         [Cite as State v. Leonard, 2014-Ohio-3828.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                     :    APPEAL NO. C-130474
                                                       TRIAL NO. B-1302836
        Plaintiff-Appellee,                       :

  vs.                                             :
                                                            O P I N I O N.
GREGORY ALLEN LEONARD,                            :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 5, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.


       {¶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 R.C. 2925.03(A)(2). For the

reasons that follow, we affirm.

                                  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 made voluntarily, intelligently, and with knowledge of its consequences. As

part of the Crim.R. 11 plea colloquy, the court explained to Leonard that he was

facing a maximum penalty of 18 months in prison or five years of community control

instead of prison.

       {¶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

representative 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.




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       {¶5}    About a month later, on the day before the scheduled sentencing

hearing, Leonard filed a pro se motion to withdraw his plea under Crim.R. 32.1.

Leonard did not include any reason for the withdrawal in the motion.            At the

sentencing hearing, defense counsel informed the court of the motion, and the court

deferred sentencing to hear the motion.

       {¶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 nonreporting 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 court 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 prejudice 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

appeals 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,



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voluntarily, and intelligently entered. Leonard contends that the trial court failed to

orally inform him of the maximum possible penalties that he faced, as required by

Crim.R. 11.

       {¶10}   Crim.R. 11(C) sets forth the steps the trial court must follow before

accepting a plea of guilty in a felony case. See State v. Francis, 104 Ohio St.3d 490,

2004-Ohio-6894, 820 N.E.2d 355, ¶ 28. Pursuant to that “framework,” the court

must inform the defendant of the constitutional rights he is waiving and of several

nonconstitutionally-based matters, including the “ ‘maximum penalty’ ” involved, to

ensure that the plea is entered voluntarily, intelligently, and with knowledge of its

consequences. Id. at ¶ 28-29.

       {¶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 provide a DNA sample and that if he failed to do so he could be

sanctioned.

       {¶12} We assume that Leonard’s argument pertains to R.C. 2901.07, Ohio’s
DNA collection law, which required Leonard to provide a DNA sample to law

enforcement that would be added to Ohio’s DNA database. For an offender such as

Leonard, who was arrested for a felony after July 1, 2011, this obligation arose upon

his arrest for this felony, see R.C. 2901.07(B)(1)(a), and was a continuing one. R.C.

2901.07(B)(2) through (5).

       {¶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 arrested. R.C. 2901.07(B)(4)(a).

Leonard’s failure to comply with this condition would have been a violation of his

community control and could have led to imprisonment.

       {¶14} We reject Leonard’s argument, without examining whether Crim.R. 11
mandates that the trial court inform a defendant of the potential sanctions for failing



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to comply with R.C. 2901.07, because the record demonstrates that Leonard had

already complied with the requirement of R.C. 2901.07 at the time he entered his

plea. Therefore, Leonard was not subject to the future sanction that he claims the

court was required to orally inform him of at the plea hearing.

        {¶15} Leonard also suggests that the trial court’s failure to provide him
notice of the possible immigration-related consequences of his plea, as set forth in

R.C. 2943.031(A), rendered his plea defective.

        {¶16} R.C. 2943.031(A) does require the trial court to advise a defendant at
the plea hearing of the possible deportation consequences of his guilty plea, and the

failure to provide the warning of those collateral consequences may render the plea

defective under a Crim.R. 11 analysis, if the defendant is not a citizen of the United

States. See Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355. But the

notification set forth in R.C. 2943.031(A) is not required under certain

circumstances, including when the defendant enters a plea of guilty on a written

form and provides an affirmative response on the form in response to the question of

whether he is citizen of the United States. R.C. 2943.031(B).

        {¶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 warning

set forth in R.C. 2943.031(A), and Leonard has not demonstrated that his plea was

defective on this ground.

        {¶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, Leonard contends that the trial court
abused its discretion when it denied his presentence motion to withdraw his guilty

plea.



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       {¶20} The Ohio Supreme Court has held that a trial court should “freely and
liberally grant” a presentence motion to withdraw a guilty plea, where the defendant

has supplied the court with a “reasonable and legitimate basis” for the withdrawal.

State v. Xie, 62 Ohio St.3d 521, 526-527, 584 N.E.2d 715 (1992). A defendant,

however, has no absolute right to withdraw a guilty plea before sentencing. Id. at

paragraph one of the syllabus.

       {¶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

court’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

represented by highly competent counsel; (2) whether the defendant was afforded a

complete Crim.R. 11 hearing before entering the plea; (3) whether the court

conducted a full and impartial hearing on the motion, at which time the trial court

gave full and fair consideration to the motion; (4) whether the motion was made

within a reasonable time; (5) whether the motion set forth specific reasons for the

withdrawal; (6) whether the defendant understood the nature of the charges and the

possible penalties; (7) whether the defendant was possibly not guilty of the charges

or had a complete defense to the charges; and (8) whether the state would have been

prejudiced by the withdrawal.

       {¶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 been prejudiced by his withdrawal.



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       {¶24} Based on this record, we cannot conclude that the trial court abused its
discretion in denying Leonard’s motion to withdraw his guilty plea. As the trial court

noted, when Leonard entered his guilty plea, he was represented by an experienced

attorney. The trial court provided Leonard a complete Crim.R. 11 hearing before

accepting his plea, which resulted in a colloquy that was more than sufficient to

ensure that Leonard had entered his guilty plea voluntarily, intelligently, and

knowingly.

       {¶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,

the 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 that 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.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



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 case, 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 to 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

consider” 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.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Accordingly, we overrule the first assignment of error.

          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} R.C. 2947.23(A)(1) provides that if a court imposes court costs on a
defendant as a part of the judgment, and the court imposes “a community control

sanction or other nonresidential sanction,” the court must notify the defendant that

in the event “the defendant fails to pay that judgment or fails to timely make

payments towards that judgment under an approved payment plan,” the court can

order the defendant to perform community service, which will be credited to the

defendant’s obligation under the judgment. R.C. 2947.23(A)(1)(a)(i)and (ii).

       {¶36} In this case, the trial court imposed community control but did not
notify Leonard, in accordance with R.C. 2947.23(A)(1)(a), that the court could order

him to perform community service if he failed to pay or to make timely payments.

       {¶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 R.C. 2947.23(A)(1) “does not negate or limit the authority of

the court to order the defendant to perform community service if the defendant fails

to pay the judgment * * * or to timely make payments toward that judgment under

an approved payment plan.” R.C. 2947.23(A)(1).

       {¶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,




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                     OHIO FIRST DISTRICT COURT OF APPEALS



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.




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