravated robbery. However, on July 18, 1997, Scott pled guilty to murder, a lesser included offense of count one with a firearm specification, the court nolled the remaining counts and sentenced him to a term of three years actual incarceration for the firearm specification, prior to and consecutive with a term of fifteen years to life for the murder. -3- Scott now appeals raising two assignments of error for our consideration in connection with that plea agreement which state: I. THE TRIAL COURT ERRED BY ACCEPTING APPELLANT'S GUILTY PLEAS WHEN THE COURT KNEW THAT APPELLANT COULD NOT BE CONVICTED OF THE OFFENSE CHARGED. II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF APPELLANT BY FAILING TO ADVISE THE MAXIMUM CONSEQUENCE OF AND THE RIGHTS WAIVED BY THE PLEA OF GUILTY TO THE OFFENSE OF MURDER, SUCH BEING REQUIRED BY CRIM.R. 11(C)(2) AND CONCEPTS OF DUE PROCESS OF LAW AMENDS V, XIV, UNITED STATES CONSTITUTION. Scott contends the trial court erred in accepting his guilty plea, alleging that the court knew from the contents of his confession that he could not have been convicted of aggravated murder with prior calculation and design, and further alleging that the court failed to comply with Crim.R. 11 in accepting his guilty plea, because the court did not determine that he understood the nature of the murder charge, did not inform him of its intention to impose sentence that same day, and misstated the amount of the fine for murder as $20,000 rather than $15,000. The state urges that no error occurred in accepting Scott's guilty plea, because his confession is not part of the record, and because the trial court substantially complied with Crim.R. 11. The issue then presented for our review concerns whether the trial court erred in accepting Scott's guilty plea to the lesser included offense of murder. -4- In Boykin v. Alabama (1969), 395 U.S. 238, the court held that a trial court, when accepting a plea, is obligated to determine that an accused is knowingly, intelligently, and voluntarily waiving his constitutional rights, specifically, the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. In State v. Stewart (1977), 51 Ohio St.2d 86, the Ohio Supreme Court determined that substantial compliance with Crim.R. 11(C)(2) satisfies this constitutional requirement. See, also, State v. Johnson (1988), 40 Ohio St.3d 130; State v. Nero (1990), 56 Ohio St.3d 106. When a trial court or appellate court is reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim.R. 11 have been followed. See State v. Kelley (1991), 57 Ohio St.3d 127, at 128. That rule states: In felony cases the court may refuse to accept a plea of guilty * * * 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 * * * 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 -5- 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. In this case, the state indicted Scott on two counts of aggravated murder: one involving prior calculation and design and the other while committing aggravated robbery. Although appellant contends his confession does not allege facts sufficient to support a conviction for aggravated murder with prior calculation and design as charged in count one, we recognize that the state would not be limited to the contents of that confession in its presentation of evidence if that matter had been litigated. More significantly, however, the contents of that confession may have supported a conviction for aggravated murder while committing aggravated robbery, as charged in count two of the indictment. Nonetheless, instead of proceeding to trial on those indictments, Scott chose to plead guilty to the lesser but included offense of murder and has waived his rights in connection with his plea. Here, the transcript reveals the following colloquy occurred between the court and Scott at the time of the plea: THE COURT: Count 1 as amended, the amendment being the deletion of the wording of prior calculation and design, renders Count 1 a felony called murder, which would be in violation of Ohio Revised Code 2903.02, punishable by a possible term of incarceration of 15 years to life. The gun specification attached thereto adds to that 15 to life sentence a time period of three years. In addition, there is a fine possible of up to $20,000. Do you understand that? THE DEFENDANT: Yes. -6- THE COURT: Now, this is a non-proba- tionable offense, which means you must go to prison. You understand that? THE DEFENDANT: Yes. THE COURT: While you are in prison, should you misbehave while incarcerated, the rules infraction board of the institution can give you additional time in 15, 30, 60 and 90 day increments for any rules you violate while under their supervision. That would be in addition to the time I levy today. (Emphasis added). Understand that? THE DEFENDANT: Yes * * * THE COURT: Do you have any questions about this case or this hearing which you would like to have answered at this time? THE DEFENDANT: No, Your Honor. THE COURT: Very well then. Mr. Scott, how do you plead to Count 1 of your indictment, which charges that on or about December 16th of 1996 you unlawfully and purposely caused the death of another, to wit: Allen Thomas? THE DEFENDANT: Guilty. THE COURT: And there is a firearm specification. That states: The grand jurors further find and specify that the offender had a firearm on or about his person, or under his control, while committing the offense, and displayed the firearm, brandished the firearm, indicated he possessed the firearm, or used it to facilitate the offense. Did you have a gun with you when this offense took place? THE DEFENDANT: Yes. THE COURT: Are you giving me this plea and the acknowledgment of specification of -7- your own free will? THE DEFENDANT: Yes. Thus, the transcript reflects that the court explained the nature of the murder charge to Scott, informed him of its intention to impose the mandatory maximum sentence in the case, of 15 years to life imprisonment, satisfied itself that Scott had no questions about the matter, ascertained information from Scott regarding use of the weapon, and determined that he acted of his own free will in entering the guilty plea. Although the trial court misinformed Scott by overstating the amount of the fine it could have imposed, Scott was not affected by the misstatement because he nonetheless entered a plea voluntarily to the greater potential fine; however, since the trial court did not impose any fine in its sentence, no prejudice occurred to him as a result of this error. Further, our review of the entire transcript reveals the court substantially complied with the provisions of Crim.R. 11(C)(2). Accordingly, we overrule these assignments of error, and affirm this conviction. Judgment affirmed. -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, 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. TIMOTHY E. McMONAGLE, J., LEO M. SPELLACY, J., CONCUR PRESIDING 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 .