610 N.E.2d 619 | Ohio Ct. App. | 1992
The defendant-appellant, Marcus Acoff ("defendant"), appeals from his conviction for felonious assault in violation of R.C.
The defendant and his three codefendants — Bell, Shaw and Shoffner — were engaged in a street argument with a group of young men. The victim happened on the scene and became involved. He was knocked to the ground and the defendant kicked him. Subsequently, Bell shot the victim, who ultimately died from the wounds. Defendant and his codefendants were each indicted for murder with a gun specification. As the result of a plea bargain (1) the defendant entered a plea of guilty to the lesser crime of felonious assault without a gun specification; (2) Bell entered a plea of guilty to the lesser crime of voluntary manslaughter with a gun specification; and (3) Shaw and Shoffner each pleaded guilty to a reduced charge of simple assault.
In his first assignment of error the defendant contends that he did not enter his guilty plea intelligently and voluntarily. Crim.R. 11(C) specifies those rights of which a trial court is to advise a defendant before accepting a plea of guilty. There must be substantial compliance with the terms of the rule. Statev. Stewart (1977),
The defendant and his three codefendants jointly appeared before the trial judge, who carefully advised each defendant of his constitutional rights under Crim.R. 11(C). The defendant claims that the trial court failed to advise him that his sentence could include actual incarceration. When the trial court substantially complies with Crim.R. 11(C), the sentence that it imposes is within its discretion. See, generally,State v. Johnson (1989),
In his second assignment of error, the defendant maintains that the trial court abused its discretion by finding him guilty of felonious assault. The prosecutor informed the trial judge of an agreement to reduce the charge against Bell to voluntary manslaughter because Bell was "upset and provoked." Accordingly, the defendant argues, that he is likewise, as a factual matter, subject to these same mitigating factors which related to Bell. He argues that any conclusion which suggests that only Bell was provoked to use deadly force is inconsistent. Consequently, defendant argues, that if the same mitigating factors are applied to him, he is guilty only of aggravated assault. Defendant asserts that the Ohio and United States' Equal Protection Clauses mandate that "application of mitigating circumstances be applied to all accused involved in the same fact scenario." He cites no authority to support this broad reading of the Equal Protection Clauses, and we know of none. In reality, the issue depends upon whether he intelligently and voluntarily entered his plea of guilty to the lesser offense offered by the state in the plea bargain. Unless defendant successfully demonstrates that his plea was involuntary, his plea of guilty waives any challenge to his conviction for felonious assault based upon errors that may have occurred had his case gone to trial. State v. Kelley (1991),
The defendant's third assignment of error deals with the trial court's consideration of the victim-impact statement. This assignment has three branches. In the first branch he argues that the victim-impact statement contained incorrect information that caused the trial judge to become confused. As reflected in the discussion with the prosecutor during the sentencing hearing, the trial judge's confusion, claimed to be error, simply stemmed from the misidentification of the victim's mother and grandmother. The name *769 confusion was sorted out for the trial judge before he pronounced the sentence and does not demonstrate any error.
The second branch of defendant's argument addresses the trial court's failure to include the victim-impact statement in the record. The defendant's trial counsel did not make such a request, and the defendant has not directed our attention to anything tangible that necessitates the relaxation of the confidentiality requirement of R.C.
Finally, defendant maintains that the trial judge violated R.C.
The defendant contends in his fourth assignment of error that his sentence was excessive. He maintains that the trial court did not comply with the sentencing guidelines of R.C.
The issue of ineffective assistance of trial counsel, raised in the defendant's fifth assignment of error, is nowhere demonstrated in the record. We find no evidence in this record to show trial counsel violated an essential duty to the defendant or that his representation fell below the objective standard of reasonableness. Strickland v. Washington (1984),
For the foregoing reasons the judgment of the court of common pleas is affirmed.
Judgment affirmed.
SHANNON, P.J., KLUSMEIER and GORMAN, JJ., concur. *771