[Cite as State v. Leonhart, 2014-Ohio-5601.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

STATE OF OHIO,                                    :    Case No. 13CA38

        Plaintiff-Appellee,                       :

        v.                                        :    DECISION AND
                                                       JUDGMENT ENTRY
STEVEN M. LEONHART,                               :

        Defendant-Appellant.                      :    RELEASED: 12/16/2014

                                               APPEARANCES:

Dennis L. Sipe, Buell & Sipe Co., L.P.A., Marietta, Ohio, for appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, for appellee.

Harsha, J.
        {¶1}     Steven M. Leonhart pleaded guilty to charges of aggravated murder with

accompanying firearm and forfeiture specifications, aggravated burglary, and felonious

assault. After determining that Leonhart had entered his plea voluntarily, the

Washington County Court of Common Pleas convicted him of these charges and

imposed consecutive sentences resulting in an aggregate prison term of life with parole

eligibility after he has served 52 years. The trial court also ordered that Leonhart be

assessed costs.

        {¶2}     Following this court’s dismissal of his initial appeal because of the lack of

a final appealable order, Leonhart filed motions to withdraw his guilty plea. The trial

court denied the motions and entered an amended sentencing entry, which reiterated

the prior sentence and ordered that Leonhart pay restitution of $3,352.51 to one of the

crime victims.
Washington App. No. 13CA38                                                                  2


       {¶3}   Leonhart claims in his first assignment of error that the trial court erred

when it overruled his motions to withdraw his guilty pleas. His motions, which were filed

after his sentence was pronounced but before the journalization of the amended

sentencing entry, constitute postsentence motions. Therefore, an evidentiary hearing

on his motions was not required because the record conclusively and irrefutably

contradicted his allegations. And notwithstanding Leonhart’s claims to the contrary, his

mental infirmities did not prevent him from entering a valid guilty plea. Again contrary to

his contention, the trial court informed him of his right to have the state prove the guilt of

all the charges beyond a reasonable doubt. Nor could he reasonably rely on his trial

counsel’s representation concerning his maximum potential sentence based on the trial

court’s detailed admonishments at his plea hearing about the role of the court in

sentencing. Because the trial court did not abuse its discretion in denying his motions

to withdraw, we reject his first assignment of error.

       {¶4}   In his second assignment of error Leonhart contends that the trial court

erred when it did not merge the offenses of aggravated burglary and felonious assault.

Because the offenses were not committed at the same time with the same animus and

involved different victims, the trial court did not err. Leonhart’s second assignment of

error is meritless.

       {¶5}   In his third and fourth assignments of error Leonhart claims that the trial

court erred in imposing consecutive sentences. However, because he failed to

establish by clear and convincing evidence either that the record does not support the

trial court’s findings or that the sentence is otherwise contrary to law, these assignments

of error are meritless.
Washington App. No. 13CA38                                                                 3


       {¶6}    In his fifth assignment of error Leonhart contends that the trial court

abused its discretion when it ordered him to pay court costs. We agree Leonhart filed a

timely motion to waive court costs based on indigency. However, the trial court failed to

address it even though it had determined that Leonhart was indigent both when the

case commenced and at the conclusion of sentencing. We sustain Leonhart’s fifth

assignment of error.

       {¶7}    In his sixth assignment of error Leonhart asserts that the trial court erred

by ordering him to pay restitution. The trial court erred by failing to establish the amount

of restitution in open court at the sentencing hearing. Rather, it imposed the sum in its

amended sentencing entry outside his physical presence. We sustain Leonhart’s sixth

assignment of error.

       {¶8}    In his seventh assignment of error Leonhart claims that his trial counsel’s

acts and omissions previously referred to depriving him of his right to the effective

assistance of counsel. Based upon our disposition of those assignments he fails to

establish that his trial counsel was ineffective. This assignment of error is meritless.

       {¶9}    Therefore, we affirm the trial court’s judgments denying his postsentence

motions to withdraw his guilty plea and the portion of his sentence imposing his

aggregate prison term; we reverse the portion of his sentence imposing costs and

restitution.

                                          I. FACTS

       {¶10} In January 2012, Leonhart drove his all-terrain vehicle to the home of

Willard Baker, where Leonhart’s ex-girlfriend, Holly Fickiesen, was staying. Leonhart,

who was armed with a loaded shotgun and intended to kill Fickiesen, waited for Baker
Washington App. No. 13CA38                                                               4


to leave for work. When Baker left, Leonhart forced his way through a door and

assaulted Fickiesen. Holding her at gunpoint, Leonhart told her that he was going to

shoot her, set the house on fire, and then shoot himself.

      {¶11} When Baker unexpectedly returned to the home and walked into the

kitchen, Leonhart shot him to death. Fickiesen fled the house and pounded on the door

of the next-door neighbor, Mike Lisk. When Lisk opened the door, Fickiesen ran inside

and hid. Leonhart then struggled with Lisk, knocking him down and breaking his hip.

After Leonhart fled, the police subsequently arrested him and obtained his confession to

breaking into Baker’s house and shooting him.

      {¶12} A Washington County grand jury charged Leonhart with aggravated

murder and other felonies, the trial court determined that Leonhart was indigent and

appointed him trial counsel. Leonhart entered a plea of not guilty to the charges and

also filed a motion to waive court costs because of his indigency. (OP13)

      {¶13} Leonhart then filed a written plea of not guilty by reason of insanity and

suggestion of incompetency. The trial court ordered evaluations to determine his

competency to stand trial and his mental condition at the time of the commission of the

charged offenses. Denise A. Kohler, Ph.D., a clinical and forensic psychologist,

diagnosed Leonhart with a severe mental illness consisting of major depression and

alcohol dependence. But Dr. Kohler concluded that Leonhart was capable of

understanding the nature and the objective of the proceedings against him and was

able to assist his attorney with his defense. Dr. Kohler further concluded that although

Leonhart suffered from a severe mental disease consisting of anxiety and depression at

the time the crimes occurred, he knew the wrongfulness of his actions.
Washington App. No. 13CA38                                                                 5


       {¶14} Following a hearing at which the parties stipulated to the report’s

conclusion of his competency to stand trial, the trial court determined Leonhart was

competent to stand trial because he was capable of understanding the nature and

objective of the proceedings against him and was capable of assisting in his defense.

       {¶15} Leonhart withdrew his former pleas of not guilty and pleaded guilty to the

charges of aggravated murder and the accompanying specifications, one of the two

counts of aggravated burglary, and felonious assault. The state dismissed the

remaining charges. The trial court conducted a colloquy to determine whether Leonhart

was fully informed of his rights and understood the consequence of his guilty plea. Upon

being satisfied that Leonhart knowingly, intelligently, and voluntarily entered his plea

and waived his constitutional rights, the court accepted his plea and convicted him of

the charges upon the facts stipulated by the parties.

