COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78920 STATE OF OHIO, : ACCELERATED : Plaintiff-Appellee : : JOURNAL ENTRY vs. : AND : OPINION PAUL HENDERSON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-388366 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Cuyahoga County Prosecutor BY: Maureen E. Clancy, Esq. Kelley J. Barnett, Esq. Assistant County Prosecutors The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Ronald A. Skingle, Esq. 2450 St. Clair Avenue, No. 2 Cleveland, Ohio 44114 -2- MICHAEL J. CORRIGAN, J.: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant Paul Henderson appeals from his plea of guilty, pursuant to the terms of a plea bargain, to one count of aggravated robbery pursuant to R.C. 2911.01. In exchange for the plea, the State dropped the second count of the indictment which charged the appellant with felonious assault in violation of R.C. 2903.11 Because we find that the appellant's plea was knowingly and voluntarily made and was in substantial compliance with Crim.R. 11 and because the record indicates that the appellant received effective assistance of counsel prior to entering his plea, we affirm the appellant's conviction. The charges against the appellant arose out of an incident on February 2, 2000 where he was observed shoplifting various CDs and DVDs from a K-Mart store. The appellant does not deny that he did in fact attempt to steal these items. After being confronted by store security, the appellant began to resist, necessitating that the security guards take the appellant down to the floor in order to cuff him. As the security personnel attempted to subdue the appellant, he became increasingly violent and at one point forcefully kicked one of the security guards in the back of the knee. -3- As a result of this kick, the security guard in question sustained extremely serious injuries. The victim stated at sentencing that he suffered a fractured tibia, extensive tendon and ligament damage and a total loss of cartilage in the affected knee. As a result of his injuries, the victim had to have nine screws and a steel plate inserted in his leg and undergo bone grafting. At the time of the appellant's sentencing, on May 17, 2000, the victim was still in a cast and required crutches to move around. The victim further stated that his doctors had told him that his leg would never fully return to normal due to the seriousness of the injuries. At sentencing the trial court sentenced the appellant to eight years imprisonment. The maximum sentence that could have been imposed was ten years. On December 5, 2000, this court granted appellant leave to file a delayed appeal. The appellant presents two assignments of error for this court's review. The first assignment of error states: I. THE TRIAL COURT ERRED BY ACCEPTING APPELLANT'S GUILTY PLEA TO AGGRAVATED ROBBERY BECAUSE IT FAILED TO INSURE THAT APPELLANT UNDERSTOOD THE NATURE OF THIS CHARGE, FAILED TO SET FORTH THE MAXIMUM PENALTY FOR THIS CHARGE AND FAILED TO ADVISE APPELLANT THAT HE WOULD NOT BE ELIGIBLE FOR A COMMUNITY CONTROL SANCTION IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENT (SIC) OF THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION SIXTEEN OF THE OHIO CONSTITUTION AND RULE 11(C)(2)(a) OF THE OHIO RULES OF CRIMINAL PROCEDURE. Crim.R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense provides: (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 -4- 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 a plea of 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 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 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. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty. State v. Caudill (1976), 48 Ohio St.2d 342, at 343, 358 N.E.2d 601, 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, at 92, 364 N.E.2d 1163. Literal compliance with Crim.R. 11 is the preferred practice. However, the -5- fact that the trial court does 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, 564 N.E.2d 474. In Nero, the Ohio Supreme Court stated: Substantial compliance means that under the totality of the 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 Ohio Op. 3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 953, 100 S. Ct. 1605, 63 L. Ed. 2d 789. 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, 51 Ohio St. 2d at 93, 5 Ohio Op. 3d 52, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. 56 Ohio St.3d at 108. It is clear that the trial court need not inform the defendant of each element of the offense, but rather need only ensure that he understands the charge brought against him. State v. Rainey (1982), 3 Ohio App.3d 441, 446 N.E.2d 188; State v. Swift (1993), 86 Ohio App.3d 407, 621 N.E.2d 513. The court's determination that a defendant understands the charge can be based on the surrounding circumstances, such as recitations of discussions between the defendant and his attorney. Swift, supra, at 412. In the instant case, the transcript of the plea indicates that appellant represented to the court that he understood the charge to which he was entering a guilty plea. The maximum penalty for a charge of aggravated robbery was put on the record by the prosecutor immediately prior to the plea. The appellant repeatedly advised the court throughout the plea that he understood the nature -6- of each of the rights which he was waiving by pleading guilty. The trial court specifically informed the appellant that by entering a plea he was foregoing his right to trial, his right to confront witnesses, his right to present his own witnesses, and his Fifth Amendment right not to testify at any trial. The trial court further told the appellant that if he went to trial, the burden of proof would be on the State and that he would not have to prove anything. The appellant's counsel informed the court that the appellant understood all of the ramifications of his guilty plea: Your, Honor, I would concur with the statement made by Prosecutor Clancy. I have explained the ramifications of a change of plea to my client, Mr. Henderson. I have also explained to him his constitutional rights. It is my personal and professional opinion that he understands those rights, that the plea forthcoming from him at this time will be voluntary, knowing and intelligent. Finally, before accepting the plea, the trial court informed the appellant that the court would answer any questions that he might have concerning the constitutional rights he was waiving by pleading guilty. When asked point blank whether he had any questions on the nature of these constitutional rights, the appellant responded as follows: Oh no, I don't have any questions. The appellant's assertion that the trial court should not have accepted the plea because of his protestations of innocence during the plea hearing is belied by the record. See North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. The protestation to which the appellant refers was merely a statement that the appellant did not rob the security guard whom he -7- injured during the scuffle which ensued prior to the appellant's apprehension. The appellant was never charged with robbing the security guard. Rather, the appellant was charged, pursuant to R.C. 2911.01(A)(3), with aggravated robbery, which is defined as follows: (A) No person, in attempting or committing a theft offense as defined in Section 2913.01 of the Revised code, or in fleeing immediately after the attempt or offense, shall do any of the following: (3) Inflict, or attempt to inflict, serious physical harm upon another. The statute does not require that the person who is harmed also be the victim of the theft offense. The appellant does not deny that he attempted to steal the CDs and the DVDs from the store, nor does he deny that he caused serious physical injury to the security guard. In fact the appellant apologized to the security guard at the sentencing hearing. Thus, for the foregoing reasons, this assignment of error is overruled. The second assignment of error states: II. APPELLANT, PAUL HENDERSON WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO ENSURE THAT APPELLANT ENTERED A KNOWINGLY (SIC), INTELLIGENT AND VOLUNTARY GUILTY PLEA. This court has already determined that the appellant's plea was knowingly, intelligently and voluntarily entered. Thus, this assignment of error is necessarily also without merit and, accordingly, is 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. MICHAEL J. CORRIGAN JUDGE TIMOTHY E. McMONAGLE, P.J., and TERRENCE O'DONNELL, J., CONCUR. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .