[Cite as State v. Woods,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-13-1181

Appellee Trial Court No. CR0201301681

v.

Anthony D. Woods DECISION AND JUDGMENT

Appellant Decided: September 12, 2014

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.

Ernest E. Bollinger, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Anthony D. Woods appeals an August 9, 2013 judgment of conviction and

sentence in the Lucas County Court of Common Pleas on two counts of trespass in a

habitation, violations of R.C. 2911.12(B) and (E) and fourth degree felonies. The

convictions are based upon Alford pleas, pursuant to North Carolina v. Alford,

,

,

(1970). There is no “express admission of guilt” in an Alford plea.

. When making an Alford plea, a defendant “effectively enters a

plea of guilty while still maintaining that he is innocent.” State v. Henry, 6th Dist. Wood

No. WD-08-057,

, ¶ 37.

Case History

{¶ 2} On May 2, 2013, the Lucas County Grand Jury indicted appellant on two

counts of burglary, violations of R.C. 2911.12(A)(2) and (D), second degree felonies.

The stated offense date in both counts was April 24, 2013. Under a plea agreement, the

charges were reduced to two counts of trespass in a habitation, violations of R.C.

2911.12(B) and (E), fourth degree felonies. Appellant entered Alford guilty pleas to the

reduced charges on July 23, 2013.

{¶ 3} Sentencing proceeded on August 8, 2013. The trial court sentenced

appellant to serve 17 month terms of imprisonment on both counts and ordered that the

terms be served consecutively, for a total period of incarceration of 34 months. The trial

court judgment was journalized on August 9, 2013. Appellant filed a timely notice of

appeal of the judgment to this court.

Assignments of Error

{¶ 4} Appellant asserts two assignments of error on appeal:

1. The trial court erred in convicting defendant of two felonies.

2. The court erred in consecutive sentences because the two counts

in the indictment were allied offenses of similar import.

2. {¶ 5} Under assignment of error No. 1, appellant argues that there is insufficient

evidence in the record to support convictions on two counts of trespass in a habitation.

Appellant contends that the record demonstrates that there was only one entry into the

premises and, therefore, only one trespass offense occurred. The state argues that

appellant, by his guilty plea, waived all appealable errors except errors that affect the

validity of his plea. The state also argues that the record demonstrates that there was

adequate factual support for the Alford plea.

{¶ 6} We have recognized that an Alford plea “is procedurally indistinguishable

from a guilty plea and waives all alleged errors * * * committed at trial except those

errors that may have affected the entry of a defendant’s plea pursuant to Crim R. 11.”

State v. Nguyen, 6th Dist. Lucas No. L-05-1369,

. “[T]he standard

for determining the plea’s validity is ‘whether the plea represents a voluntary and

intelligent choice among the alternative courses of action open to defendant.’” State v.

Lacumsky, 6th Dist. Ottawa No. OT-08-060,

, ¶ 7, quoting Alford,

,

,

. “Before accepting an Alford plea, the trial

court must * * * require the state to show a basic factual framework for the charge and

plea.” State v. Kafai, 6th Dist. Williams No. WM-99-001,

, *4

(Dec. 30, 1999).

{¶ 7} The Ohio Supreme Court has outlined the analysis required to determine

whether an Alford plea has been voluntarily and intelligently made:

3. [W]here the record affirmatively discloses that: (1) a guilty plea was

not the result of coercion, deception or intimidation; (2) counsel was

present at the time of the plea; (3) his advice was competent in light of the

circumstances surrounding the plea; (4) the plea was made with the

understanding of the nature of the charges; and, (5) the plea was motivated

either by a desire to seek a lesser penalty or a fear of the consequences of a

jury trial, or both, the guilty plea has been voluntarily and intelligently

made. State v. Piacella,

,

(1971).

{¶ 8} The trial court conducted a Crim.R. 11 colloquy before accepting the Alford

plea. Appellant stated that there were no promises other than the reduction of the charges

under the plea bargain made to secure his agreement to change his plea and that he had

not been threatened.

{¶ 9} Counsel was present at the time of the plea and discussed in open court the

reasons appellant decided to change his plea, despite maintaining his innocence on the

charges. Counsel explained that decision was motivated by a desire to avoid convictions

for higher offenses and longer jail or prison terms should appellant be convicted at trial.

