COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69776 STATE OF OHIO : ACCELLERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION BERTHA BURDETTE : : PER CURIAM Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 16, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 257373 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Stephanie Tubbs-Jones, Esq. Leonard W. Yelsky, Esq. Cuyahoga County Prosecutor Angelo F. Lonardo, Esq. By: Diane Smilanick, Esq. Yelsky & Lonardo, Co., L.P.A. Assistant Prosecuting Atty. 1050 Leader Building The Justice Center Cleveland, Ohio 44114 1200 Ontario Street Cleveland, Ohio 44113 -3- PER CURIAM: This is an accelerated appeal brought pursuant to App.R. 11.1 and Loc.R. 25 of the Court of Appeals of Cuyahoga County. Plaintiff-appellant, state of Ohio ("the state"), appeals from the judgment of the Court of Common Pleas of Cuyahoga County which granted defendant-appellee, Bertha Burdette's petition for post- conviction relief pursuant to R.C. 2953.21. For the reasons herein, we affirm the trial court's decision. The apposite facts are adduced from the record. Appellee, a seventy-year-old woman was indicted for murder on September 17, 1990, following the shooting death of Walter McCormick. The indictment carried a firearm specification. The matter was set for trial before a jury. Appellee entered a plea of not guilty and was released on bond. Appellee privately retained the legal services of David Williamson. Trial commenced on January 28, 1991. On January 29, 1991, appellee plead guilty to the lesser included offense of voluntary manslaughter. On February 19, 1991, appellee appeared for sentencing on the charge of voluntary manslaughter. The trial court sentenced her to a term of imprisonment of five (5) to twenty-five (25) years in the Ohio State Reformatory for women, plus three (3) years actual time on the gun specification, to be served prior to and consecutive to the five (5) to twenty-five (25) year sentence. On July 5, 1995, appellee's new counsel filed a petition for post-conviction relief in the court of common pleas, seeking to vacate appellee's January 29, 1991 guilty plea. Appellee asserted -4- that her prior counsel, Mr. Williamson, made false representations to her and coerced her into changing her plea. She maintains that she abandoned a viable and complete defense to the offenses charged as a result of Mr. Williamson's representations. In support of her post-conviction relief petition, appellee attached the January 29, 1991 change of plea transcript, the February 19, 1991 sentencing transcript, and her sworn affidavit. The state filed a motion to dismiss. On October 11, 1995, the court conducted a full evidentiary hearing on appellee's petition. The court granted the motion for post-conviction relief and also granted a new trial. The state timely appeals from the trial court's granting of appellee's petition for post-conviction relief. The state raises the following assignment of error for this court to review: WHETHER THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR POST-CONVICTION RELIEF WHERE THE REASONS GIVEN FOR A NEW TRIAL ARE DEFICIENT FACTUALLY AND IN LAW. In the state's sole assignment of error, the state asserts that the trial court erred when it granted appellee's motion for post-conviction relief and granted a new trial. According to the state, appellee voluntarily and knowingly entered her guilty plea. Moreover, the state submits the record demonstrates that the trial court complied with the requirements of Crim.R. 11(C)(2). State v. Stewart (1972), 51 Ohio St.2d 86. R.C. 2953.21(A) sets forth the procedures which govern post- conviction relief proceedings. Post-conviction relief is a proceeding whereby any person convicted of a criminal offense or -5- adjudged delinquent may seek to vacate his conviction on the basis that there was a denial or infringement of his rights as protected by the Ohio Constitution or the Constitution of the United States. State v. Harvey (1980), 68 Ohio App.2d 170. The trial court must consider the petition, as well as the entire record, to determine whether there are substantive grounds for relief. R.C. 2953.21(C). State v. Brook (Mar. 10, 1994), Cuyahoga App. No. 65088, unreported. Absent an abuse of discretion, a reviewing court will not overrule a trial court's finding on a petition for post-conviction relief which is supported by competent, credible evidence. See State v. Stallings (July 15, 1993), Cuyahoga App. No. 63147, unreported. When a trial court rules on a petition for post-conviction relief after a hearing, an appellate court will give deference to the trial court's findings of fact. See State v. Jolly (June 24, 1993), Cuyahoga App. Nos. 62380 and 63212, unreported. In the case at bar, the trial court considered the following evidentiary material: the change of plea transcript, the sentencing transcript, and appellee's affidavit. The trial court found the evidentiary material to be competent and credible. Based on the evidentiary material before the trial court, the court determined that appellee had established the substantive grounds entitling her to post-conviction relief. Accordingly, appellant's assignment is overruled. Stallings; Jolly. Judgment affirmed. -6- It is ordered that appellee recover of appellant her 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE ANN DYKE, JUDGE TIMOTHY MCMONAGLE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .