COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77476 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARK THORNTON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 2000 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-372,903 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RANDI MARIE OSTRY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DANIEL M. MARGOLIS Attorney at Law 450 Lakeside Place 323 W. Lakeside Avenue Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Defendant-appellant Mark Thornton appeals from the trial court order that denied his post-sentence motion to withdraw his plea of guilty to one count of rape. Appellant contends the trial court's order was improper on the basis his plea was not knowingly, voluntarily and intelligently made since it was entered upon a belief that his plea agreement with the state consisted, in part, of a sentence of only four years. This court has reviewed the record and cannot find the trial court's order was unjustified; therefore, it is affirmed. Appellant's conviction results from an incident that occurred on February 13, 1999. The record reflects appellant became intoxi- cated, entered another unit in the duplex house in which he lived and, with the use of force, raped the young woman who lived in that unit. Appellant was indicted on two counts as a result of this incident, viz., kidnapping, R.C. 2905.01, and rape, R.C. 2907.02. Appellant entered a not guilty plea at his arraignment and was assigned counsel to represent him. Following some discovery, which included appellant's written confession to the crimes given to the investigating police officers, the parties notified the trial court a plea agreement had been reached. The trial court thereupon conducted a hearing on the matter. The prosecutor stated to the trial court that, in exchange for appellant's plea of guilty to the rape charge, the state would dismiss the kidnapping charge. The prosecutor noted the rape -3- charge carried a penalty of "3, 4, 5, 6, 7, 8, 9 or 10 years" and a fine of up to $20,000.00. Defense counsel assented when asked by the trial court if "that [was his] understanding of the plea." The trial court thereafter engaged in a colloquy with appel- lant pursuant to Crim.R. 11. Appellant answered "no" when the trial court requested of him whether any promises had been made to him by anyone to induce his change of plea. Appellant also acknow- ledged the trial court's prerogative to proceed immediately to judgment and sentencing. At that point, the following exchange occurred: THE COURT: All right. Mr. Thornton, based upon what the prosecutor and your lawyer have said, I believe you're going to plead guilty to count two of this indictment, that being a charge of rape, it is punishable, sir, by 3, 4, 5, 6, 7, 8, 9 or 10 years in prison and up to a $20,000 fine. Do you understand that? DEFENDANT: Yes. THE COURT: Mr, Thornton, you are not eli- gible for community control sanctions by virtue of this plea. You are going to prison. Do you understand that? DEFENDANT: Yes. THE COURT: *** So, Mr. Thornton, I could give you up to 10 years in prison ***. Do you understand that, sir? DEFENDANT: Yes. * * * -4- THE COURT: Do you understand there is no promise of any particular sen- tence, Mr. Thornton? DEFENDANT: Yes. THE COURT: Let the record reflect that the Court is satisfied that Mark Thornton has been advised of his constitutional and statu- tory rights, that he under- stands the nature of the charges against him, the effect of his plea, and the maximum penalty that may be imposed upon him and that the defen- dant's plea will be made know- ingly, intelligently and volun- tarily. Mark Thornton, to the charge of rape in violation of Section 2907.02 of the Ohio Revised Code, that on February 13th, 1999, you did engage in sexual conduct with [the victim], by purposely compelling her to submit by the use of force or threat of force, how do you plead, sir, guilty or not guilty? DEFENDANT: Guilty. THE COURT: All right. Me. Thornton, the Court will accept your plea of guilty and find you guilty. [Defense counsel], do you have anything to say before the Court passes sentence? COUNSEL: Are you going to go ahead, your Honor? We had asked the prose- cutor whether or not we could have an agreed sentence for a period of four years. I don't believe he's had an opportunity to speak with the victim. If that's not agreeable, then at this time we would ask for a -5- presentence investigation re- port regarding this matter. (Emphasis added.) The trial court declined defense counsel's request; no objection was lodged. Thereafter, since appellant had nothing he wished to say, the trial court briefly reviewed appellant's criminal record of guilty pleas to three other offenses, viz., aggravated assault, theft, and burglary, before sentencing him to a term of incarceration of six years. Approximately seven months later, acting pro se, appellant filed a motion to withdraw his guilty plea. In his "memorandum" attached to the motion, appellant justified it in the following manner: I am withdrawing my plea base[d] on ineffec- tive assistance of counsel. I was told I had confessed thru (sic) my statement, that was taken while I was intoxicated. Also other evidence not made forthcoming, blood test, ect;. (sic) ***. Subsequently, the trial court denied appellant's motion without opinion. This court has permitted appellant to file a delayed appeal of the foregoing order. Appellant presents one assignment of error. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA AS THE GUILTY PLEA WAS NOT KNOW- INGLY, VOLUNTARILY AND INTELLIGENTLY ENTERED. Appellant argues his guilty plea should be invalidated, contending it was not knowingly, voluntarily or intelligently made -6- since it was based upon his awareness a four-year sentence had been "discussed." Appellant's argument is unpersuasive. It first must be noted appellant did not raise this argument in the memorandum attached to his motion; thus, this court could decline to address it. State v. Williams (1977), 51 Ohio St.2d 112. Nevertheless, in view of appellant's pro se status at the time, and in the interest of deciding a case on its merits when appropriate, this court will proceed to address appellant's argument. In pertinent part, Crim.R. 32.1 permits a trial court to "set aside" a guilty plea upon motion made after the imposition of sentence only to "correct manifest injustice." The record fails to reflect any injustice is manifest in this case. A review of the plea hearing demonstrates appellant was represented by "highly competent counsel" since defense counsel negotiated a plea agreement quite advantageously to his client. From defense counsel's comments, it is clear the sentence had not been included in the agreement with the state but, rather, only suggested. The trial court also scrupulously complied with the require- ments of Crim.R. 11 prior to accepting appellant's plea; appellant was asked several times if he understood the trial court's prerogative to immediately impose a penalty of up to ten years in prison. State v. Peterseim (1980), 68 Ohio App.2d 211. In view of appellant's entry of guilty pleas in three earlier cases, moreover, -7- it cannot be inferred appellant was inexperienced and thus unable to grasp the import of the proceedings. In addition, in view of the fact the trial court personally had accepted appellant's plea only a few months previously, it could rely on its recollection of both the facts of the case and the plea hearing to deny the motion after determining appellant merely had a "change of heart" when the weight of the punishment came to bear upon him. State v. Robinson (Mar. 21, 1991), Cuyahoga App. No. 58181, unreported; State v. Howard (Feb. 27, 1997), Cuyahoga App. No. 68399, unreported; State v. Novak (Sep. 10, 1998) Cuyahoga App. 77217, unreported. A "mistaken belief" as to the consequences of a guilty plea is an insufficient basis upon which to permit a defendant to withdraw it. State v. Lambros (1988), 44 Ohio App.3d 102; see, also, State v. Sabatino (1995), 102 Ohio App.3d 483. Therefore, since a review of the record supports the trial court's decision, manifest injustice does not exist. See, e.g., State v. Xie (1992), 62 Ohio St.3d 521. Accordingly, appellant's assignment of error is overruled. The trial court's order is 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 Cuyahoga County Court of Common Pleas 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. ANN DYKE, A.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .