STATE OF OHIO, Plaintiff-Appellee, vs. GREGORY ALLEN LEONARD, Defendant-Appellant.
APPEAL NO. C-130474
TRIAL NO. B-1302836
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 5, 2014
[Cite as State v. Leonard, 2014-Ohio-3828.]
CUNNINGHAM, Presiding Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed; Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee; Roger W. Kirk, for Defendant-Appellant.
O P I N I O N.
{¶1} Defendant-appellant Gregory Allen Leonard appeals from the judgment of the Hamilton County Court of Common Pleas convicting him, after a guilty plea, of trafficking in marijuana, in violation of
Background Facts
{¶2} Leonard was arrested on drug charges after the police during a traffic stop found a bag containing 460 grams of marijuana on the front-passenger seat of Leonard‘s car. He was later indicted on a fourth-degree-felony offense of trafficking in marijuana and a fifth-degree-felony offense of possession of marijuana. Defense counsel moved for discovery and asked for a bill of particulars.
{¶3} Leonard then pleaded guilty to the trafficking offense. Prior to accepting Leonard‘s plea, the trial court addressed Leonard to ascertain whether his plea was madе voluntarily, intelligently, and with knowledge of its consequences. As part of the
{¶4} The trial court thereafter accepted Leonard‘s plea and, upon the prosecutor‘s recitation of the facts, found him guilty as charged on the trafficking offense, and dismissed the possession offense. Before imposing sentence, the court ordered a presentence investigation (“PSI“), which required Leonard to meet with a rеpresentative from the adult probation department. Leonard appeared for his PSI interview after the conclusion of the plea hearing, but he left the interview after becoming ornery. The PSI indicated that Leonard had already provided a DNA sample to law enforcement.
{¶6} To that end, Leonard told the court that he had filed the motion because he was confused by the process of the presentence investigation because he thought that he had already been sentenced to “one year of nonrepоrting probation.” The trial court reminded Leonard, apparently to Leonard‘s satisfaction, that the process of the presentence investigation had been explained to him at the plea hearing and that he had not been promised one year of nonreporting community control in court.
{¶7} The court then asked Leonard if he was guilty of the offense. Leonard stated, “well, I‘m not a trafficker.” The court confirmed that there was an adequate factual basis of the trafficking charge and concluded that Leonard did not want to accept “reality.” The trial cоurt found that Leonard had been represented by “highly competent” counsel and that he had understood the nature of the charges and the possible penalties. The court also found that the granting of the motion would result in prejudice to the state. However, the state did not claim prejudiсe and the court did not identify a basis for its finding of prejudice.
{¶8} The trial court then overruled the motion and imposed a sentence of one year of community control, with the conditions of monthly drug testing and 40 hours of community service. The court also imposed court costs. Leonard now apрeals from his judgment of conviction, raising three assignments of errors.
Notification of Maximum Potential Penalties
{¶9} In his second assignment of error, which we address first, Leonard argues that the trial court erred by accepting a plea that was not knowingly,
{¶10}
{¶11} Leonard argues that the trial court failed to notify him of the maximum penalty involved, because the court failed to tell him that he would be required to рrovide a DNA sample and that if he failed to do so he could be sanctioned.
{¶12} We assume that Leonard‘s argument pertains to
{¶13} Because Leonard was placed on community control, the statute would require Leonard to provide a DNA specimen as a condition of community control if he had not already provided one when he was arrеsted.
{¶14} We reject Leonard‘s argument, without examining whether
{¶15} Leonard also suggеsts that the trial court‘s failure to provide him notice of the possible immigration-related consequences of his plea, as set forth in
{¶16}
{¶17} In this case, Leonard indicated on the plea form that he was a citizen of the United States. Therefore, the trial court was not required to provide the wаrning set forth in
{¶18} We conclude, as the trial court did, that Leonard‘s plea was voluntary, intelligent, and with knowledge of its consequences. Accordingly, we overrule the second assignment of error.
Denial of Presentence Motion to Withdraw Plea
{¶19} In his first assignment of error, Leonаrd contends that the trial court abused its discretion when it denied his presentence motion to withdraw his guilty plea.
{¶21} We will not reverse a trial court‘s denial of a presentence motion to withdraw a plea absent a showing of an abuse of discretion, meaning that the trial сourt‘s decision was unreasonable, arbitrary or unconscionable. See id. at paragraph two of the syllabus; State v. Calloway, 1st Dist. Hamilton No. C-040066, 2004-Ohio-5613, ¶ 11.
