I must respectfully dissent from the majority in this case. This court has, of course, followed State v. Caudill (1976),48 Ohio St.2d 342, in which the defendant pled no contest to aggravated murder, using a signed written statement which included matters required by Criminal Rule 11(C)(2). InCaudill, the trial court asked the defendant if he had read everything in the statement but did not personally inform the defendant of his rights. The Supreme Court held that the requirements of Criminal Rule 11(C)(2) were not satisfied by a written statement by defendant or by representations of his counsel. As noted above, the Supreme Court stated that Criminal Rule 11(C)(2) requires an oral dialogue between the court and defendant, which enables the court to determine fully the defendant's understanding of the nature and consequences of his plea. Subsequently, July 13, 1977, the Supreme Court decidedState v. Stewart (1977), 51 Ohio St.2d 86, in which the syllabus is quoted in the majority decision. The court also wrote, in Stewart, at page 93, as follows:
"This court finds that the trial court did inform the defendant of his constitutional rights, which were duly waived, and of various consequences of the plea. More importantly, the plea was voluntarily made, with the knowledge and understanding by the defendant that he had been promised neither `a lighter sentence, or probation, or any other form of leniency.'
"Finally, although it can validly be argued that the trial court should adhere scrupulously to the provisions of Crim. R. 11(C)(2) (State v. Caudill (1976), 48 Ohio St.2d 342), there must be some showing of prejudicial effect before a guilty plea may be vacated. See Crim. R. *Page 238 52(A). This court is of the opinion that the appellant has not demonstrated that he was in any way prejudiced by the oversight of the trial court. See Kelleher v. Henderson (C. A. 2, 1976),531 F.2d 78, where it was held that knowledge of maximum and minimum sentences is not constitutionally required; the test is whether the plea would otherwise have been made. See, also,Bell v. Estelle (C. A. 5, 1975), 525 F.2d 656. In the instant case, the factual circumstances indicated a guilty plea to a lesser offense was the wiser course to follow, and the absence of a ritualistic incantation of an admonishment which is not constitutionally guaranteed does not establish grounds for vacating the plea.
"The trial court substantially complied with the requirements in Crim. R. 11, and the failure to personally advise appellant that in entering a plea of guilty to murder he would not be eligible for probation does not rise to the status of prejudicial error."
The record shows that the following summation was presented to the trial court by the state during the acceptance of the guilty plea in this case. The appellant was dating one Fay Sammons. The murder victim was her mother, May Copley. Appellant and Fay Sammons were quarreling during September 1975, and he suspected she was involved with another man. Apparently, there were attempts at reconciliation, but on Friday, December 19, 1975, appellant told Fay Sammons that he had been looking for her with a gun, and that he would have killed her if he had found her. Appellant apparently attempted to see her again on Saturday, but she avoided him. Monday, December 22, 1975, appellant telephoned her at 6 a. m. and requested that she return a ring he gave her. She agreed, but said she did not want to see him again. Appellant called Fay Sammons several other times during that day, the final conversation taking place about 4 p. m. and lasting approximately thirty minutes. She apparently reiterated her position that the affair was over and expressed fear of him because he had a gun.
About ten minutes later, appellant walked into the victim's house, carrying a gun. Fay Sammons, her son, *Page 239 May Copley, and a neighbor were present in the house at the time. The following was presented to the trial court concerning the offenses:
"Approximately five to ten minutes after she's finished talking to him, he came through the door of her house, their house or her house, located at 3031, I believe, River-park Road, and he had a gun.
"In the house at the time was a neighbor who is a lady approximately 80 years of age, Mrs. Sammons' mother, May Copley, who was visiting at the time, and Mrs. Sammons' young son. When he came through the door, walked in the living room, pointed the gun at Mrs. Sammons and said, `I am going to kill you, but I want you to see these bullets first.' Opened the .38 revolver and spun the cylinder around and at that time Mrs. Copley, the mother of Mrs. Sammons, said to the Defendant, `Oh, Vaughn, she was just kidding,' referring to statements that had been made on the telephone, and he turned — the Defendant turned to Mrs. Copley and says, `And after I finish —' something to the effect you're next.
"He slapped the cylinder of the gun closed; he fired a shot at Mrs. Sammons; apparently, Mrs. Sammons ducked, and at that time — that time she got up and ran. Her son was standing in the doorway behind the Defendant. She ran to the cellar and the son ran to his bedroom. She told him to go hide or whatever, and Mrs. Sammons ran to the cellar of her house, apparently hiding in the closet.
"The neighbor, Mrs. Fulton, ran out the back door. Mrs. Copley attempted to run out the front door. During that time she was shot twice in the back and was found in the driveway, at the base of the driveway near the garage, with two bullet holes in her back, one piercing — coming very close to the heart, and eventually, apparently, it struck the pulmonary artery which was the cause of her death.
"The Defendant, after firing the shots at Mrs. Copley, then kicked the door in which Loren was in and said, `You might as well come out. I am going to kill the young boy.'
"Loren, who is the 11 year old, came out of the bedroom and said, `Oh. Vaughn, please don't do that.' Mr. *Page 240 Hawk said, `Oh, honey, I wouldn't hurt you,' and let the young lad go out the front door, and then he went downstairs into the basement and looked for Mrs. Sammons, who he did not find.
"After a short period of going through the basement, he went back up the stairs and got in the automobile and left. He went to a neighborhood bar, Roger's Bar. There, when he walked in the bar he made — Mrs. Hummel, actually she is the manager, would say that he came into the bar and she noticed nothing unusual about him at that time. He ordered a double-double Canadian Club and he drank it straight, tried to call his son. He called his friend, business associate, Max Sammons. Max came over to talk to him. He had another double-double, and at that time — this point he was becoming irrational. He had a gun in his pocket, and it began falling out."
Finally, near the close of the hearing, the transcript reads as follows:
"The Court: Very well. As you well know, the basis must appear on the record. I would also assume, Mr. Todaro, that since a stipulated lesser included offense is proposed, that the specifications as included in Count 1 — it is your motion to dismiss that specification, is that correct?
"Mr. Todaro: Yes, Your Honor, that is correct.
"The Court: Very well.
"Based on the indication by Counsel for both the State and for the — or by the attorneys for the Defendant, the Court will accept a plea to the lesser included offense of murder, dismissing the specifications as included in Count 1 of the indictment.
"Upon recommendation of the Prosecuting Attorney an order ofnolle prosequi will be entered as to Count 2, 3, and 4 of the indictment.
"This being a non-probationary offense, is there any reason why the Court should not proceed with the imposition of sentence in this case?"
In my judgment, considered in its totality, the record shows that the trial court complied with the requirements in Criminal Rule 11, and whatever omissions occurred did not involve prejudicial error in the context of this case, *Page 241 as set forth in State v. Stewart, supra. Accordingly, I would overrule the first two assignments of error and affirm the judgment of the trial court.