[Cite as State v. Drake,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98640

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TIM E. DRAKE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-556998

BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: May 16, 2013 ATTORNEY FOR APPELLANT

John W. Hawkins Parkhill Professional Building 35104 Euclid Avenue, Suite 101 Willoughby, Ohio 44094

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Carl Sullivan Adam M. Chaloupka Assistant County Prosecutors 1200 Ontario Street Justice Center - 8th Floor Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, P.J.:

{¶1} In this appeal, defendant-appellant, Tim E. Drake, challenges his guilty plea.

For the reasons that follow, we affirm.

{¶2} In December 2011, Drake was charged with theft in violation of R.C.

2913.02(A)(3). In June 2012, he withdrew his not guilty plea and pled guilty to the

charge as indicted. The trial court sentenced Drake to 60 days of incarceration in the

county jail and one year of community control.

{¶3} Drake appeals, contending in his sole assignment of error that he was

materially prejudiced by the trial court’s failure to comply with Crim.R. 11 when the

court failed to inform him that a guilty plea is a complete admission of guilt. Drake also

asserts that no factual basis for the offense was established on the record prior to him

pleading guilty and that the court did not set forth the legal elements of theft prior to

accepting his guilty plea.

{¶4} Under Crim.R. 11(C)(2), a court shall not accept a guilty plea in a felony case

without first addressing the defendant personally and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *.

(b) Informing the defendant of and determining that the defendant understands the effect of the plea * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining 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.

{¶5} Courts have divided Crim.R. 11 rights into constitutional and

nonconstitutional rights. Concerning constitutional rights, courts must strictly comply

with Crim.R. 11 mandates; for nonconstitutional rights, the standard is substantial

compliance. State v. Stewart,

,

(1977).

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. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show prejudicial effect.

State v. Nero,

,

(1990), citing

. The test for prejudice is whether the plea would have otherwise been made. State v. Veney,

,

,

.

{¶6} In this case, Drake is challenging the trial court’s compliance with respect to

the nonconstitutional rights under Crim.R. 11. Accordingly, Drake must show that the

trial court did not substantially comply with Crim.R. 11 and that he suffered some

prejudice from the court’s omission.

{¶7} Drake first contends that the trial court failed to advise him that a guilty plea

is a complete admission of guilt. In State v. Griggs,

,

,

, the Ohio Supreme Court addressed this precise issue and stated, “* * * we

hold that a defendant who has entered a guilty plea without asserting actual innocence is

presumed to understand that he has completely admitted his guilt. In such circumstances, a court’s failure to inform the defendant of the effect of his guilty plea as required by

Crim.R. 11 is presumed not to be prejudicial.” Id. at ¶ 19.

{¶8} In this case, although the trial court did not specifically tell Drake that his

guilty plea constituted a complete admission of guilt, this court does not find that the

omission constitutes error. Drake had no questions for the court and made no claims that

he was innocent prior to entering his plea of guilty to the theft charge as indicted. “The

word ‘guilty’ implies an acknowledgment of guilt.” State v. Rogers, 8th Dist. Nos.

97093 and 97094,

, citing State v. Rodgers, 8th Dist. No. 95560,

. Drake’s assurances and the appropriateness of his responses during the

colloquy demonstrated that, under the totality of the circumstances, he understood the

implications of his plea.

{¶9} Drake also argues that his plea was invalid because the trial court failed to set

forth any factual basis for the theft offense and failed to state the elements of theft on the

record.

{¶10} A trial court is not required pursuant to Crim.R. 11(C) to set forth any

factual basis for a guilty plea during a plea hearing. “Implicit within Crim.R. 11(C), is

the idea that a guilty plea constitutes a full admission of factual guilt that obviates the

need for a fact-finding trial on the charges.” State v. Snuffer, 8th Dist. Nos. 96480,

96481, 96482, and 96483,

, citing State v. Wilson,

,

(1979), paragraph one of the syllabus. {¶11} In addition, this court has consistently held that “courts are not required to

explain the elements of each offense, or even to specifically ask the defendant whether he

understands the charges, unless the totality of the circumstances shows that the defendant

does not understand the charges.” State v. Whitfield, 8th Dist. No. 81247,

, ¶ 14, quoting State v. Cobb, 8th Dist. No. 76950,

, *6.

{¶12} The totality of the circumstances indicates that Drake understood the charge

against him. The record reflects that after the court questioned Drake about his ability to

understand and enter his plea, the court advised him of his constitutional rights, the

charge against him, and the consequences and penalties associated with his plea. Drake

indicated he understood the foregoing and that he had no questions. There is no

indication in the record that Drake did not understand the nature of the theft charge

against him. Moreover, Drake pled to the indictment as charged; therefore, the elements

of the offense he pled guilty to never changed during the course of the proceedings.

{¶13} Finally, because the rights contained in Crim.R. 11(C)(2)(a) and (b) are

nonconstitutional, Drake must show that he suffered some prejudice in order to invalidate

his plea. See State v. Jones,

,

,

;

State v. Taylor, 8th Dist. No. 94569,

. Drake contends that he did not

understand the mental state of theft, and if he did, he would have pled no contest to avoid

any appearance of lack of remorse during sentencing.

{¶14} The trial court specifically asked during the plea hearing if the change of

plea would be to “guilty or no contest.” Both the prosecutor and defense counsel agreed it would be a plea of guilty. Therefore, the record is clear that Drake’s intention was to

plead guilty. Whether Drake had a change of heart during sentencing does not affect the

validity of his plea, especially when the trial court conducted a sentencing hearing on a

later date. Moreover, at no time during his plea or sentencing did Drake make any

protest of innocence.

{¶15} Accordingly, we find that the trial court substantially complied with Crim.R.

11 in advising Drake of his nonconstitutional rights, and we find that Drake has not

demonstrated prejudice such that his plea would not have otherwise been made. His

assignment of error is overruled.

{¶16} Judgment affirmed.

It is ordered that appellee recover from 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 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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

TIM McCORMACK, J., and EILEEN T. GALLAGHER, J., CONCUR