COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73539 and 73540 STATE OF OHIO, : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : : OPINION DERRICK S. CHILDS, : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 3, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case Nos. CR- 320670 & CR-323836 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Defendant-Appellant: NICHOLAS K. THOMAS The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 For Plaintiff-Appellees: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GAIL DENISE BAKER Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- JUDGE TERRENCE O'DONNELL: Derrick S. Childs filed this delayed appeal from common pleas court judgments entered in two cases whereby in case number 323836, he pled guilty to one count of drug trafficking and received an agreed upon sentence of four to fifteen years, and in case number 329670 he pled guilty to carrying a concealed weapon and illegal possession of a firearm in a liquor permit premises and received a one year sentence on each count concurrently imposed, but consecutive with the sentence in case number 323836. The state nolled the remaining charges, which consisted of one additional count of drug trafficking and possession of criminal tools in case number 323836, and one count of failure to comply with the order or signal of a police officer in case number 320670. On appeal, Childs contends the court erred in failing to conduct a hearing to determine whether the offenses of carrying a concealed weapon and illegal possession of a firearm in a liquor permit premises are allied offenses of similar import, and also contends he did not receive effective assistance of counsel because his defense attorney failed to raise this issue with the court at the time of the plea. Upon consideration of these matters, we reject these contentions and affirm the judgment of the trial court. The assignments of error presented in this delayed appeal are as follows: I. DID THE TRIAL COURT FAIL TO CONDUCT AN INQUIRY INTO THE APPELLANT'S CONDUCT AS REQUIRED BY LAW TO DETERMINE -3- WHETHER OR NOT VIOLATIONS OF R.C. 2923.121 AND R.C. 2923.12 ARE ALLIED OFFENSES OF SIMILAR IMPORT? II. DID THE APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL? Childs contends the court erred by failing to conduct a hearing on the question of whether the offenses of illegal possession of a firearm in a liquor permit premises and carrying a concealed weapon are allied offenses of similar import before accepting his guilty plea, and that his counsel failed to represent him effectively because he did not raise this issue with the court. The state maintains that the court had no duty to conduct such an inquiry, and that the court substantially complied with Crim.R. 11(C), thus, because Childs knowingly, intelligently, and voluntarily entered the guilty plea, he waived any such claim of error. The issue for our consideration, then, is whether Childs waived these claims by entering a guilty plea. R.C. 2941.25 provides: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. -4- Crim.R. 11(B)(1) provides that a plea of guilty is a complete admission of the defendant's guilt. Further, as the court stated in State v. Barnett (1991), 73 Ohio App.3d 244, at 248: When a defendant enters a plea of guilty as a part of a plea bargain he waives all appealable errors which may have occurred at trial, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley (1991), 57 Ohio St.3d 127. A failure by counsel to provide advice which impairs the knowing and voluntary nature of the plea may form the basis of a claim of ineffective assistance of counsel, but absent such claim it cannot serve the predicate for setting aside a valid plea. United States v. Boce (1989), 488 U.S. 563, at 574. In this case, Childs agreed to plead guilty to these offenses and to accept the sentences imposed upon him by the court which had been agreed upon prior to his plea by and between his defense counsel and the prosecutor. The transcript reflects at page 23 the following recitation by the prosecutor: * * * And the agreement is that the defendant will serve a term of incarceration of four years to fifteen years, three of those years being actual incarceration, and that the court impose the sentence consecutive to the one year agreed upon sentence in case number 320670. And the defendant, therefore, would be serving a total of five to fifteen years incarceration. In addition, the state nolled all remaining charges in both cases, and the record reflects the court informed him of his rights prior to accepting his plea and imposing sentence. Thus, by entering his plea, Childs has waived his right to claim error on appeal from the negotiated plea and sentence agreement. Further, we need not determine whether the offenses of carrying a concealed weapon and illegal possession of a firearm in -5- a liquor permit premises constitute allied offenses of similar import because the court in this case imposed concurrent sentences of one year on each offense. Finally, Childs' claim of ineffective assistance of counsel is not well taken. In Strickland v. Washington (1984), 466 U.S. 668, 687, the court set out the two part test we follow in addressing claims of ineffective assistance of counsel: * * * First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. In order to show prejudice, the defendant must demonstrate a reasonable probability exists that, absent counsel's error, the result of the trial would have been different. See State v. Bradley(1989), 42 Ohio St.3d 136, paragraph three of the syllabus. Here, Childs has failed to demonstrate a reasonable probability that but for his counsel's actions, his sentence would have been any different, because here the court sentenced him to concurrent one year terms on the offenses of carrying a concealed weapon and illegal possession of a firearm in a liquor permit premises, an outcome the effect of which is the same as if the offenses had been determined to be allied offenses of similar import. Thus, there is no prejudice to Childs. Accordingly, these assignments of error are without merit, and the judgment and sentence of the court is affirmed. Affirmed. -6- 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. JOSEPH J. NAHRA, P.J., CONCURS; DIANE KARPINSKI, J., CONCURS IN JUDGMENT ONLY 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 .