COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78596 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CHARLES COLLINS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING : Criminal appeal from : Cuyahoga County : Court of Common Pleas : Case No. CR-368,019 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RICHARD J. BOMBIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PATRICK P. LENEGHAN, JR. Attorney at Law LENEGHAN & LENEGHAN 9500 Maywood Avenue Cleveland, Ohio 44102 KENNETH A. ROCCO, P.J.: Defendant appeals from his conviction and sentence on five counts of rape based upon his guilty plea. He urges: -2- I. THE TRIAL COURT ERRED IN VIOLATION OF CRIM.R. 11(C) BY FAILING TO EXPLAIN THE RIGHTS THAT DEFENDANT WAS WAIVING BY PLEADING GUILTY. II. THE TRIAL COURT'S FAILURE TO SPECIFICALLY INQUIRE OF DEFENDANT WHETHER HE UNDER- STOOD THE NATURE OF THE CONSTITUTIONAL RIGHTS ENUMERATED IN CRIM.R. 11(C) CON- STITUTES A VIOLATION OF DUE PROCESS. III. THE TRIAL COURT ERRED BY FAILING TO IN- FORM DEFENDANT HE WAS INELIGIBLE FOR PROBATION THUS DESTROYING HIS ABILITY TO MAKE A VOLUNTARY, KNOWING AND INTELLIGENT CHOICE IN VIOLATION OF CRIM.R. 11. IV. THE PROCEEDINGS BELOW WERE DEFECTIVE IN THAT NO INQUIRY WAS MADE REGARDING WHETHER DEFENDANT UNDERSTOOD THE NATURE OF THE CRIME AND CONSEQUENTLY THE COURT ERRED IN ACCEPTING A PLEA WHICH WAS NEI- THER KNOWINGLY, WILLINGLY NOR INTELLI- GENTLY MADE IN VIOLATION OF CRIM.R. 11 AND DEFENDANT'S CONSTITUTIONAL RIGHTS. V. THE TRIAL COURT ERRED BY FAILING TO STATE ON THE RECORD ITS JUSTIFICATION FOR ITS FAILURE TO SENTENCE DEFENDANT TO THE MINIMUM AND ITS FAILURE TO IMPOSE CONCUR- RENT SENTENCES FOR ALL COUNTS. We find no error in the trial court's decisions and affirm its judgment. PROCEDURAL HISTORY Appellant was charged in an eleven-count indictment filed October 1, 1998, with one count of kidnapping in violation of R.C. 2905.01 and ten counts of rape in violation of R.C. 2907.02. He entered a not guilty plea, and the court appointed counsel to represent him. -3- On November 20, 1998, appellant appeared before the court and entered a guilty plea to five of the rape counts, counts two through six of the indictment. The state recommended that the court dismiss the remaining counts. The following exchange took place on the record: MR. MAISTROS [DEFENDANT'S COUNSEL]: *** YOUR HONOR, I HAVE HAD SIGNIFICANT DISCUSSIONS WITH BOTH MY CLIENT AND THE COUNTY PROSECU- TOR'S OFFICE. BASED UPON THOSE DISCUSSIONS AND THE FACTS PRESENTED TO ME IN THIS CASE, IT'S MY UNDERSTANDING AT THIS TIME THAT MR. COLLINS WILL, IN FACT, WITHDRAW HIS PREVIOUSLY ENTERED PLEA OF NOT GUILTY AND ENTER A PLEA OF GUILTY TO COUNTS TWO, THREE, FOUR, FIVE AND SIX. I HAVE ALSO DISCUSSED WITH MR. COLLINS HIS CONSTITUTIONAL RIGHTS AND ADVISED HIM THAT THE COURT WILL ALSO GO OVER THOSE ONCE AGAIN WITH HIM THIS MORNING. * * * THE COURT: DO YOU UNDERSTAND YOU'RE GIVING UP SOME OF YOUR CONSTITUTIONAL RIGHTS BY PLEADING GUILTY? THE DEFENDANT: YES, YOUR HONOR. * * * THE COURT: YOU'VE HEARD EVERYTHING YOUR ATTORNEY AND THE PROSECUTOR HAVE SAID; DO YOU UNDERSTAND WHY WE ARE HERE? THE DEFENDANT: YES, YOUR HONOR. THE COURT: DO YOU UNDERSTAND THAT UNDER THE LAW YOU HAVE THE RIGHT TO HAVE A TRIAL BY A JUDGE WITH A JURY OR WITHOUT A JURY IF YOU WANT ONE? THE DEFENDANT: YES, YOUR HONOR. THE COURT: YOU HAVE A RIGHT TO BE REPRE- SENTED BY AN ATTORNEY, YOU MAY BE CONFRONTED BY THE WITNESSES WHO ACCUSE YOU, YOU HAVE A -4- RIGHT TO HAVE YOUR LAWYER CROSS-EXAMINE THOSE WITNESSES; DO YOU UNDERSTAND THAT? THE DEFENDANT: YES, YOUR HONOR. THE COURT: YOU HAVE A RIGHT TO HAVE THE SUBPOENA PROCESS FOR OBTAINING WITNESSES ON YOUR OWN BEHALF AND YOU HAVE THE RIGHT TO HAVE THE STATE PROVE YOUR GUILT BEYOND A REASONABLE DOUBT AT TRIAL. YOU COULD PRODUCE WITNESSES ON YOUR OWN BEHALF AT ANY TRIAL IF YOU DESIRE. YOU HAVE ALL THESE RIGHTS, DO YOU UNDERSTAND THAT? THE DEFENDANT: YES, YOUR HONOR. THE COURT: FURTHERMORE, IF YOU WISH A TRIAL, YOU COULD TAKE THE WITNESS STAND AND TESTIFY IF YOU WANT TO, AND IF YOU DON'T WANT TO, YOU DON'T HAVE TO, THE STATE COULD NOT COMMENT ON YOUR FAILURE TO TAKE THE WITNESS STAND, DO YOU UNDERSTAND THAT? THE DEFENDANT: YES, YOUR HONOR. THE COURT: YOU'RE GIVING UP ALL THESE RIGHTS BY PLEADING GUILTY, IS THAT CORRECT? THE DEFENDANT: YES, SIR. THE COURT: HAS ANYONE, INCLUDING YOUR ATTORNEY, THE COURT, THE PROSECUTOR, MADE ANY PROMISES OR THREATS TO INDUCE YOU TO ENTER THIS PLEA? THE DEFENDANT: NO, YOUR HONOR. THE COURT: YOU'VE HEARD THE PROSECUTOR INDICATE, AND I'LL REMIND YOU