Appellant does not claim ineffective assistance of counsel in this appeal.

Appellant stated at the plea hearing that he was satisfied with his attorney’s advice and

believed the change of pleas was in his best interest.

{¶ 10} During the plea colloquy, the trial court directly addressed the motivation

behind the Alford pleas with the appellant. Appellant acknowledged that the Alford pleas

4. were made to avoid conviction on higher offenses and incarceration for a greater period

of time. Earlier the court compared maximum and minimum sentences under the original

fourth degree felony charges to those under the second degree felony charges under the

plea agreement. The court explained that the second degree felonies both carried

minimum sentences of two years and maximum sentences of eight years. R.C.

2929.14(A)(2). The court also discussed with appellant the fact that the reduced felony

four charges under the plea agreement both carried minimum sentences of six months and

maximum sentences of 18 months. R.C. 2929.14(A)(4). The court explained that upon

conviction appellant would also face a risk that the court might order the sentences on the

two counts to be served consecutively.

{¶ 11} At the plea hearing the trial court requested the state to identify what its

evidence would have been at trial on the two original charges. The prosecutor stated that

Shayla Lacy, the victim, resides on West Woodruff in Toledo and that she and appellant

had dated in the past. They had a bad break-up in December 2012.

{¶ 12} The prosecutor stated further that appellant never had a key to Ms. Lacy’s

residence, never lived with her, and that on April 24, 2012, appellant did not have

permission to enter her home. The prosecutor stated that the evidence at trial would

demonstrate that Ms. Lacy saw appellant drive up into her driveway in his truck and that

appellant wanted to talk to her. She did not want to talk with him and told him to go

away. Appellant insisted on speaking with her. Ms. Lacy told appellant that if he did not

leave she would call police.

5. {¶ 13} According to the prosecutor the evidence was that appellant then became

angry and threatened Ms. Lacy, stating, “Let me get to you first and I’ll give you a reason

to call the police.” Appellant kicked at the door to the residence and demanded entry.

The prosecutor stated that the evidence would demonstrate that Ms. Lacy saw appellant

approach a window to the residence after he could not gain entry at the door. She feared

that he would come in through the window and, therefore, ran out the back of the house.

As she ran, Ms. Lacy saw appellant step his feet through her front window into the

residence.

{¶ 14} Ms. Lacy called police from a neighbor’s house. According to the

prosecution, the evidence would demonstrate that at some point Ms. Lacy saw appellant

drive his truck out of her driveway. Afterwards she returned to her house and met police

at her residence. While not finding appellant, police found that the front window screen

was broken out and was on the front porch. On the inside of the residence, the window

curtain and curtain rod were found on the floor.

{¶ 15} The prosecutor stated that after the police left, appellant began to tend to

the window screen. Ms. Lacy heard a noise from inside the house. Her children were at

school. No one else was to be in the residence. She became nervous and left, around

noon. This was one hour and 20 minutes after the first incident.

{¶ 16} According to the prosecutor, the evidence would show that after Ms. Lacy

left the house she saw appellant’s truck parked three streets away. Appellant was not in

6. the truck. Concerned appellant was in the house, Ms. Lacy called the police again. They

responded and found appellant hiding in the basement of the house.

{¶ 17} Upon questioning by the court, the prosecutor explained that there were

two incidents of unlawful entry into the residence by appellant. The first incident ended

when appellant drove away in his truck. The second occurred when appellant re-entered

the residence and remained until he was subsequently found by police in the basement.

{¶ 18} On appeal, appellant challenges the accuracy of the state’s summary of

facts that was provided at the plea hearing. Appellant claims that only one trespass

occurred, contending that he entered the Lacy home, hid in the basement, and remained

there until police returned and found him. Appellant claims that there is no factual basis

to support convictions on two counts of trespass in habitation arising from events at the

Lacy residence on April 24, 2013. The state responds that if appellant believed the

state’s evidence was insufficient to secure a conviction on the charges in the indictment

that he should have refused the plea offer and proceeded to trial.

{¶ 19} The state argues further that appellant’s own statement at the sentencing

hearing demonstrates that there were two incidents of unlawful entry into Ms. Lacy’s

residence on April 24, 2013. The state argues that appellant admitted at sentencing that

he entered the residence, left, and then re-entered before police arrived.

{¶ 20} We have reviewed the record, including transcripts of the change of plea

and sentencing hearings. The record discloses that appellant admitted at the sentencing

hearing that he was “in the window” when he saw Ms. Lacy fleeing out the back door.

7. The court questioned appellant as to why he moved his truck. Appellant responded that

he went to the truck to “go around the block to look for her.” Appellant also admitted

that when he was unsuccessful in finding Ms. Lacy, he parked the truck, returned to the

residence, and entered through the back door. He hid in the basement when he saw

police arrive.

{¶ 21} Further the record demonstrates that the victim was unequivocal stating

that two unlawful entries occurred—the first when appellant stepped through the front

window and, the second, after appellant moved his truck, returned, and was subsequently

found by police hiding in the basement.

{¶ 22} In our view appellant was facing strong evidence supporting two

convictions for burglary when he chose to enter the two Alford pleas. The indictment

charged appellant with two counts of burglary, violations of R.C. 2911.12(A)(2) and (D).

The statute provides:

(A) No person, by force, stealth, or deception, shall do any of the

following:

***

(2) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure that is a permanent or

temporary habitation of any person when any person other than an

accomplice of the offender is present or likely to be present, with purpose

to commit in the habitation any criminal offense;

8. ***

(D) Whoever violates division (A) of this section is guilty of

burglary. A violation of division (A)(1) or (2) of this section is a felony of

the second degree. A violation of division (A)(3) of this section is a felony

of the third degree.

{¶ 23} The fact that appellant stepped through the window alone in the first

incident is sufficient to meet the trespass element for a burglary conviction:

The trespass element of Ohio’s burglary statute does not require that

the defendant’s body completely enter the victim’s home. “‘In proving the

element of unlawful entry in the criminal prosecution of defendant upon a

charge of burglary, proof of the insertion of any part of defendant’s body is

sufficient to constitute an entrance.’” State v. Cuthbertson (June 1, 1976),

Hamilton App. No. No. C-75362, at *2, quoting State v. Harris (1943),

,

. Further, “‘[i]t is not necessary that the party

shall get his whole body into the house, and the least entry of any part of

the body is sufficient.’”

quoting 12 C.J.S. 673, Burglary Sec. 10. State

v. Rudolph, 8th Dist. Cuyahoga No. 92085,

, ¶ 18.

{¶ 24} The Second District Court of Appeals ruled in State v. Kelley, 2d Dist.

Clark No. 2011 CA 37,

, that sticking one’s body in a window

broke the plane of the structure and established the trespass element of burglary. In State

v. Gonzales, 6th Dist. Wood No. WD-12-037,

, we cited the decisions in

9. Rudolph and Kelley with approval in concluding that a trespass occurred by the

defendant’s breaking the plane of a doorway by 6-12 inches. Id. at ¶ 28-33.

{¶ 25} We conclude that the Alford pleas were not the result of coercion,

deception, or intimidation. Counsel was present at the time of the plea. We also

conclude that counsel’s advice to enter the Alford pleas was competent in light of the

circumstances surrounding the plea. The plea hearing colloquy demonstrates that the

appellant made the change of plea while understanding the nature of the charges. Finally,

the record demonstrates that the Alford pleas were motivated by a desire to avoid

convictions on second degree felony burglary charges and to seek lesser sentences under

the reduced fourth degree felony charges under the plea agreement. Accordingly, we

conclude that appellant’s Alford pleas were voluntarily and intelligently made.

{¶ 26} We find assignment of error No. 1 not well-taken.

{¶ 27} Under assignment of error No. 2, appellant contends that the convictions

for trespass in habitation charges were for allied offenses of similar import and that the

trial court erred in failing to merge the convictions for purposes of sentencing and

imposing a single sentence. The argument is based protections afforded under the double

jeopardy clauses of the constitutions of the United States, the state of Ohio, and R.C.

2941.25.

{¶ 28} Appellant argues that a single incident and only one entry into the premises

occurred. He contends that the convictions are not only allied offenses under R.C.

10. 2941.25, but a single incident. The state argues that there were two separate, complete,

and unlawful entries into the Lacy residence, separated by a period of time.