       {¶16} After a hearing the trial court imposed a sentence of life with parole

eligibility after 30 years on the aggravated murder charge, 3 years for the accompanying

firearm specification, 11 years on the aggravated burglary charge, and 8 years on the

felonious assault charge. The court specified that these prison sentences would be

served consecutively so that the aggregate sentence would be life without parole

eligibility until he had served 52 years. The court also ordered the requested forfeiture,

ordered restitution in an undetermined amount, and ordered that costs be taxed against

him. At the conclusion of the hearing, the trial court noted that it understood that

Leonhart was indigent and was unable to hire counsel for appeal and that counsel

would be appointed for purposes of appeal. In November 2013, the trial court issued a
Washington App. No. 13CA38                                                                 6


journal entry reflecting its orally announced sentence, except that it did not specify any

restitution order or resolve Leonhart’s original kidnapping charge.

       {¶17} We dismissed Leonhart’s initial appeal for lack of a final, appealable order

because the sentencing entry failed to address both the restitution order made at the

sentencing hearing and the disposition of the kidnapping charge.

       {¶18} Then through new counsel Leonhart filed a motion to withdraw his guilty

plea, claiming that he had been advised by his trial counsel that he would be eligible for

parole after 30 to 35 years in prison. Leonhart contended any lengthier sentence would

be tantamount to life in prison without parole. In a reply to the state’s response,

Leonhart included the affidavit of his trial counsel stating that: (1) at a pretrial

conference the trial court stated that it would not impose either the maximum sentence

for aggravated murder of life without the possibility for parole nor the minimum sentence

for that charge, (2) based on the trial court’s statement, trial counsel advised Leonhart

that he would receive a maximum sentence of life with parole eligibility after 35 years,

(3) trial counsel advised Leonhart that any sentence greater than that would be the

equivalent of a life sentence without the possibility of parole, (4) after Leonhart entered

his guilty plea, trial counsel “was shocked” when the trial court imposed an aggregate

sentence of life without the possibility of parole after 52 years, and (5) if he had known

that the trial court would impose that sentence, trial counsel would have advised him to

proceed to trial rather than enter a guilty plea. Leonhart also filed a supplemental

affidavit in which his mother confirmed trial counsel’s recollection of his statement to

Leonhart that pleading guilty would result in a maximum sentence of life with the
Washington App. No. 13CA38                                                              7


possibility of parole after 35 years, which would give him a meaningful opportunity to be

released from prison.

       {¶19} The trial court overruled the motion because the record “definitively shows

that Defendant’s guilty pleas were entered knowingly, intelligently, and voluntarily at a

hearing where he was repeatedly advised of the potential maximum sentence.”

       {¶20} Leonhart then filed a pro se motion and supporting affidavit to withdraw his

guilty plea because the trial court purportedly accepted his plea without ensuring that he

understood his right to have the court require the state to prove his guilt beyond a

reasonable doubt, and that his plea was not voluntary because of his mental illness.

The trial court also denied this motion.

       {¶21} In September 2013, the trial court entered an amended sentencing entry

in which it included an order that Leonhart pay restitution of $3,352.51 to Lisk and

specified that the kidnapping charge had been dismissed. The remainder of the entry

was the same as the prior sentencing entry.

       {¶22} This appeal ensued.

                             II. ASSIGNMENTS OF ERROR

       {¶23} Leonhart assigns the following errors for our review:

       1. The Trial [Court] Erred When It Overruled Appellant’s Motions to
          Withdraw his Guilty Pleas.

       2. The Trial Court Erred When It Did Not Merge The Offenses of
          Aggravated Burglary and Felonious Assault.

       3. The Trial Court Erred When It Ordered that All Three Sentences Be
          Served Consecutively.

       4. The Trial Court Erred When It Imposed Consecutive Sentences as to
          Counts 5 and 6 and Ordered that All Sentences Be Served
          Consecutively.
Washington App. No. 13CA38                                                                  8



       5. The Trial Court Abused its Discretion When It Ordered Appellant To
          Pay Court Costs And Entered A Judgment.

       6. The Trial Court Erred When It Ordered Appellant to Make Restitution.

       7. The Acts and Omissions Of Trial Counsel Deprived Appellant Of His
          Right To Effective Assistance Of Counsel.

                                III. LAW AND ANALYSIS

                           A. Motions to Withdraw Guilty Plea

            1. Presentence and Postsentence Motions - Standard of Review

       {¶24} In his first assignment of error Leonhart asserts that the trial court erred

when it overruled the motions to withdraw his guilty plea. Crim.R. 32.1 provides that “[a]

motion to withdraw a plea of guilty or no contest may be made only before sentence is

imposed; but to correct manifest injustice the court after sentence may set aside the

judgment of conviction and permit the defendant to withdraw his or her plea.”

       {¶25} There is a significant difference in the appropriate standard of review for

presentence and postsentence motions. “[T]he presentence motion is entitled to much

more liberal treatment than the post-sentence version.” State v. Pasturzak, 4th Dist.

Scioto No. 08CA3252, 2009-Ohio-4222, ¶ 18, citing State v. Xie, 62 Ohio St.3d 521,

526, 584 N.E.2d 715. Leonhart claims that the trial court should have treated his

motions to withdraw his guilty plea as presentence motions because they were filed

before the trial court issued a sentencing entry that constituted a final appealable order,

i.e., prior to its issuance of the amended sentencing entry that included a restitution

order and dismissed the kidnapping charge. The state counters that the motions were

postsentence motions because they were filed after the trial court pronounced his prison

sentence in open court. “The distinction is significant because, while a presentence
Washington App. No. 13CA38                                                                  9


motion to withdraw a guilty plea should be freely and liberally granted, a postsentence

motion to withdraw a guilty plea requires a showing of manifest injustice.” State v. Hill,

10th Dist. Franklin No. 12AP-463, 2013-Ohio-674, ¶ 12, citing Xie.

       {¶26} As a general rule courts of appeals have held that motions to withdraw a

guilty or no contest plea made after the court’s pronouncement of sentence but before

the court’s filing of the sentencing entry are treated as postsentence motions. See

State v. Bryant, 2013-Ohio-5105, 1 N.E.3d 878, ¶ 26-28 (10th Dist.), quoting State v.

Hall, 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939, ¶ 10 (“ ‘[r]egardless of whether

the judgment entry had been filed, sentence had been imposed and appellant was

aware that he was going to prison’ ”); State v. McComb, 2d Dist. Montgomery Nos.

22570 and 22571, 2008-Ohio-295, ¶ 7 (“a motion made after learning of the imminent

sentence is considered to be filed after sentencing”); State v. Surface, 5th Dist. Stark

No. 2008 CA00184, 2009-Ohio-950, ¶ 12 (“because appellant’s request came after

pronouncement of sentence [but before its journalization], we find that the appropriate

standard is withdrawal only to correct a manifest injustice”); State v. Matthews, 6th Dist.

Wood No. WD-10-025, 2011-Ohio-1265, ¶ 26 (“Where a Crim.R. 32.1 motion is made

after the trial court pronounced sentence at the sentencing hearing but before a

sentencing judgment is filed, the motion is to be treated as a postsentence motion under

the rule”); State v. Gordon, 9th Dist. Summit No. 25317, 2011-Ohio-1045, ¶ 9; State v.

Neely, 12th Dist. Clinton No. CA2008-08-034, 2009-Ohio-2337, ¶ 6 (“Appellant’s

request to withdraw his plea came after pronouncement of sentence, that is, after a

sentencing hearing was held and appellant learned what the sentence would be, and,

therefore, the appropriate standard is withdrawal only to correct a manifest injustice”).
Washington App. No. 13CA38                                                                10


       {¶27} This precedent is consistent with the objective of the stricter manifest-

injustice standard for postsentence motions to withdraw guilty or no contest pleas. See

State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985) (“The logic behind the

[stricter postsentence standard] is to discourage a defendant from pleading guilty to test

the weight of potential reprisal, and later withdraw the plea if the sentence was

unexpectedly severe”); Bryant at ¶ 27, quoting Hall at ¶ 10 (“ ‘[t]he purpose of the

motion to withdraw a guilty plea after sentence has been imposed is to correct a

manifest injustice, not to allow the defendant to test the weight of potential punishment

and, if dissatisfied, withdraw his guilty plea’ ”).

       {¶28} Although it is true that courts generally speak only through their journal

entries, see State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12,

the terms “imposition of sentence” and “sentence is imposed” in the pertinent Rules of

Criminal Procedure have a different meaning than journalization of the sentence. In

Matthews at ¶ 27, the Sixth District Court of Appeals reasoned that for determining

when a motion to withdraw a guilty or no contest plea is made under Crim.R. 32.1, the

sentence is imposed when it is pronounced:

       Treating imposition of sentence for purposes of Crim.R. 32.1 as occurring
       upon pronouncement of sentence at the sentencing hearing is consistent
       with use of the term “imposition of sentence” under Crim.R. 32 and 43.
       Under Crim.R. 32.1, presentence motions are those made before
       imposition of sentence. Under Crim.R. 43(A)(1), imposition of sentence is
       identified as a stage of the proceedings where a defendant must be
       physically present. Crim.R. 32(A) sets forth procedures for imposition of
       sentence, including opportunities for defense counsel, the defendant, and
       prosecuting attorney to speak and affording victims an opportunity to
       exercise their rights as provided by law at sentencing.

       {¶29} Notwithstanding this precedent, Leonhart primarily relies on State v.

Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, and similar appellate
Washington App. No. 13CA38                                                                   11


cases to support his claim that his motions to withdraw should be considered under the

more lenient presentence motion standard. In Boswell at the syllabus, the Ohio

Supreme Court held that “[a] motion to withdraw a plea of guilty or no contest made by a

defendant who has been given a void sentence must be considered as a presentence

motion under Crim.R. 32.1.” Boswell was premised on the Supreme Court’s view at the

time that a sentence is void in its entirety when the trial court fails to properly impose

postrelease control.

       {¶30} Subsequently, in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

942 N.E.2d 332, the Ohio Supreme Court held that when a trial court fails to properly

impose postrelease control, only that portion of the sentence is void, and resentencing

is limited to that issue. After Fischer, courts have questioned the continued validity of

Boswell, see State v. Triplett, 4th Dist. Lawrence No. 11CA24, 2012-Ohio-4529, ¶ 10,

and generally held that “a plea withdrawal motion filed in a case where the post-release

portion of the sentence is void is to be considered a post-sentence motion.” See

generally State v. Easterling, 7th Dist. Mahoning No. 12 MA 208, 2013-Ohio-2961, ¶ 19,

and cases cited therein; see also State v. Hazel, 10th Dist. Franklin Nos. 10AP-1013

and 10AP-1014, 2011-Ohio-4427, ¶ 17. Therefore, we find that the cases cited by

Leonhart are not persuasive.

       {¶31} More pertinently, in a similar case the Second District Court of Appeals

recently held that when an original sentence is not a final appealable order because of

an error in imposing restitution, the sentence is not void in its entirety. Thus a motion to

withdraw a guilty plea made after the sentencing hearing but before the journalization of

a final appealable order is treated as a postsentence motion under Crim.R. 32.1. State
Washington App. No. 13CA38                                                                 12

v. Perkins, 2d Dist. Montgomery No. 25808, 2014-Ohio-1863. The Perkins court

rejected the appellant’s similar claim based on the Supreme Court’s holding in Fischer:

        Perkins contends that because there was no final appealable order, there
        was no sentence, and his motion to withdraw should be treated as a pre-
        sentence motion. We disagree. To the extent the sentence was “void”
        because of the restitution error, the proper remedy would be to re-
        sentence Perkins on the restitution issue. The remainder of the sentence
        would still be valid, and any “voidness” in the sentence would not affect
        the fact that the trial court imposed sentence long before Perkins filed the
        motion to withdraw his plea. As a result, there would be no basis for
        treating the motion to withdraw as a “pre-sentence” motion.

Id. at ¶ 50.

        {¶32} Significantly, neither of Leonhart’s motions to withdraw his guilty plea were

premised upon either of the defects that rendered his original sentence interlocutory—

the restitution order or the dismissal of the kidnapping charge. Based on the persuasive

weight of precedent we hold that Leonhart’s motions, which were filed after his sentence

was pronounced but prior to the journalization of an amended sentencing entry that

constituted a final appealable order, were postsentence motions for purposes of Crim.R.

32.1.

        {¶33} “A defendant who seeks to withdraw a plea of guilty after the imposition of

sentence has the burden of establishing the existence of manifest injustice.” State v.

Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus;

State v. Ogle, 4th Dist. Hocking No. 13CA18, 2014-Ohio-2251, ¶ 8. A manifest injustice

is a clear and openly unjust act; it relates to a fundamental flaw in the proceedings

resulting in a miscarriage of justice or a deprivation of due process. See State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998); Ogle at 8; Hall,

10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939, at ¶ 12. “This is an ‘extremely high
Washington App. No. 13CA38                                                                  13


standard’ that permits a defendant to withdraw his plea ‘only in extraordinary cases.’ ”

State v. Walton, 4th Dist. Wash. No. 13CA9, 2014-Ohio-618, ¶ 10, quoting State v.

Darget, 4th Dist. Scioto No. 12CA3487, 2013-Ohio-603, ¶ 21.

