COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73306 STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND STEPHEN JOHN ROE : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT : AUGUST 13, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Case No. CR-271309 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Christopher L. Frey, Esq. Assistant Cuyahoga Cty. Pros. 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 For defendant-appellant: Stephen John Roe, Inmate Inmate No. 242-408 P.O. Box 901 Leavittsburg, Ohio 44430 -2- MICHAEL J. CORRIGAN, J.: Stephen John Roe, defendant-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas, which denied his petition for post-conviction relief. Defendant-appellant assigns three errors for review. This court, finding no error, affirms the decision of the trial court. Between June and September of 1991, defendant-appellant was indicted on a number of charges including grand theft (R.C. 2913.02), aggravated robbery (R.C. 2911.01), receiving stolen property (R.C. 2913.15), carrying a concealed weapon (R.C. 2923,12), and drug abuse (R.C. 2925.11). On October 28, 1991, defendant-appellant pled guilty to petty theft (Case No. 265246), two counts of aggravated robbery (Case No. 269704), receiving stolen property/motor vehicle, receiving stolen property, and carrying a concealed weapon (Case No. 268549), and aggravated robbery (Case No. 271309). Defendant-appellant was sentenced to 8 to 25 years for two counts of aggravated robbery which were to run consecutive (Case No. 269704). All other sentences defendant-appellant received did not exceed, and were to run concurrent with the sentence imposed in Case No. 269704. Defendant-appellant did not appeal the judgment to the court of appeals but instead filed a petition to vacate or set aside the sentence pursuant to R.C. 2953.21. Defndant-appellant argued the trial judge was impartial in that he mislead defense counsel into believing defendant-appellant's sentence in Case No. 269704 would be only 8 to 25 years for two counts of aggravated robbery to run -3- concurrently instead of consecutively. Defendant-appellant also claimed he did not receive effective assistance of counsel. Attached to the motion for post-conviction relief was a letter from trial counsel stating that he had been mislead by the trial judge. Subsequently, defendant-appellant filed a motion to supplement his petition with the affidavit of trial counsel stating the same. On January 24, 1997, defendant-appellant's petition was denied. On September 10, 1997, the trial court issued its findings of fact and conclusions of law. Defendant-appellant timely appeals. Since defendant-appellant's first and second assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION OF EFFECTIVE ASSISTANCE OF COUNSEL, BRINGING INTO QUESTION WHETHER COUNSEL WAS INEFFECTIVE CONCERNING BEING MISLED BY TRIAL JUDGE OF TYPE OF SENTENCE TO BE IMPOSED, INDUCED APPELLANT INTO ENTERING A GUILTY PLEA. SUCH MISLEADING WAS PREJUDICIAL AND RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. II. WHETHER TRIAL COURT ABUSED IT'S DISCRETION BY VOLUNTARILY ENTERING INTO PLEA NEGOTIATIONS, THEN BREACHING THE PLEA AGREEMENT AND SENTENCING APPELLANT TO A HARSH SENTENCE FOR A FIRST TIME OFFENDER. JUDGE HAS ACTIVELY PARTICIPATED IN PLEA AGREEMENT IN VIOLATION OF DUE PROCESS. Defendant-appellant argues the trial court erred in denying his petition for post-conviction relief. Specifically, defendant- appellant argues the affidavit by his trial counsel establishes not -4- only the ineffective assistance of counsel, but also that the trial judge impermissibly participated in the plea bargain negotiations. Petitions for post-conviction relief are governed by R.C. 2953.21 which states in pertinent part: (C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file a findings of fact and conclusions of law with respect to such dismissal. In this case, defendant-appellant argues he has been denied his right to effective assistance of counsel. To establish his claim, defendant-appellant attached an affidavit from trial counsel stating that he believed his client would receive a concurrent sentence and therefore, did not request a pre-sentence investigation report. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. -5- Recently, this court held in State of Ohio v. Gawloski (August 14, 1997), Cuyahoga App. No. 71659, unreported, that an affidavit from defense counsel stating he/she believed a defendant would be receiving a lesser sentence is insufficient to rebut the record from a guilty plea hearing in which the petitioner pled guilty and averred that no promises had been made. Similarly, in this case, the hearing transcript establishes not only that the trial court correctly explained to defendant- appellant the potential sentence for each count in the case, but also that defendant-appellant indicated there were no promises made. In keeping with the reasoning in Gawloski, supra, we find defendant-appellant did not present sufficient evidence that his guilty plea was not knowing and voluntary. Accordingly, defendant- appellant cannot establish that he was prejudiced by the performance of his trial counsel. See, also, State v. Kapper (1983), 5 Ohio St.3d 36. Defendant-appellant's first assignment of error is overruled. Moreover, we note that after a review of the hearing transcript and the affidavit attached to the petition for post- conviction relief, defendant-appellant has again failed to establish that the trial court's minimal participation in the plea discussions constitutes coercion and/or impartiality by the court. See Machibroda v. United States (1962), 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; State of Ohio v. Shell (October 30, 1997), Cuyahoga App. No. 71736, unreported. Defendant-appellant's second assignment of error is overruled. -6- Defendant-appellant states as his third assignment of error: III. TRIAL COURT FAILED TO COMPLY WITH (CRIM. R.11(c)(A))(SIC); TRIAL COURT STATED ON RECORD THAT APPELLATE (SIC) WAS INFORMED WHETHER SENTENCES COULD BE SERVED CONSECUTIVELY OR CONCURRENTLY. Defendant-appellant argues the trial court failed to comply with the mandates of Crim.R. 11 by failing to inform and/or explain the differences between consecutive and concurrent sentences. We disagree. The taking of a plea will be affirmed on appeal so long as the reviewing court determines that the trial court substantially complied with the requirements of Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 86. "Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. Id. Finally, we note that the trial court does not need to inform the defendant-appellant that he can be sentenced concurrently or consecutively. See State v. Johnson (1988), 40 Ohio St.3d 130. As this court stated in State v. Flint (1986), 36 Ohio App.3d 4: Crim.R. 11(C) does not state that a defendant must be informed of consecutive sentences. Pursuant to Crim.R. 11(C)(2)(a) the court must determine whether the defendant is making a voluntary plea "with understanding of the nature of the charge and of the maximum penalty involved." The maximum penalty refers to the charge to which the defendant is pleading guilty. There is no mention in the rule about consecutive sentencing. -7- Therefore, contrary to defendant-appellant's assertions, the trial court need not inform him that his sentences may be consecutive. A review of the entire transcript establishes that the trial court substantially complied with Crim.R. 11. Defendant- appellant's third assignment of error is overruled. Judgment affirmed. -8- It is ordered that appellee recover of appellant 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, PRESIDING JUDGE, AND LEO M. SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .