[Cite as State v. Haney, 2013-Ohio-1924.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.    25344

v.                                                   :            T.C. NO.    12CR684

BRIAN S. HANEY                                       :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                            ..........

                                            OPINION

                         Rendered on the      10th       day of         May       , 2013.

                                            ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 765 Troy Street, Dayton, Ohio
45404
      Attorney for Defendant-Appellant

BRIAN S. HANEY, #667876, P. O. Box 540, Saint Clairsville, Ohio 43950
     Defendant-Appellant

                                            ..........

FROELICH, J.
[Cite as State v. Haney, 2013-Ohio-1924.]
                {¶ 1} Brian S. Haney pled guilty in the Montgomery County Court of

Common Pleas to one count of domestic violence (with a prior conviction involving a family

or household member), a fourth-degree felony. Prior to sentencing, but after the court

indicated that it intended to impose a prison term, Haney sought to withdraw his plea. After

a hearing, the trial court denied the motion. The trial court sentenced Haney to 12 months

in prison and ordered him to pay court costs.

        {¶ 2}     Haney’s appellate counsel filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the

record and the law, he found no potentially meritorious issues for appeal. Counsel set forth

three potential assignments of error, namely (1) that the trial court should have granted

Haney’s motion to withdraw his plea based on a manifest injustice, (2) that Haney did not

fully understand his constitutional rights prior to pleading guilty, and (3) that Haney received

ineffective assistance of counsel.

        {¶ 3}      By entry, we informed Haney that his attorney had filed an Anders brief on

his behalf and granted him 60 days from that date to file a pro se brief. To date, no pro se

brief has been filed. The case is now before us for our independent review of the record.

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

        {¶ 4}     In his first potential assignment of error, Haney’s counsel claims that the

trial court should have granted Haney’s motion to withdraw his plea. Haney pled guilty to

domestic violence on April 19, 2012.         A presentence investigation was ordered, and

sentencing was scheduled for May 10, 2012. On May 10, prior to the sentencing hearing,

the trial court indicated to defense counsel that it intended to impose a 12-month prison

sentence. Counsel relayed that information to Haney, who expressed, on the record, a
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desire to withdraw his plea; the sentencing hearing did not proceed.

       {¶ 5}     The court appointed new counsel for Haney, who filed a written motion to

withdraw the guilty plea. Haney’s motion asserted that he was promised that there would

be no opposition to treatment and that he would not be incarcerated if he accepted the plea.

In his affidavit in support of the motion, Haney also stated that his original counsel did not

show him the discovery in his case and failed to appear for hearings.

       {¶ 6}    The trial court held a hearing on Haney’s motion, during which Haney

testified on his own behalf. Haney testified that he was told by his original counsel that “the

prosecutor was not going to reduce the charges back to misdemeanors, but if I pled guilty

that day on the day of the scheduling conference, April 19th, that if I was recommended for

residential treatment that the Judge would not oppose it.” Haney understood that there

would be a presentence investigation and that the trial court would sentence him based on

the report. Haney testified that he told pretrial services that he wanted help with his anger

and drinking issues and that he was already attending a domestic violence class during his

pretrial confinement.    Haney was told that the report would recommend residential

treatment. When Haney came for sentencing on May 10, his attorney told him that the trial

court no longer wanted him to go to treatment and, instead, wanted Haney to serve one year

in prison. Haney indicated that his goal was to receive treatment, so he asked to withdraw

his plea. Haney testified that he did not have any problem with his original counsel’s

representation of him.

       {¶ 7}    The State called Haney’s original counsel, Thomas Manning, to testify at the

hearing. Manning testified that he discussed the potential consequences of a guilty plea
                                                                                            4

with Haney on several occasions. Haney was “very upfront with me [Manning] about the

fact that he believed he had some issues, substance and anger issues, and that he wanted to

have them addressed through a treatment program.” Manning stated that he expressed those

concerns to the judge. Manning also testified that he explained to Haney that, if the

presentence investigation report recommended community control with treatment, the judge

“would probably be more likely than not to follow that, but that the Judge ultimately can

make her own decision.” Manning stated that he did not promise that Haney would receive

treatment if the report recommended treatment. Additionally, Manning testified that he

provided a copy of the discovery packet to Haney.

       {¶ 8}    At the end of the hearing, the trial court orally overruled Haney’s motion to

withdraw his plea. The court treated the motion as a post-sentence motion, which requires a

showing of a manifest injustice. The court concluded that a manifest injustice was not

shown. The court stated that there was no defect in the plea hearing, and Haney was

advised of the potential for a term of imprisonment.         The court noted that the PSI

recommended that Haney be sentenced to prison.

       {¶ 9}    We find no arguable error in the trial court’s denial of Haney’s motion to

withdraw his plea. “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.”

Crim.R. 32.1.

       {¶ 10}    This court has held that a motion to withdraw a plea that is made before

sentencing, but after learning of the imminent sentence to be imposed, is considered to be
                                                                                           5

filed after sentencing. E.g., State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571,

2009-Ohio-295, ¶ 7, citing State v. Long, 2d Dist. Montgomery No. 13285, 1993 WL

155662, *6 (May 13, 1993); State v. Sylvester, 2d Dist. Montgomery No. 22289,

2008-Ohio-2901. This approach is consistent with the purpose behind the post-sentencing

standard.   Id.   As we stated in State v. Fugate, 2d Dist. Montgomery No. 21574,

2007-Ohio-26, ¶ 17: “The post-sentence ‘manifest injustice’ standard is aimed at cases

where a defendant pleads guilty without knowing what his sentence will be, finds out that his

sentence is worse than he had hoped and expected, and then seeks to vacate his plea.”