NOW, YOU'RE PLEADING GUILTY TO FIVE COUNTS OF RAPE, COUNTS TWO THROUGH SIX, EACH ONE IS A FELONY OF THE FIRST DEGREE, AND YOU COULD RECEIVE A DEFINITE PERIOD FROM THREE TO TEN YEARS ON EACH COUNT, AND FOR THAT MATTER, THEY COULD BE RUN CONSEC- UTIVE TO EACH OTHER; DO YOU UNDERSTAND THOSE POSSIBILITIES? THE DEFENDANT: YES, YOUR HONOR. THE COURT: WHEN YOU GO TO PRISON, IF YOU COMMIT A CRIME OR OFFENSE, THE PAROLE BOARD -5- COULD INCREASE YOUR PRISON TERM BY UP TO 50 PERCENT; DO YOU UNDERSTAND THAT? THE DEFENDANT: YES, YOUR HONOR. THE COURT: YOU'RE ALSO SUBJECT TO A POSSIBLE MAXIMUM FINE OF $20,000 ON EACH COUNT OF A FIRST DEGREE FELONY CHARGE; DO YOU UNDER- STAND THAT? THE DEFENDANT: YES, YOUR HONOR. THE COURT: ARE YOU SATISFIED WITH THE REPRESENTATION BY YOUR LAWYER? THE DEFENDANT: YES, YOUR HONOR. THE COURT: IS THERE ANYTHING ABOUT THIS CASE OR THESE PROCEEDINGS THAT YOU DO NOT UNDERSTAND OR THAT YOU WOULD LIKE TO HAVE MORE FULLY EXPLAINED? THE DEFENDANT: NO, YOUR HONOR. THE COURT: HOW DO YOU PLEAD TO THE CHARGE IN COUNT TWO, THAT ON AUGUST 26TH, 1998 YOU ENGAGED 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 TO COUNT TWO, A FELONY OF THE FIRST DEGREE, A VIOLATION OF THE RAPE SECTION, 2907.02; HOW DO YOU PLEAD TO THAT CHARGE? THE DEFENDANT: GUILTY, YOUR HONOR. * * * THE COURT: COUNSEL, ARE YOU SATISFIED WITH THE COMPLIANCE OF CRIMINAL RULE ELEVEN? MR. MAISTROS: I AM, YOUR HONOR. MR. BOMBIK [PROSECUTOR]: YES, YOUR HONOR. THE COURT: I WILL ACCEPT YOUR PLEA. I FIND THAT IT IS VOLUNTARILY AND KNOWINGLY MADE AFTER I HAVE FULLY ADVISED YOU OF YOUR CONSTI- TUTIONAL RIGHTS. *** FURTHER, I'LL MAKE IT CLEAR TO YOU THAT YOU ARE NOT GOING, YOU ARE NOT ELIGIBLE AND -6- WILL NOT GET PROBATION, BUT I WILL GET A REPORT SO THAT I CAN FIND OUT MORE ABOUT THIS *** The court later sentenced appellant to eight years' imprison- ment on each count. The sentences imposed for counts two, three and four were to run consecutively, while the sentences on counts five and six ran concurrent to the others. The court also found appellant was a sexual predator. LAW AND ANALYSIS The first four assignments of error challenge the court's acceptance of appellant's guilty plea. First, appellant claims the court failed to comply with Crim.R. 11(C) by failing to provide him with a detailed explanation of the constitutional rights he was waiving and determine that he understood them. In his second assignment of error, he claims that these failures violated his due process rights because the court could not ascertain that his plea was knowing, intelligent and voluntary. We address these closely related questions together. Criminal Rule 11(C) provides that the court in a felony case shall not accept a plea of guilty or no contest without first addressing the defendant personally and : (c) Informing the defendant and determin- ing that the defendant understands that by the plea the defendant is waiving the rights to a jury trial, to confront witnesses against him or her, to have compulsory process for obtain- ing witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. -7- In determining whether the court has satisfied its duties under Crim.R. 11, the reviewing court must first consider whether the matter about which the appellant was to be informed was a constitutional right or a non-constitutional matter. Cleveland v. Wanzo(1998), 120 Ohio App.3d 664. When non-constitutional matters are involved, substantial compliance with the requirements of Crim.R. 11 is all that is required. State v. Nero (1990), 56 Ohio St.3d 106, 108. However, more stringent standards apply when con- stitutionally protected rights are involved. The trial court's acceptance of a guilty plea will be affirmed only if the court engaged in meaningful dialogue with the defendant which, in sub- stance, explained the pertinent constitutional rights in a manner reasonably intelligible to that defendant. State v. Ballard (1981), 66 Ohio St.2d 473, paragraph two of the syllabus. The trial court here first ascertained that appellant was a twenty-eight-year-old high school graduate with two years of college. The court informed appellant of each of his constitu- tional trial rights. The court asked the defendant whether he understood that he had these rights and that he was giving them up by pleading guilty. The record indicates that appellant unequivo- cally told the court that he understood all of these things. The court further asked appellant if there were anything he did not understand or wanted to have explained further. Appellant said no. If the