{¶22} In determining whether the trial court abused its discretion, we review the record in light of certain Fish factors that we have identified in our previous decisions. See Calloway at ¶ 12, citing State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). These factors include: (1) whether the accused was reрresented by highly competent counsel; (2) whether the defendant was afforded a complete
{¶23} Leonard argues that it was an abuse of discretion to deny his motion because he had proclaimed his innocence and the record does not demonstrate that the state would have bеen prejudiced by his withdrawal.
{¶25} In his written motion, which was not filed until the day before the sentencing hearing, Leonard did not identify a reason to withdraw the plea. Notwithstanding this deficiency, the trial court afforded Leonard a full and impartial hearing on the motion to withdraw and fully considered Leonard‘s arguments presented at the hearing in support of the motion.
{¶26} Leonard‘s purported claim of innocence was limited to his ambiguous comment at the hearing on the motion to withdraw that he was “not a trafficker.” But at the plea hearing, Leonard did not challenge the state‘s recitation of the facts or insinuate that he had any defenses. Instead, he acknowledged to the court that by pleading guilty, he was “mak[ing] a complete admission of [his] guilt.”
{¶27} Further, while the state when reciting the factual allegations of the offense at the plea hearing did not present many specific facts to demonstrate that Leonard was trafficking the drugs, as opposed to possessing them for personal use, thе PSI report included the arresting officer‘s statement that there was evidence of trafficking. Ultimately, there is nothing in the record to indicate that Leonard had pleaded guilty to a crime he did not commit.
{¶28} Admittedly, as Leonard suggests, the record does not support the trial court‘s determination thаt the state would be prejudiced if the court had set aside his plea. Prejudice to the state in this context is usually tied to passage of time, which can result in stale evidence and unavailable witnesses. See State v. Preston, 2d Dist. Montgomery No. 25393, 2013-Ohio-4404, ¶ 31; State v. Jefferson, 1st Dist. Hamilton No. C-020802, 2003-Ohio-4308, ¶ 9. The record in this case does not demonstrate any prejudicial passage of time. Leonard moved to vacate his plea less than a month after the plea hearing and less than two months after his indictment, and the state did not indicate that any witness had become unavailable.
{¶29} But prejudice to the state was only one factor for the court to consider. And in this сase, where the other factors weighed against the granting of the motion, we cannot say that the trial court abused its discretion in denying Leonard‘s motion. Calloway, 1st Dist. Hamilton No. C-040066, 2004-Ohio-5613, at ¶ 17.
{¶30} Leonard also claims under the first assignment of error that he was denied the effective assistance of counsel because defense counsel did not file the motion to withdraw the plea and advocate the merits of it. To prevail on his claim that trial counsel was ineffective, Leonard must demonstrate that trial counsel‘s performance was deficient and that he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989).
{¶31} With respect tо prejudice, the defendant must show there is a reasonable probability that, but for his counsel‘s unprofessional errors, the outcome of the proceeding would have been different. Strickland at 694. “A defendant‘s failure to satisfy” the prejudice prong of the Strickland test “negates a court‘s need to considеr” the deficiency prong. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶32} In this case, the trial court accepted Leonard‘s pro se motion, fully considered his arguments in support of the motion, and ultimately denied it, despite counsel‘s alleged deficiencies with respect to the motion. Thus, Leonard has failed to show that he was prejudiced by counsel‘s performance. As a result, his ineffective assistance of counsel claim lacks merit.
R.C. 2947.23(A)(1)‘s Community-Service Notification
{¶34} In his third assignment of error, Leonard argues that the trial court erred by failing to notify him at the sentencing hearing that he could be ordered to perform community service if he failed to pay his court costs.
{¶35}
{¶36} In this case, the triаl court imposed community control but did not notify Leonard, in accordance with
{¶37} Leonard contends that due to this failure, this court must remand the case to the trial court for the proper notification, consistent with prior case law interpreting a former version of the statute. See State v. Dillard, 1st Dist. Hamilton No. C-120058, 2012-Ohio-4018. But Leonard was sentenced under the current version of the statute, which provides that the trial court‘s failure to provide the notification set forth in
{¶38} In light of the new language in the statute, we decline to remand the case for the notification. See State v. Brown, 12th Dist. Butler No. CA2013-03-043, 2014-Ohio-1317, ¶ 31, citing State v. Huntsman, 7th Dist. Monroe No. 13MO6, 2014-Ohio-440, ¶ 14. The assignment of error is overruled.
Conclusion
{¶39} The judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT and DINKELACKER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.