COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73515 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CHARLES E. JOHNSON : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-270607. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD M. WALSH Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: DAVID L. DOUGHTEN, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- SWEENEY, JAMES D., J.: D ppeals from his plea of of R.C. 2903.02. For the reasons adduced below, we affirm.1 Aefendant-appellant Charles E. Johnson, d.o.b. June 19, 1972,a indicted on August 23, 1991, for the August 14, 1991 aggravated murder of Mr. Deryl Brown.2 See R.C. 2903.01. Appellant's co- defendant was Mr. Kevin Reddick, and their trials were separated. Appellant pled Not Guilty at his arraignment. On the morning of Wednesday, December 4, 1991, the trial court conducted a hearing with the prosecution, defense counsel3 and the appellant, at which time the appellant sought to withdraw his previously entered plea and enter a plea of Guilty to the offense of Murder. See Hearing Transcript of 12-4-91. Also on that same morning, the co-defendant was scheduled to commence his own trial before the trial court. Id. at 6. According to attorney Draper, the plea bargain was not contingent upon the appellant testifying for the prosecution in the co-defendant's trial, but if called to testify, the appellant would testify and do so truthfully. Id. at 7-8. The trial court conducted the hearing and fully complied with 1Oral argument has been waived. The appeal is heard and submitted on the record and briefs provided by the parties. 2The cause of death was the victim being struck in the head by a forty-pound rock. It is not clear which of the co-defendants propelled the stone so as to impact the victim. See appellant's brief at 2. 3Mr. Johnson was represented by attorneys James A. Draper and Dominic Vanucci. -3- Civ.R. 11 in taking the proposed plea. The appellant was accepting of the plea and his waiver of rights until the very end of the court's colloquy prior to formally accepting the plea, when the court inquired of appellant whether he had anything to say on his own behalf. At that point, the appellant professed his innocence of the offense and that he desired to plead Not Guilty. Id. at 17- 19. At that point, the guilty plea hearing was adjourned with no plea forthcoming. On Wednesday morning, December 18, 1991, the trial court convened a second guilty plea hearing.4 The trial court reiterated its prior plea questions to appellant pursuant to Crim.R. 11. The hearing record reflects that appellant understood his rights and made the plea of his own free will. See Hearing Transcript of 12- 18-91, at 20-36. At the close of the hearing, after the plea of guilty had been made and accepted by the trial court and immediately prior to the announcement of sentence, defense counsel addressed the court: THE COURT: Do either of you gentlemen [defense counsel] want to say something that might be of assistance to him [the defendant]? I don't think the Court has any leeway in imposing this sentence? MR. DRAPER: I understand, your Honor, and Charles understands also. 4Prior to this date, the court provided appellant with the trial transcript from his co-defendant's trial which resulted in a conviction. This testimony was discussed by counsel with appellant in the presence of appellant's mother and stepfather, at which time counsel gave their evaluation of the case. Hearing Transcript of 12-18-91, at 24. -4- The court has no choice, but I think just to express on the record his feelings, as we have gleaned them through this whole four- month period, and as I indicated, prior to his plea, he gave a statement. He never wavered in that statement. His feelings have been, and remain, that the co-defendant was as culpable, and for what it is worth, this is counsel's opinion, also. That's neither here nor there, Judge, but he is willing to accept the responsibility for what his actions were, that is the reason he is proceeding in this manner. THE COURT: Certainly, nobody would expect to ask him to accept the culpability of anybody else, and we all understand that, and, Mr. Johnson, then, the Court is going to impose a sentence on you at this time, and that would be to sentence you to the penitentiary, actually, the Lorain Correctional Institution, and that sentence will be for a minimum time of 15 years to a maximum of life imprisonment, and the Court will impose Court costs, okay? Good luck to you. MR. DRAPER: Thank you, Judge. MR. VANUCCI: Thank you, your Honor. (Hearing Transcript of 12-18-91, at 39-40)[Explanation added.]5 This delayed appeal presents the following lone assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION BY ACCEPTING THE APPELLANT'S INVALID PLEA. In this assignment, appellant initially argues that the court did not make sufficient inquiry into whether the appellant understood the nature of the charge of Murder because it did not (1) state to the appellant the precise Revised Code section for the 5The sentence imposed by the trial court was the minimum term available. -5- offense (R.C. 2903.02) and (2) did not define the elements of the offense, to-wit, purposely causing the death of another. The 12-18-91 hearing record, at 21, reflects that the prosecution provided the Revised Code section for the offense when the prosecution set forth the substance of the proposed plea to the offense of Murder. The defense, in response to the prosecutor's summary of the plea, stated that appellant was entering a plea of guilty to the Court as amended by Mr. Spellacy. The amendment referenced the reduction of the original offense of Aggravated Murder to the amended offense of Murder. When asked by the court, the appellant stated that he understood what the prosecutor and his counsel had said in their comments which set forth the proposed plea. Id. at 26. Viewing the totality of the circumstances surrounding the plea, State v. Calvillo (1991), 76 Ohio App.3d 714, the appellant understood the nature of the offense he was pleading to at that time. As to the second subargument presented by appellant, there is no requirement for a court to advise the defendant of the elements of the offense, so long as under the totality of the circumstances the trial court is warranted in determining that a defendant understands the charge. State v. Rainey (1982), 3 Ohio App.3d 441. The substance of discussions between defense counsel and a defendant is a circumstance upon which a court can determine that a defendant understands the charge. State v. Swift (1993), 86 Ohio App.3d 407; State v. Davidson (May 21, 1997), Cuyahoga App. No. 69380, unreported, 1997 Ohio App. LEXIS 2317. In the case sub -6- judice, the discussions of defense counsel, when coupled with the comments of the appellant at the plea hearing, warrant the belief that appellant understood the charge to which he was pleading guilty. The appellant next argues that his plea was not voluntary because he had previously, at the first plea bargain hearing, professed his innocence, and had continued to cling to that innocence at the final hearing. Despite protestations of innocence, a defendant can still plead guilty to an offense if the validity of the plea cannot be seriously questioned to be in defendant's best interest in view of a strong factual basis for the plea as demonstrated by the record. North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. It is well settled, however, that North Carolina v. Alford will not apply if the protestation of innocence is made after and not contemporaneously with the guilty plea. State v. Cutlip (June 18, 1998), Cuyahoga App. No. 72419, unreported, 1998 WL 323556, at 2; State v. Brown (April 16, 1998), Cuyahoga App. No. 71786, unreported, 1998 WL 183861, at 5. Also, an Alford plea requires that the defendant state his innocence on the record when entering his plea. Id. citing State v. Murphy (August 31, 1995), Cuyahoga App. No. 68129, unreported. In the case sub judice, there are two problems which doom the application of an Alford plea herein and make it unnecessary for the trial court to have determined whether appellant's decision to plead guilty was rationally calculated to be in his best interest. -7- First, the protestation of innocence at the plea hearing of 12-18- 91 was made on the record by defense counsel, not the defendant. Second, the protestation of innocence on 12-18-91 was made after the guilty plea was made and accepted by the trial court, not contemporaneously with it. Assignment overruled. 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. KENNETH A. ROCCO, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .