COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70983 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) JESSE R. JACKSON ) ) Defendant-Appellant ) Date of Announcement of Decision OCTOBER 2, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-336724 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES CHARLES H. BRAGG, ESQ. Cuyahoga County Prosecutor The Courtyard Office Park RONALD JAMES, Assistant 7055 Engle Rd., Suite 1-103 Prosecuting Attorney Middleburg Hts., Ohio 44130 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant Jesse Jackson appeals from his conviction for attempted drug abuse (R.C. 2925.11/2923.02) entered upon his guilty plea. Defendant contends his plea was not knowingly and voluntarily made and he was denied effective assistance of counsel who failed to move to suppress drugs obtained pursuant to an invalid search warrant. We find no reversible error and affirm. Defendant was arrested and charged with possession of cocaine following a controlled buy by a confidential reliable informant (CRI) at defendant's apartment. On June 19, 1996, the trial court accepted defendant's plea of guilty to the lesser included amended charge of attempted drug abuse following a colloquy with the defendant. The court determined: defendant was 61 years old and a graduate of Tri-C; he was not under the influence of any drugs or alcohol; he was not on probation or parole; he had heard what was said about the offense charged and understood it. He was then: told of his right to jury trial or waiver; he was presumed innocent until the State proved his guilt beyond a reasonable doubt; he had a right to an attorney, retained or appointed by the court; he had a right to call witnesses, to cross examine and subpoena; he had a privilege against self incrimination without unfavorable comment. After confirming his understanding, he waived all these rights by pleading guilty. (Tr. 10-16). The court confirmed defendant's understanding of the charge and explained to defendant that the attempted drug possession 3 charge was a misdemeanor of the first degree, punishable by up to six months in jail and possible fine of $1,000. The defendant acknowledged there were no promises or threats to induce the plea. Defendant admitted there was nothing he did not understand; he was satisfied with his attorney; and he stated that the guilty plea was made voluntarily, of his own free will. (Tr. 20-21). Defendant was sentenced to six months in jail, sentence suspended with one year probation and a requirement of 100 hours of community service and mandatory drug testing. Defendant timely appeals. His assignments of error will be addressed in the order asserted. I. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE SINCE THE COURT DID NOT SUFFICIENTLY EXPLAIN TO THE APPELLANT THE RIGHTS HE WAS WAIVING BY ENTERING HIS GUILTY PLEA. The taking of a plea will be affirmed on appeal so long as the reviewing court determines that the trial court substantially complied with the requirements of Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 86. Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving. State v. Nero (1990), 56 Ohio St.3d 106, 108. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. Id. Defendant specifically argues that the trial court never made a determination as to whether defendant was entering his plea 4 voluntarily, with an understanding of the nature of the charge against him and he was never informed of the effect of his plea. (Aplt. Brf. at 15). There is no merit to these contentions. The court determined that Jackson was 61 and a graduate of Tri-C; he understood he was going to plead guilty to an amended count of attempted drug abuse, a misdemeanor of the first degree; he was fully advised of the maximum penalties and the constitutional rights he was waiving by his plea; he acknowledged his understanding of everything said; no promises were made; he was satisfied with his representation. The court expressly inquired, Listen to this question. Is this plea made voluntarily and of your own free will? To which defendant responded, Yes. (Tr. 29). There is no question that the trial court substantially complied with Crim.R. 11(C)(2) in a commendable manner. Based on our review of the record, there is no factual basis for this assignment of error. Assignment of Error I is overruled. II. THE CONVICTION OF THE APPELLANT SHOULD BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. Defendant contends he was denied effective assistance of counsel due to counsel's failure to move to suppress evidence illegally obtained in a search of his apartment. This assignment of error is likewise without merit. To establish a claim of ineffective assistance of counsel, defendant must demonstrate deficiency in counsel's performance and 5 resulting prejudice to the defense. Strickland v. Washington (1984), 466 U.S. 668; State v. Post (1987), 32 Ohio St.3d 380, 388. In applying the two prong test of Strickland, the Ohio Supreme Court has stated that a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. State v. Seiber(1990), 56 Ohio St.3d 4, 11; State v. Tyler (1990), 50 Ohio St.3d 24, 37-38. A properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301. `The Constitution guarantees criminal defendants only a fair trial and competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.' State v. Combs (1991), 62 Ohio St.3d 278, 290 (quoting Engle v. Isaac (1982), 456 U.S. 107). Counsel cannot be deemed ineffective for failing to make futile requests or objections. State v. Mitchell (1988), 53 Ohio App.3d 117, 119. The Sixth Amendment's guarantee of assistance of counsel does not require defense counsel to file a motion to suppress in every case. State v. Flors (1987), 38 Ohio App.3d 133, citing Kimmelman v. Morrison (1986), 477 U.S. 365, 385-86, 91 L.Ed.2d 305, 106 S.Ct. 2574. Where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion. State v. Gibson (1980), 69 Ohio App.2d 91, 95. See, also, State v. Lott (1990), 51 Ohio St.3d 160, 6 175; State v. Harris (Sept. 29, 1994), Cuyahoga App. No. 65681, unreported. Defendant's principal contention is that the search warrant was invalid because the affiant, the police officer who had the apartment building under surveillance, could not have observed the CRI make the controlled buy at defendant's apartment #307 within the building. A similar contention was advanced and rejected by this Court in State v. Colon (Oct. 13, 1994), Cuyahoga App. No. 66985/86/87, unreported, where this Court reversed the suppression of similar evidence and stated as follows: The evidence and the affidavit at issue established that the police had good reason to believe drug trafficking was going on at 5904 Dennison Avenue, Apartment #3. They set up a CRI to make a controlled buy, searching him prior thereto to make sure there were no drugs on him and supplying him with marked bills for the purchase; the detective-affiant observed the CRI enter the apartment building and after a short period come out with cocaine and no money. The trial court suppressed the evidence because the affiant did not see the CRI go into Apartment #3 versus some other apartment at the 5904 Dennison address. This was cutting it too fine. This Court held in State v. Hunter (Oct. 22, 1987), Cuyahoga App. No. 52470, unreported, that the mere fact that the police did not actually observe the informant enter an individual apartment within the 400 unit CMHA housing complex does not render the search warrant invalid. In Hunter, the search warrant was issued for an individual apartment located in the CMHA complex located on West 25thStreet, and the police did testify, as in the present case, that they observed the informant enter and exit the apartment building. See, also, U.S. v. Davidson (C.A.6, 1991), 936 F.2d 856, 859; State v. Barkley (March 5, 1990), Stark App. No. 7897, unreported, to the same effect. 7 The issue is also governed by the Ohio Supreme Court's decision in State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraphs one and two of syllabus as follows: In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, [t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v. Gates [1983], 462 U.S. 213, 238-239, 76 L.Ed.2d 527, 103 S.Ct. 2317, followed.) In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after- the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. (Illinois v. Gates [1983], 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2327, followed.) 8 In determining the validity of a search warrant, the only question is whether the total facts presented to the issuing magistrate are sufficient to support the determination that probable cause exists. State v. Taylor (1992), 82 Ohio App.3d 434, 442. We find the issuing magistrate had sufficient grounds to find probable cause to issue the search warrant given all the surrounding circumstances. Furthermore, the affidavit in the instant case did not rely solely on information provided by the CRI. The affidavit was also supported with the detective's testimony, citizen's complaints, the surveillance of the building, and the proven reliability of the informant. See In Re Belcher (Sept. 24, 1992), Cuyahoga App. No. 61087, unreported. We are obliged to follow, as the trial court is, the Supreme Court's admonition to accord great deference to the magistrate's determination of probable cause and uphold that determination in doubtful or marginal cases. Neither the trial court nor this Court is to conduct a de novo determinationon the issue of probable cause. State v. Barkley, supra at 4. See, also, State v. Mays (1996), 108 Ohio App.3d 598, 624-25; State v. Blackshaw (May 29, 1997), Cuyahoga App. No. 70829, unreported. The affidavit of Det. William J. Robertson of the Cleveland Police Department dated November 14, 1995, contains details similar to those in the Colon case and clearly falls within the principles outlined above. We find no reason to second guess the trial judge's decision finding probable cause to issue the search warrant at issue. Assignment of Error II is overruled. Judgment affirmed. 9 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. PATRICIA A. BLACKMON, P.J., and DAVID T. MATIA, J., CONCUR. JAMES M. PORTER 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 .