       {¶34} The decision to grant or deny a Crim.R. 32.1 postsentence motion to

withdraw a guilty plea is committed to the sound discretion of the trial court; appellate

review of the denial of the motion is thus limited to a determination of whether the trial

court abused its discretion. Walton at ¶ 11; see also Smith at paragraph two of the

syllabus (“A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion

of the trial court, and the good faith, credibility and weight of the movant’s assertions in

support of the motion are matters to be resolved by that court”). “A trial court abuses its

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

       {¶35} With this deferential standard of review governing our analysis, we turn to

the merits of Leonhart’s arguments.

                                  2. Validity of Guilty Plea

       {¶36} Leonhart argues that the trial court erred in denying his motions to

withdraw his guilty plea because his plea was not knowingly, intelligently, and voluntarily

made. “ ‘When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450

(1996). “An appellate court determining whether a guilty plea was entered knowingly,
Washington App. No. 13CA38                                                                  14


intelligently, and voluntarily conducts a de novo review of the record to ensure that the

trial court complied with the constitutional and procedural safeguards.” State v. Moore,

4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 13.

       {¶37} “Crim.R. 11(C) governs the process that a trial court must use before

accepting a felony plea of guilty or no contest.” Veney at ¶ 8. Before accepting a guilty

plea in a felony case a trial court must address the defendant personally and determine

that “the defendant is making the plea voluntarily, with understanding of the nature of

the charges and of the maximum penalty involved, and, if applicable, that the defendant

is not eligible for probation or for the imposition of community control sanctions at the

sentencing hearing.” Crim.R. 11(C)(2)(a). The court must also inform the defendant of

both the constitutional and nonconstitutional rights he is waiving and determine that he

“understands the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.” Crim.R.

11(C)(2)(b). Finally, the court must determine that the defendant understands that he

“is waiving the rights to jury trial, to confront witnesses against him or her, to have

compulsory process for obtaining witnesses in the defendant’s favor, and to require the

state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.” Crim.R.

11(C)(2)(c).

       {¶38} Leonhart contends that his guilty plea was not valid because: (1) he

suffered from mental illnesses that precluded him from understanding the nature of the

charges, the rights he was waiving by pleading guilty, and the effect of his plea; (2) the

trial court failed to advise him that the state bore the burden of proof beyond a
Washington App. No. 13CA38                                                                  15


reasonable doubt as to all the offenses and specifications to which he pleaded guilty;

and (3) his plea was based on his trial counsel’s misinformation concerning the

aggregate maximum sentence the trial court could impose.

       {¶39} For his first contention Leonhart contends that his mental illnesses

prevented him from entering a knowing, intelligent, and voluntary plea to the charges.

He is correct that the psychologist who conducted his competency examination

diagnosed him as having a history of depression and alcohol abuse and that he suffered

from anxiety and depression related to his incarceration and charges. Nevertheless, the

psychologist observed that Leonhart had no memory deficit or other cognitive

dysfunction, the effect of the mental illness and stressors on his everyday functioning

was moderate, but he was coping reasonably well without medication, he knew his

charges and the severity of each, he was aware that he was accused of murdering

Baker, he had no concerns about his attorney, he understood the proceedings, he knew

that the judge would be responsible for sentencing, he was able to make decisions in

his own best interest, and that he was able to understand plea bargains, as long as they

were reasonable. The psychologist concluded that notwithstanding his mental illness,

Leonhart was competent to stand trial because he was capable of understanding the

nature and objective of the proceedings against him and was able to assist his attorney

with his defense. The parties stipulated to the psychologist’s report and the trial court

determined that Leonhart was competent to stand trial based on the report.

       {¶40} At the plea hearing a few months after the competency evaluation and

determination, the trial court engaged Leonhart in a detailed colloquy in which Leonhart

specified that he understood the nature of the charges, the elements, and the potential
Washington App. No. 13CA38                                                               16


penalties, that he did not have any physical or mental-health problems at that time, and

that he was not under the influence of alcohol or on any prescribed medications.

      {¶41} Despite his claims, “[c]ompetency is presumed and the defense bears the

burden of proving incompetency.” State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-

4580, 998 N.E.2d 1100, ¶ 89; State v. Rittner, 6th Dist. Fulton No. F-05-003, 2005-Ohio-

6526, ¶ 38 (applying this standard in the context of an appeal from the denial of a

motion to withdraw a guilty plea). “ ‘A defendant may be emotionally disturbed or even

psychotic and still be capable of understanding the charges against him and of assisting

his counsel.’ ” State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶

29, quoting State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). Therefore,

a defendant suffering from a mental illness may still be competent to enter a knowing,

intelligent, and voluntary guilty plea. See State v. Humphrey, 6th Dist. Williams No.

WM-05-012, 2006-Ohio-1630, ¶ 34 (“even though appellant notes that the trial court and

appellant’s counsel recognized his mental state at the time of the plea hearing and at

the sentencing hearing, the trial court’s decision to deny appellant’s motion [to withdraw

his guilty plea] was not an abuse of discretion”); State v. Walker, 8th Dist. Cuyahoga

No. 65794, 1994 WL 530892, *2 (Sept. 29, 1994) (“A defendant may be mentally

unstable and still be capable of understanding the charges against him and entering a

plea in a knowing, intelligent, and voluntary manner”); State v. Swift, 86 Ohio App.3d

407, 411-412, 621 N.E.2d 513 (11th Dist.1993) (defendant suffering from depression

was mentally competent to enter guilty plea).

      {¶42} The record here is replete with evidence that supports the trial court’s

determination that Leonhart’s mental infirmities did not prevent him from entering a valid
Washington App. No. 13CA38                                                                17


guilty plea. The cases Leonhart cited are inapposite: this is not a case where additional

inquiry by the trial court was required as the competency evaluation and determination

were made just a few months before the plea hearing; nor was there any indication that

Leonhart was under the influence of alcohol or drugs when he entered his guilty plea.

Compare State v. Schreiber, 12th Dist. Butler No. CA2006-09-237, 2007-Ohio-6030, ¶

19 (guilty plea was not knowing, intelligent, and voluntary due to a myriad of

circumstances, including that the issue of the appellant’s competency to understand the

proceedings and charges against him was never resolved by a competency evaluation);

State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 66 (“Additional

inquiry is necessary into a defendant’s mental state once a defendant seeking to enter a

guilty plea has stated that he is under the influence of drugs or medication”). Therefore,

Leonhart’s first contention is meritless.

       {¶43} Leonhart next contends that his guilty plea was not valid because the trial

court failed to advise him that the state bore the burden of proof beyond a reasonable

doubt for all of the charges and specifications. “[T]he duty to advise the defendant of

the right to have guilt proven by the state beyond a reasonable doubt is among the

duties of Crim.R. 11(C)(2)(c) with which the court must strictly comply,” and absent strict

compliance, a plea of guilty is invalid. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621, ¶ 21.

       {¶44} Leonhart argues that at the plea hearing the trial court advised him of the

state’s burden to prove his guilt beyond a reasonable doubt only for the charge of

aggravated murder and not for the accompanying specifications or the remaining
Washington App. No. 13CA38                                                                  18


charges of aggravated burglary and felonious assault. A review of the plea hearing

dispels this claim because in the introduction of its colloquy the trial court stated:

       THE COURT: Before you enter a plea of guilty, we’re going to engage in
       a dialogue.

              The offense of aggravated murder is an unscheduled felony. The
       offense of aggravated burglary is a first degree felony. The offense of
       felonious assault is a felony of the second degree.

            The elements of these charges and what the State must prove
       beyond a reasonable doubt are first venue * * *.

       {¶45} The trial court’s specification of the state’s burden of proof applied to all of

the charges, including the specifications accompanying the aggravated murder charge

and the aggravated burglary and felonious assault charges, and not simply the

aggravated murder charge. “[A]lthough the state has the burden to prove all the

elements of the crime beyond a reasonable doubt, it does not have to reiterate its

burden of proof prior to its recitation of each count.” State v. Thomas, 11th Dist.

Trumbull No. 2003-T-0097, 2004-Ohio-6947, ¶ 18. “ ‘[T]he trial court’s failure to

reiterate the state’s burden of proof prior to its recitation of each count will not, standing

alone, act to invalidate a defendant’s guilty plea. Instead, a reviewing court must

determine whether the record demonstrates that the trial court ‘meaningfully informed’

the defendant as to the rights of trial in a manner which allowed the trial court to

determine that the defendant understands the waiver of such rights.’ ” Id. at ¶ 18,

quoting State v. Porterfield, 11th Dist. Trumbull No. 2002-T-0045, 2004-Ohio-520, ¶ 54,

overruled on other grounds, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690. The

record establishes that the trial court strictly complied with Crim.R. 11(C)(2)(c) by
Washington App. No. 13CA38                                                                     19


informing Leonhart that he had the right to have the state prove his guilt of all the

charges beyond a reasonable doubt. Therefore, we reject his second contention.

       {¶46} Leonhart’s third contention claims that his plea was based on his trial

counsel’s misinformation that his aggregate prison sentence would be no greater than

life with parole eligibility after 35 years. “Although difficult to precisely define, suffice it

to say that an overwhelming authority of case law states that manifest injustice, as

contemplated by [Crim.R. 32.1], does not, ipso facto result from counsel’s erroneous

advice concerning the sentence that will be imposed.” State v. Blatnik, 17 Ohio App.3d

201, 203, 478 N.E.2d 1016 (6th Dist.1984); State v. Simmons, 8th Dist. Cuyahoga No.

94982, 2010-Ohio-6188, ¶ 14; State v. Mootispaw, 4th Dist. Lawrence No. 97CA26,

1998 WL 191934, *3. Nevertheless, in certain circumstances erroneous advice of

counsel regarding the sentence to be imposed may result in manifest injustice

warranting withdrawal of a guilty plea. Blatnik at 203.

       {¶47} In State v. Langenkamp, 3d Dist. Shelby Nos. 17-08-03 and 17-08-04,

2008-Ohio-5308, at ¶ 25 and 27 (emphasis sic), the Third District Court of Appeals set

forth the distinguishing factor, as well as the applicable test, to determine whether a

defendant has established a manifest injustice sufficient to warrant a postsentence

withdraw of a guilty plea:

       Whether a manifest injustice exists for purposes of a post-sentence
       withdrawal of guilty or no contest plea by virtue of counsel's sentencing
       advice depends upon the nature of that advice. The case law indicates a
       clear demarcation between counsel's sentencing advice that is a “good
       faith estimate” or “speculative,” and counsel's erroneous representation of
       a promised sentence. The former type of advice which a defendant relies
       upon does not create a manifest injustice necessary for a post-sentence
       withdrawal of guilty or no contest plea. *** (citations omitted). The latter
       type of advice which a defendant relies upon may create a manifest
Washington App. No. 13CA38                                                                20


      injustice, and thus, may require a post-sentence withdrawal of plea.
      (citations omitted) * * *

      After a review of the applicable case law, this Court holds that in order for
      a defendant to establish a manifest injustice sufficient for a post-sentence
      withdrawal of a guilty or no contest plea, a defendant must establish that:
      (1) defense counsel mistakenly represented what has been promised by
      way of a sentence; (2) the erroneous representation played a substantial
      part in his/her decision to plead guilty or no contest; and (3) he/she was
      reasonably justified in relying upon counsel's erroneous representation.

      {¶48} Based on the affidavits of Leonhart’s trial counsel and Leonhart’s mother,

Leonhart arguably established both that his counsel mistakenly represented that he

would receive a maximum sentence of life with parole eligibility after 35 years, and his

counsel’s erroneous representation played a substantial part in his decision to plead

guilty. Nevertheless, Leonhart did not establish that he reasonably relied on the

erroneous representation concerning his maximum sentence. Instead, the record of the

plea hearing plainly refutes any claim of reasonable reliance on the mistaken

representation. The trial court informed him that the maximum aggregate sentence the

court could impose was life imprisonment with the possibility of parole after 52 years.

Leonhart stated that he understood that was the maximum sentence, that no promises

by anyone to him were binding on the court, that the court could impose the maximum

sentence, and that no one promised him that he would receive a lesser aggregate

sentence than that specified as the maximum by the court:

      THE COURT: Now, before you plead guilty, I need to be certain that you
      understand these proceedings. You do understand the nature of the
      charges against you?

      THE DEFENDANT: Yes.

      THE COURT: You understand the maximum penalty the Court could
      impose, is life imprisonment with a possibility of parole after 52 years and
      a fine of $35,000?
Washington App. No. 13CA38                                                               21



      THE DEFENDANT: Yes, ma’am.

      ***
      THE COURT: You understand that if any promise has been made to you
      by anyone, that those promises are not binding on the Court, and if you
      plead guilty, the Court alone -- that is, the Judge -- will decide your
      sentence and you could receive the maximum penalty prescribed by law?

      THE DEFENDANT: Yea -- yes.

      THE COURT: Other than the agreement that’s been stated in open court,
      was there any other promise made to you by any person to get you to
      plead guilty today?

      THE DEFENDANT: Just, other than the -- low end would be taken off and
      the high end would be taken off.

      THE COURT: All right. But other than that, there’s no other promise?

      THE DEFENDANT: No.