defendant receives the proper information, then we can ordinarily assume that he understands that information. State v. Carter(1979), 60 Ohio St.2d 34, 38. Even now, appellant does not -8- claim that he did not understand his constitutional rights; he simply complains that the court did not explain those rights in more detail. Based upon this record, the court complied with its duty to explain appellant's constitutional rights in a manner reasonably intelligible to him, to ascertain that he understood those rights, and to determine that his plea was knowing, intelli- gent and voluntary. Accordingly, we overrule the first and second assignments of error. The third assignment of error contends that the court erred by failing to inform him that he was ineligible for probation before he entered his guilty plea. This is one of the non-constitutional matters about which a defendant must be informed under Crim.R. 11, so substantial compliance was all that was required. The court obliquely referred to the fact that these offenses were not probationable before appellant entered his pleas when it explained that when [he went] to prison the parole authority could increase his sentence if he committed another crime. At the end of the plea hearing, the court specifically informed the appellant that these offenses were not probationable. We find the court timely apprised appellant of the fact that the offense was not probationable and therefore substantially complied with Crim.R. 11. Cf. State v. May (1989), 64 Ohio App.3d 456, 460. If appel- lant had entered his pleas in the mistaken belief that he could receive probation, he was made aware of his error immediately thereafter and could and should have raised this issue before sentence was imposed. Crim.R. 32.1. -9- Appellant's fourth assignment of error claims the court failed to inquire whether he understood the nature of the crime and therefore could not have ascertained that the plea was knowing, intelligent and voluntary. The court must look to the totality of the circumstances in determining whether a guilty plea is knowingly, intelligently,and voluntarily entered. State v. Carter (1979), 60 Ohio St.2d 34, 38. *** it is not always necessary that the trial court advise the defendant of the elements of the crime, or to specifically ask the defen- dant if he understands the charge, so long as the totality of the circumstances are such that the trial court is warranted in making a determination that the defendant understands the charge. State v. Rainey (1982), 3 Ohio App.3d 441, 442. Here, the court explained that the charges to which he was pleading guilty were rape and that these were first degree felonies, subject to potentially consecutive sentences of three to ten years imprisonment and a maximum $20,000 fine on each charge. In taking appellant's plea, the court specifically asked appellant how he plead to the charge that you engaged in sexual conduct with [the victim] by purposely compelling her to submit by use of force or threat of force. When the appellant indicated that he pled guilty, the court further asked appellant if he was, in fact, guilty of this, and appellant responded affirmatively. Based upon this colloquy, the court could properly determine that appellant understood the nature of the charges to which he was pleading guilty. State v. Calvillo (1991), 76 Ohio App.3d 714, 719-21. Therefore, we overrule the fourth assignment of error. -10- Finally, appellant challenges the sentence imposed upon him. Appellant argues that the court failed to make the findings on the record necessary to impose a sentence in excess of the shortest available prison term and did not make the findings needed to impose consecutive sentences. The transcript of the sentencing hearing is necessary for us to review this assignment of error. Appellant's amended docketing statement requested a complete transcript of proceedings, but the only transcript included in the record was the transcript of the plea hearing. [A]ppellant bears the burden of taking the steps required to have the transcript prepared for inclusion in the record. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19. "When portions of the tran- script necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199. There- fore, we overrule the fifth assignment of error and affirm appellant's convictions. -11- 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. MICHAEL J. CORRIGAN, J. and COLLEEN CONWAY COONEY, J. CONCUR PRESIDING 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). .