COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70369 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH HALLIWELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-325884 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. FRED C. CROSBY, ESQ. Cuyahoga County Prosecutor 20676 Southgate Park Blvd. FRANCINE B. GOLDBERG, ESQ. Suite 103 MARILYN BARKLEY CASSIDY, ESQ. Maple Heights, Ohio 44137 Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on three counts stemming from an incident which occurred on June 13, 1995. The indictment included one count of aggravated menacing, one count of aggravated burglary and one count of aggravated vandalism. Appellant entered a plea of guilty to aggravated menacing, burglary and aggravated vandalism. The trial court judge sentenced him to six months on the first count, four to fifteen years on the second count, to run concurrent with the first, and one year on the third count, to run consecutive to the first two. After sentencing, appellant filed a motion to vacate his plea and a motion for reconsideration of sentencing. Following a hearing on February 15, 1996, both motions were denied. Appellant appeals from the denial of his motion to vacate his guilty plea, asserting two assignments of error. I THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT'S MOTION TO VACATE HIS PLEA. Appellant argues that he was not informed by his attorney that he had a valid defense to the burglary charge, in that the home he was accused of entering with the intent to commit a crime was his own residence. Appellant contends that the plea was not entered voluntarily, intelligently and knowingly without his knowledge of such a defense. Appellant's argument is not well taken. Crim.R. 32.1 allows the withdrawal of a guilty plea following the imposition of sentence only to correct a manifest injustice. - 3 - The issue here is whether a manifest injustice existed in allowing appellant to plead guilty to the charge of burglary. The standard of review to be applied to the denial of a post-sentence motion to vacate a guilty plea is limited to whether the trial court abused its discretion. State v. Blatnik (1984), 17 Ohio App.3d 201. This Court has held that: A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request. State v. Peterseim (1980), 68 Ohio App.2d 211, paragraph three of the syllabus. Appellant's motion to vacate the plea asserted only that appellant's defense counsel failed to fully inform him of the consequences of his plea. During the hearing on appellant's motion to withdraw the plea, defense counsel argued that appellant was never informed that he had a defense to the offense of burglary. Appellant claimed he was not told that a husband can never trespass on his own property, therefore an element of burglary could not have been established by the State. The trial court found that appellant was represented by a competent attorney at the time of appellant's plea hearing. The court further found that the plea had been entered knowingly, - 4 - intelligently and voluntarily by appellant while represented by counsel. Evidence was presented by several witnesses that both appellant and Fay moved into a condominium together at the end of March. Fay testified that Joe brought with him his clothes, computer and collection of baseball paraphernalia. They chose furniture together, for which Fay paid. On an evening in June, appellant and Fay had an argument while in a bar. Fay testified before the Bedford Municipal court that appellant had punched her in the face. She left him at another bar in Euclid and returned home to the condominium. After hearing the life threatening messages appellant left on her answering machine, Fay left her home and spent the night with her son at the home of a friend. Appellant made his way back to the condominium, shattered the sliding glass door at the back of the house to gain entrance, and thoroughly destroyed the contents of the entire home. The photographs in the record show not only broken furniture and food- strewn carpeting but also ominous and anti-Semitic threats on the mirror and vanity top in the bathroom, written in lipstick, and carved into the drywall above the bed. A butcher knife was found stuck in the passenger's seat of Fay's Jeep Cherokee in the garage. At appellant's plea hearing the prosecutor read the text of the charges. The court questioned appellant as to whether he understood the statements made by the prosecutor and his own attorney. Appellant responded that he understood what they said. - 5 - The trial court reviewed the constitutional rights appellant would be waiving by entering his plea. The court proceeded to review the possible sentences on each of the offenses. The court addressed appellant, asking: [Court:] Are you making this plea freely and voluntarily of your own free will and best judgment? [Appellant:] Yes, I am. [Court:] And are you, in fact, guilty of on June 13th, 1995, in the county of Cuyahoga, unlawfully, and by force, stealth or deception, trespassing in an occupied structure or in a separately secured or separately occupied portion, thereof, with the purpose to commit therein a theft offense or a felony? Are you guilty of that? [Appellant:] Yes, sir. (Sept. 27, 1995, plea hearing transcript, pp. 9 - 10.) Given appellant's familiarity with the criminal justice system, with numerous prior convictions including burglary and trespassing, and his ability to communicate intelligently at his sentencing hearing and in written form to the court, we find that appellant was capable of understanding the elements of the burglary offense as it was outlined by both the prosecution and the court during his plea hearing. Even if appellant's argument at the hearing to withdraw the plea is accepted, and we believe that appellant's attorney never mentioned that appellant had a defense to the burglary offense, appellant was clearly apprised of the meaning of the offense when he pleaded guilty to burglary. Evidence is insufficient as to ownership of the condominium, but that fact does not change the validity of his guilty plea. - 6 - Appellant implicitly admitted to trespass on the property by his failure to raise the issue at the plea hearing. We find no abuse of discretion on the part of the trial court judge in denying appellant's motion to vacate his plea of guilty. Appellant was represented by competent counsel, afforded a full plea hearing, as well as another opportunity to be heard on his motion to vacate the plea and the record reveals that the court gave full and fair consideration to the request to withdraw the plea. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED BY NOT PROVIDING WRITTEN CONCLUSIONS OF FACT AND LAW WHEN DENYING APPELLANT'S MOTION TO VACATE HIS PLEA. Appellant asserts that the trial court violated its duty to provide him with written conclusions of law and findings of fact following the denial of his motion to vacate his plea. Appellant's assertion is without merit. Appellant filed a written motion requesting written findings of fact and conclusions of law from the trial court pertaining to the denial of appellant's motion to vacate his guilty plea. Appellant cited R.C. 2953.21 in support of his motion. R.C. 2953.21(C) allows a trial court to dismiss a post-conviction relief petition. However, a court must issue findings of fact and conclusions of law with respect to the dismissal. Appellant did not file a post-conviction relief petition with the trial court, citing a constitutional violation of his rights to - 7 - render the conviction void or voidable. Appellant filed a motion to vacate the judgment of conviction so that he could withdraw his plea of guilty under Crim.R. 32.1. A post-conviction relief petition requests a civil remedy for errors which could not have been raised at trial or on direct appeal, under the doctrine of res judicata. State v. Combs (1991), 73 Ohio App.3d 823. Appellant's motion is governed by Crim.R. 32.1 because the issue is properly before this court on direct appeal. Crim.R. 32.1 does not require a court to issue written findings of fact or conclusions of law upon dismissal of a motion to vacate the conviction and allow withdrawal of the plea. Appellant's second assignment of error is overruled. Appellant's conviction on all three counts is affirmed. - 8 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas 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. BLACKMON, P.J., CONCURS McMONAGLE, J., CONCURS (SEE ATTACHED CONCURRING OPINION) ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). - 2 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70369 STATE OF OHIO : : Plaintiff-appellee : : vs. : CONCURRING OPINION : JOSEPH HALLIWELL : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 19, 1996 TIMOTHY E. McMONAGLE, J., CONCURRING: Although I agree with the majority's conclusion, I disagree with the rationale employed and, therefore, write separately to address the issue presented under appellant's first assignment of error. At issue under this assignment of error is whether the trial court erred in denying appellant's motion to vacate his guilty plea where appellant claims he received ineffective assistance of counsel because he was never informed he had a defense to the charge of burglary. Specifically, appellant claims that trespass - 3 - is an element of burglary and, as such, he could not be found guilty of trespassing his own home. Crim.R. 32.1 permits a criminal defendant to withdraw his plea of guilty after sentence is imposed to correct a manifest injustice. Furthermore, a defendant may premise this motion on 1 ineffective assistance of counsel. In order to prevail on such a claim, however, the defendant must show (1) that counsel's performance was deficient and (2) that there is a reasonable probability that, but for counsel's errors, he would not have pled 2 guilty. The failure of counsel to provide competent advice impairs the knowing and voluntary nature of the plea and forms the 3 basis of the ineffective assistance of counsel claim. Effective assistance of counsel, however, does not guarantee results, and the consequences of counsel's advice are not the only 4 measure of effectiveness. Moreover, counsel's failure to put forth a defense that, most likely, would be unsuccessful does not 5 constitute ineffectiveness. 1 State v. Xie (1992), 62 Ohio St.3d 521. 2 Xie, supra, at 524. 3 State v. Barnett (1991), 73 Ohio App.3d 244, 248. 4 State v. Longo (1982), 4 Ohio App.3d 136, 139. 5 State v. Donner (1994), 96 Ohio App.3d 486, 491-492 (defen- dant asserted that she pled guilty based upon her attorney's erroneous advice that she did not have defense to charges against her; however, evidence did not support that battered woman defense would have had a good chance of being successful). - 4 - On the other hand, the existence of a valid defense has been 6 sufficient to vacate a guilty plea. In Hollis, this court held that the trial court abused its discretion in denying a motion to vacate a guilty plea where the defendant could not be found guilty of welfare fraud because the statute of limitations had elapsed. That decision was premised on counsel's ineffectiveness for failing to advise defendant or put forth the defense of statute of limitations. It therefore becomes necessary to determine if the appellant in this case has a defense to the charge of burglary. Because trespass is an element of burglary, appellant contends he cannot be found guilty of burglary because he cannot be found guilty of trespassing his own home. By definition, trespass requires knowingly entering or remaining on the premises of another, without privilege to do so. R.C. 2911.21. Moreover, trespass is an invasion of the possessory 7 interest of property, not the invasion of title. It is, therefore, immaterial in whose name the property is titled. The use of force or violence, however, to enforce a possessory 8 interest turns an authorized entrance into a trespass. 6 State v. Hollis (1991), 91 Ohio App.3d 371. 7 State v. Herder (1979), 65 Ohio App.2d 70, 74. 8 State v. Herrin (1982), 6 Ohio App.3d 68; State v. Winbush (1975), 44 Ohio App.2d 256; see, also, State v. Norton (Mar. 4, 1993), Cuyahoga App. No. 61902, unreported and Cleveland v. Wallace Towns (June 12, 1986), Cuyahoga App. No. 50512, unreported. - 5 - Consequently, if force is used by one of two individuals sharing a residence, a trespass has occurred regardless of the possessory interest of the one who forcibly entered. In this case, appellant forcibly entered the residence he shared with Ms. Drusinsky by breaking the sliding glass door of the parties' condominium. Relying on Winbush and Herrin, a trespass has occurred despite the fact that appellant resided at that property. Appellant, therefore, did not have a valid defense for his counsel to bring to the attention of the trial court. As a result, defense counsel's performance was not deficient so as to require the trial court to vacate his guilty plea. Accordingly, appellant's argument that his guilty plea was not .