The lead author finds that the provisions of Crim. R. 11(C)(2) were arguably complied with in that appellant was informed of the maximum sentence which might be imposed for aggravated burglary. On such premise, it would appear that this court accepts "a ritualistic incantation of an admonishment which is not constitutionally guaranteed" as substantial compliance with the rule.
In my view, we must consider Crim. R. 11(C)(2) in light of the purpose for which it was adopted, that is, to establish procedural safeguards to assure and facilitate an accurate determination of the voluntariness of a defendant's plea of guilty in a felony case. State v. Scott (1974), 40 Ohio App.2d 139 [69 O.O.2d 152].
The separate concurring opinion herein accepts this court's judgment, but rejects the authority upon which it is founded. I find State v. Stewart (1977), 51 Ohio St.2d 86 [5 O.O.3d 52], readily distinguishable from this cause. Additionally it not only judicially revokes the written rule as stated in the concurring opinion but abrogates the purpose of the rule, which is to enable the court to determine fully the defendant's understanding of the consequences of his guilty plea.
The majority has found that rule only requires that the defendant be advised *Page 36 as to the maximum sentence which could be imposed on the charge to which he is to plead. I conclude that in this cause the imposition of a sentence consecutively to the prior sentence is mandated by the legislature and must be considered as part of the maximum sentence resulting from a guilty plea to the initial charge. Without such knowledge, a pleading defendant could hardly grasp the consequences of his plea as required by the rule.
This precise issue was considered in State v. Ricks (1977),53 Ohio App.2d 244 [7 O.O.3d 299]. The syllabus by the court is as follows:
"1. Before accepting a plea of guilty, the trial court must inquire and determine that the defendant understands the maximum penalty involved. As part of this process the defendant must be informed whether he is eligible for consecutive or concurrent sentences. Crim. R. 11(C)(2)(a).
"2. Where the defendant is a probationer, parolee, or escapee when he commits a felony, R.C. 2929.41(B)(3) mandates that a new sentence must be served consecutively to the sentence previously imposed. The new sentence is not properly imposed on a plea of guilty when the defendant does not understand that it must be served consecutively to his former sentence."
When my brothers readily distinguish Ricks, supra, the concurring opinion recognizes the prejudice to the defendant if his plea is entered with a mistaken belief as to the consequences of such plea. Unless the purpose for the adoption of Crim. R. 11(C) is to be abandoned, then this cause should be certified as being in direct conflict with Ricks, supra.
Accordingly, I dissent from the majority's judgment and failure to certify this cause.