      {¶49} The record is thus clear that Leonhart knew what his potential maximum

sentence was, that the court was not bound by any promise made by his counsel

regarding the aggregate length of the sentence, and Leonhart advised the court that no

such promises were made to him. Under these circumstances, Leonhart could not

establish any manifest injustice warranting the withdrawal of his guilty plea based on

erroneous advice by his trial counsel concerning the length of his sentence. See

Langenkamp, 3d Dist. Shelby Nos. 17-08-03 and 17-08-04, 2008-Ohio-5308, ¶ 28;

State v. Jackson, 5th Dist. Delaware Nos. 04CA-A-11-078 and 04CA-A-11-079, 2005-

Ohio-5173, ¶ 25 (based on trial court’s statements during the Crim.R. 11 colloquy at the

plea hearing, “regardless of what appellant may have been told by his attorney,

appellant was aware of the potential sentences he faced”); State v. Parker, 4th Dist.

Wash. No. 96CA35, 1998 WL 2407, *3 (Jan. 6, 1998) (“Even if appellant’s attorney did
Washington App. No. 13CA38                                                               22


indicate that appellant would not receive the maximum sentence possible, appellant

could not have reasonably relied upon his attorney’s advice over the judge’s

statement”); State v. Herrera, 3d Dist. No. 1-01-126, 2001 WL 1635131, *4 (Dec. 20,

2001) (“the extensive explanations and admonishments completely contradict his

assertion that his guilty plea was based on a misunderstanding of the potential

sentences”). Because Leonhart could not reasonably rely on his trial counsel’s

representation concerning his sentence, we reject his third contention.

       {¶50} In his final contention Leonhart asserts that the court erred by not

conducting an evidentiary hearing on his motions to withdraw his guilty plea. His

argument is premised on his prior erroneous contention that his motions were

presentence motions, which require a hearing by the trial court before ruling on them.

Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715 (for presentence motions to withdraw a guilty

or no contest plea, “the trial court must conduct a hearing to determine whether there is

a reasonable and legitimate basis for the withdrawal of the plea”); State v. Burchett, 4th

Dist. Scioto No. 11CA3445, 2013-Ohio-1815, ¶ 13 (“a hearing on a [presentence]

motion to withdraw a guilty plea must be conducted”). Because his motions constituted

postsentence motions, these authorities do not support his contention.

       {¶51} Instead, an evidentiary hearing is not required for deciding postsentence

motions to withdraw a guilty plea where the record conclusively and irrefutably

contradicts the allegations in the post-sentence motion to withdraw. See Pasturzak, 4th

Dist. Scioto No. 08CA3252, 2009-Ohio-4222, ¶ 18; State v. Iafornaro, 9th Dist. Lorain

No. 01CA007967, 2002-Ohio-5550, ¶ 12. For the reasons previously specified, all of

Leonhart’s contentions in his motions to withdraw his guilty plea were conclusively and
Washington App. No. 13CA38                                                               23


irrefutably contradicted by the record of the proceedings before the court, including the

competency and plea hearings. Therefore, the trial court properly exercised its broad

discretion in determining that Leonhart did not satisfy his burden of establishing the

extremely high standard of manifest injustice that would have warranted a withdrawal of

his guilty plea. There was no clear and openly unjust act or a fundamental flaw in the

proceedings resulting in a miscarriage of justice or a deprivation of due process. We

overrule his first assignment of error.

                            B. Allied Offenses of Similar Import

       {¶52} In his second assignment of error Leonhart asserts that the trial court

erred when it did not merge the offenses of aggravated burglary and felonious assault.

                                    1. Standard of Review

       {¶53} Appellate courts apply a de novo standard of review in an appeal

challenging a trial court’s determination of whether offenses constitute allied offenses of

similar import that must be merged under R.C. 2941.25. State v. Williams, 134 Ohio

St.3d 482, 2912-Ohio-5699, 983 N.E.2d 1245, ¶ 28; State v. Cole, 4th Dist. Athens No.

12CA49, 2014-Ohio-2967, ¶ 7. However, because Leonhart did not raise this issue

below, we can only review it under the plain error standard of Crim.R. 52(B). State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31; State v. Creech,

188 Ohio App.3d 513, 523, 2010-Ohio-2553, 936 N.E.2d 79 (4th Dist.). To prevail,

Leonhart must show that an error occurred, that the error was plain, and that but for the

error, the outcome of the trial clearly would have been otherwise. State v. Mammone,

139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69.

                                      2. Merger Analysis
Washington App. No. 13CA38                                                                24


       {¶54} Under the applicable test for merger, R.C. 2941.25(A) requires the

sentencing court to first determine whether it is possible to commit one offense and

commit the other with the same conduct. State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061, ¶ 48. If the defendant’s conduct constituting commission

of one offense can constitute commission of the other, then the offenses are of similar

import, and the court must then decide whether the offenses were committed with a

single state of mind, i.e., a single animus. Id. at ¶ 48-49. If so, the offenses are allied

offenses of similar import that must be merged, and the defendant can only be punished

for one. Id. at ¶ 50.

       {¶55} Leonhart contends that the aggravated burglary and felonious assault

offenses should have been merged because they were both committed against Mike

Lisk. But as the state argues, it is evident that Lisk was the victim of only the felonious

assault charge. The indictment specified that Lisk was the victim in the felonious

assault charge, but did not specify a victim for either of the aggravated burglary

charges. And at the plea hearing the state indicated that that Lisk was the victim in the

felonious assault charge, but did not indicate that he was the victim in the other

charges. Instead, the stipulated facts at the plea hearing establish that the aggravated

burglary charge related to Leonhart’s trespass in Baker’s home, and not any trespass in

Lisk’s home. R.C. 2911.11(A)(2). The facts did not establish that Leonhart trespassed

in Lisk’s home—the confrontation between them instead occurred at the front door of

the residence. The aggravated burglary and felonious assault offenses were thus

sufficiently separate and distinct that they were not committed at the same time with the

same animus. See State v. Kay, 2d Dist. Montgomery No. 25761, 1014-Ohio-2676, ¶
Washington App. No. 13CA38                                                                  25


25 (aggravated burglary and aggravated robbery were not allied offenses of similar

import because they were not committed at the same time with the same animus).

Therefore, the trial court did not commit any error, much less plain error, in failing to

merge Leonhart’s convictions for aggravated burglary and felonious assault so that he

could be sentenced only on one of them. We overrule Leonhart’s second assignment of

error.

                              C. Consecutive Maximum Sentences

           {¶56} In his third assignment of error Leonhart asserts that the trial court erred

when it ordered that his sentences be served consecutively. In his fourth assignment of

error he contends that the trial court erred when it imposed the maximum sentences for

aggravated burglary and felonious assault and in ordering that the sentences be served

consecutively. Because these assignments raise related issues, we consider them

jointly.

                                      1. Standard of Review

           {¶57} When reviewing felony sentences we apply the standard of review set

forth in R.C. 2953.08(G)(2). See State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶

33, 4th Dist. (“we join the growing number of appellate districts that have abandoned the

Kalish plurality’s second-step abuse-of-discretion standard of review; when the General

Assembly reenacted R.C. 2953.08(G)(2), it expressly stated that ‘[t]he appellate court’s

standard of review is not whether the sentencing court abused its discretion’ ”). R.C.

2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate

and remand a challenged felony sentence if the court clearly and convincingly finds that
Washington App. No. 13CA38                                                                26


“the record does not support the sentencing court’s findings” under the specified

statutory provisions or “the sentence is otherwise contrary to law.”

                            2. R.C. 2929.14(C) Analysis

       {¶58} Leonhart first challenges the trial court’s imposition of consecutive

sentences for the charges to which he pleaded guilty. Under the tripartite procedure set

forth in R.C. 2929.14(C)(4), prior to imposing consecutive sentences the trial court had

to find that: (1) consecutive sentences are necessary to protect the public from future

crime or to punish the offender, (2) consecutive sentences are not disproportionate to

the seriousness of the offender’s conduct and to the danger the offender poses to the

public, and (3) as applicable here, the harm caused by two or more multiple offenses

was so great or unusual that no single prison term for any of the offenses committed

adequately reflects the seriousness of the offender’s conduct. See, State v. Baker, 4th

Dist. Athens No. 13CA18, 2014-Ohio-1967, ¶ 36. The trial court “is required to make

the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate

its findings into the sentencing entry, but it has no obligation to state reasons to support

its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659,

syllabus. The trial court here complied with R.C. 2929.14(C)(4) by making the requisite

findings at the sentencing hearing, and incorporating them in its original and amended

sentencing entries.

       {¶59} Nonetheless, Leonhart contends that the trial court’s findings did not

satisfy the statutory requirement that it find that the harm caused by two or more

multiple offenses was so great or unusual that no single prison term for any of the

offenses committed adequately reflects the seriousness of the offender’s conduct.
Washington App. No. 13CA38                                                                   27


Specifically, Leonhart points to the trial court’s findings at the sentencing hearing and in

its sentencing entries that the crimes were more serious than normal because he

caused serious physical harm to Baker, causing his death, and to Lisk. The record,

including the stipulated facts, support the trial court’s finding that the harm caused by

Leonhart’s multiple offenses—the shooting and killing of Baker, the terrorizing of

Fickeisen at gunpoint, and the physical assault on Lisk, resulting in his broken hip and

necessitating a hip-replacement surgery that same day—was so great or unusual that

no single prison term adequately reflected the seriousness of his conduct. In effect,

Leonhart set in motion a deadly series of events that left one person dead, and two

people traumatized and/or severely injured. To be sure, the trial court did not impose

the maximum sentence of life imprisonment without the possibility of parole on

Leonhart’s aggravated murder conviction. But after deciding not to impose that

sentence, it acted within its discretion by determining that consecutive sentences that

resulted in Leonhart’s aggregate sentence of life imprisonment with parole eligibility

after 52 years adequately reflected the seriousness of his multiple offenses. We

conclude that the record supports the trial court’s imposition of consecutive sentences.

       {¶60} Leonhart also claims that the trial court erred in failing to account for his

mental illness when it imposed consecutive sentences. However, the record indicates

that the court did consider it, but noted that “while Mr. Leonhart does suffer from a major

mental illness, he did know the wrongfulness of his actions and was therefore not, Not

Guilty by Reason of Insanity.” The trial court’s refusal to give more weight to this

evidence is supported by the psychological evaluations concluding that Leonhart was

not insane at the time of the offenses and that he was competent to stand trial.
Washington App. No. 13CA38                                                                  28


         {¶61} Leonhart next claims that the trial court’s imposition of a life sentence

upon a seriously mentally ill person violated the state and federal constitutional

provisions prohibiting cruel and unusual punishment. “Where none of the individual

sentences imposed on an offender are grossly disproportionate to their respective

offenses, an aggregate prison term resulting from consecutive imposition of those

sentences does not constitute cruel and unusual punishment.” State v. Hairston, 118

Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, syllabus. Because none of the

sentences for each of Leonhart’s individual crimes is grossly disproportionate to those

respective crimes, his aggregate prison sentence does not constitute cruel and unusual

punishment.

         {¶62} Leonhart finally claims that the trial court abused its discretion by imposing

the maximum sentences for aggravated burglary and felonious assault when the

sentencing factors in R.C. 2929.11, 2929.12, and 2929.13 are “mixed” concerning the

need to impose longer sentences. Because the applicable standard of review for felony

sentencing cases no longer includes a challenge based on an abuse of discretion,

Leonhart’s claim fails. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 40. Moreover, the

trial court retains significant latitude in determining what weight *** it assigns to the

statutory seriousness and recidivism factors and other relevant evidence.” See State v.

Hall, 10th Dist. Franklin No. 07AP-292, 2007-Ohio-5017, ¶ 25.

         {¶63} Therefore, Leonhart failed to establish by the requisite clear and

convincing evidence that the record does not support the trial court’s findings or that the

sentence is otherwise contrary to law. We overrule his third and fourth assignments of

error.
Washington App. No. 13CA38                                                                  29


                                         D. Costs

       {¶64} In his fifth assignment of error Leonhart contends that the trial court

abused its discretion when it ordered him to pay court costs and entered judgment

against him. In all criminal cases costs must be included in the sentencing entry. R.C.

2947.23(A). This statute requires trial courts to assess costs against all criminal

defendants, even indigent ones. State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-

4006, 871 N.E.2d 589, ¶ 3. Nevertheless, a trial court may waive the payment of court

costs if the defendant makes a motion to waive court costs at the time of sentencing.

Id. at paragraph two of the syllabus; State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-

905, 843 N.E.2d 164, paragraph two of the syllabus (“A motion by an indigent criminal

defendant for waiver of payment of court costs must be made at the time of

sentencing”). When a defendant makes a timely motion to waive costs, a court’s denial

of the indigent criminal defendant’s motion is reviewed under an abuse-of-discretion

standard. Id. at paragraph four of the syllabus.

       {¶65} The state claims that Leonhart waived this issue by failing to file a motion

seeking a waiver of costs at the time he was sentenced. But before the sentencing

hearing Leonhart did timely file a motion to waive court costs based on his indigency.

Because the motion was properly pending at that time, it was timely filed and should

have been considered by the trial court. See State v. Bishop, 12th Dist. Butler No.

CA2013-06-098, 2014-Ohio-1797, ¶ 12 (trial court had duty to address motion to waive

court costs filed five days before defendant was resentenced).

       {¶66} A review of the record establishes that the trial court initially determined

that Leonhart was indigent and appointed him counsel. At sentencing there was no
Washington App. No. 13CA38                                                                      30


evidence indicating a change in his financial condition. And at the conclusion of the

sentencing hearing, the trial court indicated that it understood that Leonhart was

indigent and if he was unable to hire anyone for purposes of appeal, the court would

appoint an attorney.

         {¶67} Consequently, the record establishes that Leonhart timely filed a motion to

waive costs but the trial court abused its discretion by not ruling on it. In fact, the trial

court appeared to have determined that Leonhart was still indigent at the time of

sentencing. Therefore, the portion of the trial court’s sentence imposing court costs

must be reversed and remanded so that the court can exercise its discretion by ruling

on the motion. Bishop at ¶ 12-13 (reversal and remand is required for the trial court to

rule on pending motion to waive court costs). We sustain Leonhart’s fifth assignment of

error.

                                        E. Restitution

         {¶68} In his sixth assignment of error Leonhart asserts that the trial court erred

when it ordered him to pay restitution. Leonhart contends that the trial court erred when

(1) it did not determine the amount in open court, and (2) it abused its discretion

because he lacks the present and future ability to pay it. Although Leonhart did not

object to the trial court’s imposition of restitution at the sentencing hearing, he did not

waive all but plain error because the trial court did not impose a specific amount at that

time. Therefore, he could not have disputed an amount that had not been ordered by

the trial court at sentencing.

         {¶69} “If the court imposes restitution, at sentencing, the court shall determine

the amount of restitution to be made by the offender.” R.C. 2929.18(A)(1). Here, the
Washington App. No. 13CA38                                                                   31


trial court committed plain error by failing to establish the amount of restitution at the

sentencing hearing. See State v. Collins, 2d Dist. Montgomery No. 21182, 2006-Ohio-

3036, ¶ 4, citing State v. Brodman, 3d Dist. Hardin Nos. 6-02-05 and 6-02-06, 2002-

Ohio-5584, ¶ 10 (“A trial court’s failure to establish the amount of restitution at the

sentencing hearing constitutes plain error requiring remand”).

       {¶70} Moreover, R.C. 2929.18(A)(1) provides that “[i]f the court imposes

restitution, the court shall order the restitution to be made in open court * * *.” The

defendant must be physically present during the imposition of sentence. Crim.R.

43(A)(1). A trial court commits reversible error when it fails to impose the amount of

restitution in open court during the sentencing hearing. See State v. Miller, 2d Dist.

Clark No. 08CA0090, 2010-Ohio-4760, ¶ 34. The parties agree that the court never

imposed restitution in a specific amount when it ordered it in an undetermined amount

at sentencing.

       {¶71} The state nevertheless claims that no prejudice occurred because the trial

court noted the request for restitution in the sum of $3,351.51, and neither side desired

to submit any evidence on restitution, The Second District Court of Appeals rejected a

similar argument in Miller at ¶ 34:

       The State does not dispute Defendant's contention that he was not
       physically before the court when the amount of restitution was imposed.
       The State instead argues that Defendant was not prejudiced on that
       account because the amount of restitution ordered, $11,730.20, was the
       amount of restitution that had been recommended in the presentence
       investigation report, which the court and the parties reviewed prior to the
       sentence that was imposed on September 2, 2008. We do not agree.
       Until an amount of restitution was imposed by the court, Defendant had no
       right to the hearing to which he is entitled by R.C. 2929.18(A)(1), should
       he dispute the amount ordered. Further, a defendant's physical presence
       is always required, absent an express waiver.
Washington App. No. 13CA38                                                                  32


       {¶72} Therefore, the trial court erred when it failed to determine an amount of

restitution it was imposing at the sentencing hearing, and its attempt to issue an

amended sentencing entry supplying the amount was erroneous because it was made

outside of Leonhart’s physical presence. Id. at ¶ 33 (“When a sentence that was

pronounced in open court is subsequently modified, and a judgment entry reflects the

modification, the modification must have been made in the defendant’s presence”). By

so holding, we need not address Leonhart’s remaining argument that the trial court

abused its discretion in ordering restitution because it is rendered moot. We sustain

Leonhart’s sixth assignment of error.

                            F. Ineffective Assistance of Counsel

       {¶73} In his seventh assignment of error Leonhart asserts that the acts and

omissions of his trial counsel deprived him of his right to the effective assistance of

counsel. To prevail on a claim of ineffective assistance of counsel, a criminal defendant

must establish (1) deficient performance by counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been

different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113;

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.

Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. The defendant has the

burden of proof because in Ohio, a properly licensed attorney is presumed competent.

State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Failure to

satisfy either part of the test is fatal to the claim. Strickland at 697; State v. Bradley, 42

Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
Washington App. No. 13CA38                                                               33


       {¶74} In this assignment of error Leonhart reiterates claims from his previous

assignments. He claims his counsel was ineffective for giving erroneous advice about

the length of his potential aggregate maximum sentence. See his first assignment of

error. However, Leonhart is unable to prove a reasonable probability of a different

outcome given: 1) the trial court’s detailed, explicit admonishments at the plea hearing,

2) Leonhart’s assurance that he understood that his potential maximum aggregate

sentence was life imprisonment with the possibility of parole after 52 years and 3) that

he understood that the trial court would impose sentence notwithstanding any promises

or representations by anybody else.

       {¶75} We analyzed his arguments concerning his trial counsel’s failure to object

to the merger of the aggravated burglary and felonious assault offenses under his

second assignment of error. Likewise we analyzed his argument about the trial court’s

imposition of consecutive and maximum sentences in his third and fourth assignments

of error. Based upon our disposition of these assignments of error, Leonhart cannot

establish either deficient performance or prejudice.

       {¶76} His trial counsel timely raised the issue of waiver of court costs by filing a

motion. See his fifth assignment of error. And the error detailed in his sixth assignment

of error concerning the restitution order was preserved notwithstanding any failure to

object by his trial counsel. Therefore, Leonhart has not established that his trial counsel

was constitutionally ineffective. We overrule his seventh assignment of error.

                                    IV. CONCLUSION

       {¶77} We overrule Leonhart’s first, second, third, fourth, and seventh

assignments of error and affirm the trial court’s judgments denying his postsentence
Washington App. No. 13CA38                                                         34


motions to withdraw his guilty plea and the portion of his sentence imposing his

aggregate prison term. However, we sustain Leonhart’s fifth and sixth assignments of

error and reverse the portion of his sentence imposing costs and restitution.

                                                      JUDGMENT AFFIRMED IN PART,
                                                              REVERSED IN PART,
                                                           AND CAUSE REMANDED.
Washington App. No. 13CA38                                                                  35


                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.

       The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.



                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
