STATE OF OHIO, Appellee, - vs - TOMAS LEONICIO, Appellant.
CASE NO. CA2022-08-077
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
7/17/2023
[Cite as State v. Leonicio, 2023-Ohio-2433.]
HENDRICKSON, P.J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2022-03-0367
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Appellant, Tomas Leonicio, appeals from his conviction in the Butler County Court of Common Pleas following his guilty plea to attempted failure to verify a current residence. For the reasons set forth below, we affirm his conviction.
{¶ 2} On March 23, 2022, appellant was indicted on one count of failure to verify a current residence, school, institution of higher education, or place of employment address
{¶ 3} On July 18, 2022, following the state‘s response to appellant‘s discovery request and the parties’ plea negotiations, appellant pled guilty to an amended charge of attempted failure to verify a current residence, a felony of the fifth degree. The trial court engaged appellant in a
{¶ 4} At the August 15, 2022 sentencing hearing, the trial court heard from defense counsel, appellant, and the state. Appellant expressed remorse for his actions and explained that around the time he was supposed to verify his residential address, he had broken his arm. The trial court then addressed appellant, noting that appellant had previously served a prison sentence for failing to verify his residence. The court commented appellant had done “nine months on this same thing just a year ago.” After considering the record before it, the PSI, the statements presented at the sentencing hearing, the principles and purposes of felony sentencing pursuant to
{¶ 5} Appellant appealed his conviction, raising two assignments of error for review. However, before we can reach the merits of appellant‘s assigned errors, we must address
State‘s Motion to Strike & Appellant‘s Motion for Judicial Notice1
{¶ 6} In appellant‘s brief, appellant‘s counsel included a partial image of a judgment entry that was signed by Hamilton Municipal Court Judge Daniel J. Gattermeyer on May 15, 2017. The image does not contain a case caption identifying the court, the name of the defendant, or the case number. It also does not identify the offense for which a 60-day jail term and two-year community control sanction was imposed. As “Specific Community Control Sanctions,” the entry provides that the “defendant” is to have “no contact” with a named victim and is “to comply with sexual predator requirements.”
{¶ 7} Appellant‘s counsel represented that the partial image had been taken from appellant‘s May 15, 2017 judgment entry sentencing him for sexual imposition in the Hamilton Municipal Court, a judgment entry that counsel indicated had been contained in the state‘s discovery response. Relying on this partial image, appellant argued in his appellate brief that the 2017 judgment entry failed to classify him as a tier I sex offender and that he did not have a duty to register his address, thereby affecting the validity of his July 18, 2022 guilty plea to the charge of attempted failure to verify a current residence.
{¶ 8} The state‘s June 23, 2022 discovery response identified a “Judgment Entry of Conviction (Sexual Imposition)” as one of the documents provided to appellant in discovery. However, the actual judgment entry was not attached to the discovery response filed by the state. As a result, the May 15, 2017 judgment entry is not part of the record on appeal. See
{¶ 9} The state filed a motion to strike from appellant‘s brief the “‘interlineation’ of a purported entry of a court” and requested that this court disregard those portions of appellant‘s brief which rely on the entry. The state argued that because the May 15, 2017 sentencing entry was not a part of the record in the case, this court could not consider it for the first time on appeal. In response to the state‘s argument, appellant filed a motion to have this court take judicial notice of the 2017 sexual imposition entry under
{¶ 10} As an initial matter, we note that “[a] reviewing court cannot add matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of new matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. “A court, however, may take judicial notice of adjudicative facts pursuant to
{¶ 11} “A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.”
{¶ 12} Pursuant to
{¶ 13} The May 15, 2017 Judgment Entry of Conviction and its contents are not subject to reasonable dispute under
{¶ 14} Appellant‘s “Motion to Take Judicial Notice of the 2017 Sexual Imposition Entry Under
The May 15, 2017 Judgment Entry of Conviction
{¶ 15} The May 15, 2017 Judgment Entry of Conviction from Hamilton Municipal Court Case No. 15CRB03320-A sentenced appellant to a 60-day jail term and two years of community control following his conviction for sexual imposition. The judgment entry specified appellant was “to comply with sexual predator requirements.” Nowhere in the entry is appellant designated a “tier I sex offender.”
{¶ 16} The statutory scheme for the classification and registration of sex offenders
{¶ 17} Before the enactment of the Adam Walsh Act, sexual offenders were classified and registered pursuant to Megan‘s Law. See 1996 Am.Sub.H.B. 180, 146 Ohio Laws, Part II, 2560; 2003 Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558. Under Megan‘s Law, the trial court was required to hold classification hearings and determine whether a defendant should have been classified a sexually oriented offender, a habitual sex offender, or a sexual predator. Bodyke, 2010-Ohio-2424, ¶ 21; State v. Cook, 83 Ohio St.3d 404, 407 (1998). “Megan‘s Law * * * included registration and address verification provisions, as well as community notification provisions.” State v. Hartley, 10th Dist. Franklin No. 15AP-192, 2016-Ohio-2854, ¶ 9, citing Cook at ¶ 408-409. Megan‘s Law, unlike the Adam Walsh Act, was a “remedial consequence of a sex offense conviction and not a punitive component of a criminal sentence.” State v. Jones, 12th Dist. Butler No. CA2020-07-080, 2021-Ohio-2149, ¶ 4, citing State ex rel. Grant v. Collins, 155 Ohio St.3d 242, 2018-Ohio-4281, ¶ 7, 17.
