COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74331 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : -vs- : JOURNAL ENTRY : AND VENIS TISDALE : OPINION Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : DECEMBER 17, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case : No. CR-354,651 JUDGMENT: Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Lisa M. Mahnic, Esq. Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Fred D. Middleton, Esq. 620 Leader Building 526 Superior Avenue Cleveland, Ohio PER CURIAM: This cause came to be heard upon the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas, and briefs of counsel. -2- Defendant-appellant, Venis Tisdale, appeals the decision of the trial court denying his motion to withdraw his guilty plea. For the following reasons, we affirm the decision of the trial court. Defendant-appellant raises three assignments of error which, due to similar issues of law and fact, will be considered simultaneously. I. THE PLEA OF GUILTY WAS NOT KNOWINGLY AND VOLUNTARILY AS REQUIRED UNDER CRIMINAL RULE 11. II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO VACATE THE PLEA OF NO CONTEST WITHOUT A HEARING. III. THE TRIAL COURT IS REQUIRED TO PREPARE FINDINGS OF FACT AND CONCLUSION OF LAW EVEN UPON A SUMMARY DISMISSAL OF A POST-CONVICTION PETITION. Defendant-appellant argues in his second assignment of error that the trial court erred in denying his motion to withdraw his plea of guilty. Initially, we note that contrary to defendant- appellant's assertions, he entered a plea of guilty as opposed to a plea of no contest. More importantly, however, is that a review of the docket sheet and journal entries in the record indicates that defendant-appellant never filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1. It is axiomatic that a court speaks through its journal. Oney v. Allen, et al. (1988), 39 Ohio St.3d 103; Indus. Comm. v. Musselli (1921), 102 Ohio St. 10. Accordingly, defendant-appellant's second assignment of error is without merit and renders his third assignment of error moot -3- pursuant to App.R. 12(A)(1)(c).1 See, also, State v. Stokes (March 7, 1996), Cuyahoga App. No. 69032; State v. Kessler (Sept. 30, (1993), Montgomery App. No. 13870, unreported. In defendant-appellant's first assignment of error, he argues his plea was not knowingly and voluntarily made. We recognize that in some instances, the failure to file a motion to withdraw can constitute waiver of the issue on appeal. See e.g., State v. Stokes (March 7, 1996), Cuyahoga App. No. 69032, unreported. However, since no motion to dismiss has been filed by plaintiff-appellee, we will review defendant-appellant's claims under the plain error standard. See State v. Leon (March 12, 1998), Cuyahoga App. No. 72407. Crim.R. 11(C) provides in pertinent part: (1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. (2) In felony cases the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with the 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 1Defendant-appellant was in error when referring to the motion to withdraw as a post-conviction petition in his third assignment of error. See R.C. 2953.21. -4- 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. In order to comply with Crim.R. 11(C), a trial court must determine whether the defendant fully comprehends the consequences of his plea of guilty or no contest. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty or no contest. Adherence to the provisions of Crim.R. 11(C)(1) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea or guilty or no contest. State v. Caudill (1976), 48 Ohio St.2d 343, paragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a trial court, in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St.2d 86, 92. While literal compliance with Crim.R. 11 is the preferred practice, the fact that the trial court did not strictly comply with Crim.R. 11 does not compel vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. State v. Nero (1990), 56 Ohio St.3d 106. In Nero, the Ohio Supreme Court stated: -5- Substantial compliance means that under the totality of circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Furthermore a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 5676, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id. at 108. In this case, when defendant-appellant was asked if he understood that by entering the plea he was waiving certain rights, defendant-appellant responded somewhat. The trial court then attempted to ascertain what he did not understand and instructed defendant-appellant to consult with his attorney. Defendant- appellant did and then responded that he did understand that by entering a guilty plea he was waiving certain rights previously discussed. Second, the court asked defendant-appellant if he was satisfied with appointed counsel. It should be noted that defendant-appellant had previously been assigned counsel and then, on the day of the trial, his counsel informed the court that defendant-appellant had recently become dissatisfied with their representation. Defendant-appellant requested the court to appoint another attorney. The trial court appointed another attorney and defendant-appellant stated on the record he understood that he cannot continue to lawyer shop. During his plea, the trial court asked defendant-appellant if he was satisfied with his counsel. -6- Defendant-appellant responded, Yes, not really, but yes. He then acknowledged that his plea was entered into voluntarily and by his own free-will. We find nothing in the discussions between the trial court and defendant-appellant which would support his claim that he did not enter his plea knowingly, intelligently and voluntarily. Moreover, a review of the record demonstrates the trial court's substantial compliance with the guidelines of Crim.R. 11. Finally, defendant- appellant failed to demonstrate a prejudical effect. For all these reasons, defendant-appellant's first assignment of error is not well taken. Judgment affirmed. -7- 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 Cuyahoga County 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. TERRENCE O'DONNELL, PRESIDING JUDGE JAMES D. SWEENEY, JUDGE MICHAEL J. CORRIGAN, 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 .