{¶ 29} R.C. 2941.25 provides:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant

may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses

of the same or similar kind committed separately or with a separate animus

as to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them. (Emphasis

added.)

{¶ 30} The Ohio Supreme Court outlined the required analysis under R.C. 2941.25

in State v. Johnson,

,

,

. We

recently summarized the analysis in State v. McCormick, 6th Dist. Lucas Nos. L-13-1147

and L-13-1148,

, ¶ 13:

The test to determine if multiple charges should be classified as

allied offenses is two-pronged: (1) “whether it is possible to commit one

offense and commit the other with the same conduct” and (2) “whether the

offenses were committed by the same conduct, i.e., ‘a single act, committed

11. with a single state of mind.’” Id. at ¶ 48-49, quoting State v. Brown,

,

,

. “[I]f the court

determines that the commission of one offense will never result in the

commission of the other, or if the offenses are committed separately, or if

the defendant has separate animus for each offense, then, according to R.C.

2941.25(B), the offenses will not merge.” Johnson at ¶ 51. When counts

merge, the trial court must sentence on only one of the offenses. State v.

Alcala, 6th Dist. Sandusky No. S-11-026,

,

, ¶ 40.

{¶ 31} R.C. 2911.12(B) sets forth the offense of trespass in habitation. It

provides: “No person, by force, stealth, or deception, shall trespass in a permanent or

temporary habitation of any person when any person other than an accomplice of the

offender is present or likely to be present.” While trespass in habitation and burglary

both require trespass, the trespass in habitation offense does not require proof that the

unlawful entry was with purpose to commit a criminal offense. R.C. 2911.12(A);

2911.12(B).

{¶ 32} The first offense of trespass in habitation occurred when appellant, having

been unable to force his way through the front door, unlawfully entered the Lacy

residence by removing the screen and stepping through the window. The offense was

complete upon making the unlawful entry into the residence, just as we have recognized

that a burglary offense is completed “once the perpetrator enters the occupied residence

12. with the intent to commit a crime.” See State v. Knight, 6th Dist. Lucas No. L-13-1066,

, ¶ 12; State v. Overton, 6th Dist. Lucas Nos. L-12-1137 and L-12-1138,

, ¶ 12.

{¶ 33} The second offense occurred later, after Ms. Lacy fled the residence.

Appellant unsuccessfully pursued her in his truck, parked three blocks away, and returned

to the residence on foot. Appellant then entered the residence through the back door and

was later apprehended by police in the basement. The record does not establish the time

of when appellant returned to the house. It likely occurred between 10:40 a.m. (time of

the first incident) and 12:00 noon (when Ms. Lacy heard a noise from inside the house,

left the residence, and later called police for the second time).

{¶ 34} These two offenses were not committed by the same conduct.

{¶ 35} The Tenth District Court of Appeals has identified factors to consider in

determining whether two crimes were separately committed or with separate animus

under R.C. 2941.25 analysis:

Separate conduct or separate animus may occur when a court

determines the “defendant at some point broke ‘a temporal continuum

started by his initial act.’” State v. Roberts,

,

,

, quoting State v. Williams, 8th Dist. No.

89726,

; State v. Hines, 8th Dist. No. 90125, 2008-

Ohio-4236, ¶ 48. Alternatively, a separate conduct or animus may exist

when “facts appear in the record that ‘distinguish the circumstances or draw

13. a line of distinction that enables a trier of fact to reasonably conclude

separate and distinct crimes were committed.’”

(noting facts also may

support a separate animus where the defendant’s conduct “created a

‘substantial independent risk of harm’”). State v. Nuh, 10th Dist. Franklin

No. 10AP-31,

, ¶ 16.

{¶ 36} We conclude that separate and distinct crimes were committed and the

offenses are not allied offenses of similar import under R.C. 2941.25. The circumstances

demonstrate that the first trespass into the residence occurred as appellant stepped

through the window of the house as the victim fled. The second occurred after appellant

unsuccessfully pursued the victim through the neighborhood and re-entered the house

through the back door. The first offense was completed before the second offense began.

{¶ 37} We find assignment of error No. 2 not well-taken.

{¶ 38} Justice having been afforded the party complaining, we affirm the

judgment of the Lucas County Court of Common Pleas. We order appellant to pay the

costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

14. State v. Woods C.A. No. L-13-1181

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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