{¶ 19} With this understanding of appellant‘s May 15, 2017 Judgment Entry of Conviction in mind, we turn to his assignments of error.
Ineffective Assistance of Counsel Claim
{¶ 20} Assignment of Error No. 1:
{¶ 21} LEONICIO‘S CONVICTION WAS UNCONSTITUTIONAL BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE AT THE PLEA PROCEEDING.
{¶ 22} In his first assignment of error, appellant argues he received ineffective assistance of counsel as it related to his decision to enter a guilty plea to the 2022 amended charge of attempted failure to verify a current residence.
{¶ 23} “A criminal defendant has the right, under both the United States and Ohio Constitutions, to the effective assistance of counsel.” State v. Sales, 12th Dist. Butler No. CA2022-05-056, 2022-Ohio-4326, ¶ 37. “A plea of guilty waives the right to claim that one was prejudiced by ineffective assistance of counsel, except to the extent that such ineffective assistance made the plea less than knowing, intelligent, and voluntary.” State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶ 33.
{¶ 24} “To prevail on an ineffective assistance of counsel claim in the context of a guilty plea, the defendant must show that (1) his counsel‘s performance was deficient and (2) there is a reasonable probability that, but for counsel‘s errors, the defendant would not have pled guilty.” State v. Arledge, 12th Dist. Clinton No. CA2018-12-024, 2019-Ohio-3147, ¶ 8, citing State v. Bird, 81 Ohio St.3d 582, 585 (1998). Deficient performance is defined as performance that fell below an objective standard of reasonableness. State v. Jackson,
{¶ 25} Appellant contends that his trial counsel was deficient for “failing to know the facts and basic law” regarding the imposition of tier I sex offender classification, registration, and verification. Appellant argues his trial counsel should have realized the May 15, 2017 Judgment Entry of Conviction from his Hamilton Municipal Court case failed to impose a sex-offender sanction under the Adam Walsh Act. Because no proper sex-offender classification was imposed on him in 2017 and because he already completed his sentence in the 2017 case and is therefore not subject to resentencing for classification under the Adam Walsh Act, appellant contends he had a valid defense to the 2022 charge of failing to verify his current residence. He argues he was prejudiced by counsel‘s failure to disclose this defense. Appellant maintains that “[b]ecause [he] resisted his minimal verification duties, he would have embraced a trial to defeat a conviction, a prison term, and eliminate his verification duties moving forward.”
{¶ 26} “For counsel to render effective assistance to a criminal defendant, [counsel] should, at the least, understand the basis of the criminal charges and possible defenses of those charges.” State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, ¶ 29 (10th Dist.). See also State v. Batdorf, 2d Dist. Greene Nos. 2020-CA-1 and 2020-CA-2, 2020-Ohio-4395, ¶ 9. “‘If an attorney does not grasp the basics of the charges and the potential defenses to them, an accused may well be stripped of the very means that are essential to subject the prosecution‘s case to adversarial testing.‘” Dalton at ¶ 29, quoting Scarpa v. Dubois, 38 F.3d 1, 10 (1st Cir.1994).
{¶ 28} “In a direct appeal, this court‘s review is limited to the evidence presented at trial, and we cannot consider matters outside the record before us.” State v. Brodbeck, 10th Dist. Franklin No. 08AP-134, 2008-Ohio-6961, ¶ 64. Where an appellant‘s claim of ineffective assistance of counsel is based upon facts not in the record, the appropriate remedy is a petition for postconviction relief; see Brodbeck at ¶ 64; State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983); or a motion to withdraw a guilty plea. See Dalton, 2003-Ohio-3813.
{¶ 29} Based on the limited record before us, we conclude that trial counsel‘s performance was not deficient and that appellant was not prejudiced by the alleged deficient performance. See State v. Gazaway, 12th Dist. Butler No. CA2018-12-236, 2019-Ohio- 5164, ¶ 51 (“Mere speculation and unsupported suggestions of what might have been established does not demonstrate counsel‘s deficient performance nor the prejudice required to support an ineffective assistance of counsel claim“). Appellant‘s first assignment of error is, therefore, overruled.
Claim Plea Was Not Knowingly, Intelligently, or Voluntarily Entered
{¶ 30} Assignment of Error No. 2:
{¶ 31} LEONICIO‘S CONVICTION WAS UNCONSTITUTIONAL UNDER DUE PROCESS BECAUSE HIS PLEA WAS NOT KNOWING, INTELLIGENT, OR VOLUNTARY.
{¶ 32} In his second assignment of error, appellant argues his plea was not knowingly, intelligently, or voluntarily entered because he was “made to believe” he was a tier I sex offender with registration duties as a result of his 2017 conviction for sexual imposition when such “belief was erroneous because the * * * [2017] entry failed to impose a Tier I sanction.”
{¶ 33} “When a defendant enters a guilty plea in a criminal case, the plea must be knowingly, intelligently, and voluntarily made.” State v. Hagan, 2019-Ohio-1047, ¶ 16. See also State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, ¶ 10. “Failure on any of those points ‘renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.‘” State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶ 21 (12th Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). “To ensure that a defendant‘s guilty plea is knowingly, intelligently and voluntarily made, the trial court must engage the defendant in a plea colloquy pursuant to
{¶ 34} “In general, ‘a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions
{¶ 35} Appellant has not specifically identified any problem in the trial court‘s
{¶ 36} Citing the Ohio Supreme Court‘s decision in State v. Engle, 74 Ohio St.3d 525 (1996), the Fourth District Court of Appeals decision in State v. Bryant, 4th Dist. Meigs No. 11CA19, 2012-Ohio-3189, and the Eleventh Circuit Court of Appeals decision in United States v. Brown, 117 F.3d 471 (11th Cir.1997), appellant argues that the “erroneous understanding of the applicable law” regarding his duty to register as a sex offender invalidated his plea. In both Engle and Bryant, the respective defendants were inaccurately advised of their rights by the prosecutor and the trial court during plea discussions and the
{¶ 37} In Bryant, the defendant pled guilty to two counts of trafficking in cocaine, one a felony of the second degree and the other a felony of the third degree. Bryant, 2012-Ohio-3189, ¶ 3. The defendant had been advised by his trial counsel and the state that the recommended sentence would be six years for the second-degree felony and four years for the third-degree felony, to be served consecutively. Id. However, at the plea hearing, “there was extensive discussion between [defense] counsel, the State and the trial court regarding the way in which [the defendant‘s] sentence would be structured.” Id. “[I]t was [ultimately] agreed by all that [the defendant] would be sentenced to a combined term of ten years, five of which would be mandatory, and that [the defendant] would be eligible to apply for judicial release after serving the five mandatory years.” Id. Therefore, the defendant entered the guilty plea with the understanding he would be eligible for judicial release after five years. Id.
{¶ 39} In Brown, the defendant entered a guilty plea to a charge of structuring currency transactions to avoid the reporting requirements of
{¶ 41} The present case differs from Engle, Bryant, and Brown in that the existing record does not contain any inaccurate advice by trial counsel, misstatements of rights by the trial court, or any misinformation about the nature of the charge appellant faced. At the plea hearing appellant was apprised that, pursuant to plea negotiations, he faced an amended charge of attempted failure to verify a current residence under
[Prosecutor]: Count I amended. [O]n or about October 7th of 2021 through January 20th of 2022 in Butler County, Ohio, Mr. Leonicio did attempt – or did, being a person who was required to verify a current residence, school, institution, or higher – institution of higher education or place of employment address as applicable – I don‘t even know how to word this – attempted to fail – attempted –
THE COURT: Engaged in conduct that successfully resulted in
[Prosecutor]: Yah, there we go – is applicable in accordance with those failed to give his address in accordance with those divisions by the date required.
For the verification, as set forth in division B of section 2950.06, the most serious sexually oriented offense or child-victim oriented offense was – that was the basis of the registration notice (indiscernible) reside change of address notification or address verification requirement that was violated under the prohibition is a penalty in a fifth degree or misdemeanor if committed by an adult or comparable category of offense committed under – in another jurisdiction which constitutes the offense of attempted failure to verify a current residence, school, institution of higher education, or place of employment address. A fifth degree felony of violation of [R.C.] 2950.06 and 2923.02.
THE COURT: Thank you, Mr. [Prosecutor]. [Defense Counsel], do you agree [that] those facts constitute the elements of the offense in which your client‘s pleading guilty?
[Defense Counsel]: Yes, Judge.
THE COURT: Mr. Leonicio, do you admit the prosecutor‘s statement of facts is a true and accurate statement right now?
[Defendant]: Yes, Your Honor.
Therefore, unlike in Brown, the trial court and prosecutor did not misstate the elements of the charged offense.
{¶ 42} Appellant contends he did not know he had a defense to the charged offense of failure to verify a current residence. As discussed in our resolution of appellant‘s first assignment of error, this court cannot speculate as to conversations appellant and trial counsel may have had regarding the deficiencies in the May 15, 2017 Judgment Entry or any defenses counsel could present to the charge of failure to verify a current residence. Such evidence is outside the record. See Johnson, 2012-Ohio-3542 at ¶ 31. To the extent appellant suggests that during the plea colloquy the trial court should have specifically advised him that he could defend against the charge of failing to verify a residence by
{¶ 43} Based on the record before us, we find that the trial court engaged in a full and appropriate plea colloquy pursuant to
{¶ 44} Accordingly, for the reasons set forth above, the state‘s December 19, 2022 “Motion to Strike” portions of appellant‘s brief is granted in part and denied in part, appellant‘s December 27, 2022 “Motion to Take Judicial Notice of the 2017 Sexual Imposition Entry Under
PIPER and BYRNE, JJ., concur.