       {¶ 11}     Consideration of a motion to withdraw a plea after sentencing is addressed

to the sound discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977), at paragraph two of the syllabus. Thus, an appellate court reviews the trial

court’s decision under an abuse of discretion standard.      Id.; State v. Harris, 2d Dist.

Montgomery No. 19013, 2002 WL 940186, *1 (May 10, 2002). An abuse of discretion

means that the court’s attitude is unreasonable, arbitrary or unconscionable. State v. Adams,

62 Ohio St .2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 12} In this case, Haney moved to withdraw his plea after learning that he would

be sentenced to prison, rather than to community control with treatment. It was undisputed

that Haney was not promised treatment, regardless of the outcome of the presentence

investigation. Haney was aware that the judge would sentence him after reviewing the

presentence investigation report; although Haney believed he would be recommended for

treatment, the report actually recommended a prison term. We find no potentially arguable

claim that Haney’s plea resulted in a manifest injustice.
[Cite as State v. Haney, 2013-Ohio-1924.]
        {¶ 13}     Moreover, Haney has no arguably meritorious claim that his plea hearing

was defective.      An appellate court must determine whether the record affirmatively

demonstrates that a defendant’s plea was made knowingly, intelligently, and voluntarily.

State v. Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7. “If a defendant's

guilty plea is not knowing and voluntary, it has been obtained in violation of due process and

is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 & 24705, 2012-Ohio-199, ¶ 13,

citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In

order for a plea to be given knowingly and voluntarily, the trial court must follow the

mandates of Crim.R. 11(C). Brown at ¶ 13.

        {¶ 14}     Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges and the

maximum penalty, and, if applicable, that the defendant is not eligible for probation or for

the imposition of community control sanctions; (b) inform the defendant of and determine

that the defendant 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 sentencing; and

(c) inform the defendant and determine that he understands that, by entering the plea, the

defendant is waiving the rights to a jury trial, to confront witnesses against him, to have

compulsory process for obtaining witnesses, and to require the State to prove his guilt

beyond a reasonable doubt at a trial at which he cannot be compelled to testify against

himself. State v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.

        {¶ 15}     The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial
                                                                                               7

court need only substantially comply with those requirements. E.g., State v. Nero, 56 Ohio

St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that under the

totality of the circumstances the defendant subjectively understands the implications of his

plea and the rights he is waiving.” Id. In contrast, the trial court must strictly comply with

Crim .R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at ¶

31.

       {¶ 16}    Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea

would otherwise not have been entered. Id. at ¶ 15, 897 N.E.2d 621. Where the trial court

completely fails to comply with Crim.R. 11(C)(2)(a) or (b), however, “an analysis of

prejudice” is not implicated. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881

N.E.2d 1224, ¶ 22.

       {¶ 17}    The record of the plea hearing in this case shows that the trial court

complied with both of the constitutional and non-constitutional provisions of Crim.R. 11(C),

and properly found that Haney’s plea was knowingly, intelligently and voluntarily entered.

The trial court thoroughly explained the possible sentences that Haney could receive for the

fourth-degree felony, including a maximum 18-month prison sentence, as well as the fact

that his post-release control could be revoked due to his guilty plea in this case. The court

told Haney that, if he were sent to prison, he could be subject to post-release control after his

release, and the court noted the consequences if Haney violated his post-release control.
                                                                                             8

The court notified Haney that it was going to order a presentence investigation “for purposes

of determining an appropriate sentence.”

       {¶ 18} Haney denied being under the influence of drugs or alcohol. Haney stated

that he was entering his plea of his own free will and that he was neither threatened nor had

any promises made to him to induce him to plead. Haney understood that his guilty plea

was a complete admission of guilt. The trial court confirmed that Haney was a United

States citizen and that he understood each of the rights he was waiving by pleading guilty.

The State read the charge against Haney and Haney agreed that the facts were true. Haney

signed the plea form in open court; he had no questions or concerns before doing so. The

trial court accepted Haney’s guilty plea.

       {¶ 19} The record demonstrates that Haney’s guilty plea was knowingly,

intelligently, and voluntarily entered. Therefore, the assigned potential error with respect to

the validity of his plea lacks arguable merit.

       {¶ 20} The third potential assignment of error contends that Haney’s original trial

counsel was ineffective because he did not give Haney enough time to fully understand the

consequences of his guilty plea. There is nothing in the record to support this assertion.

Therefore, we find no arguable merit to this claim.

       {¶ 21} Upon our independent review of the record, we note that the trial court did

not inform Haney, as then required by R.C. 2947.23(A)(1)(a), that he could be required to

perform community service if he failed to pay his court costs.          The statute currently

provides that the failure to give this notice does not affect the court’s ability to require

community service and, effective March 22, 2013, the trial court is no longer required to
                                                                                        9

give this notice to offenders who receive a prison sentence. See 2012 Sub.H.B. 247. In

circumstances similar to Haney’s, we have modified the defendant’s sentence to eliminate

any possibility that the defendant can be mandated to perform community service in lieu of

court costs. See State v. Veal, 2d Dist. Montgomery No. 25253, 2013-Ohio-1577, ¶ 20.

We therefore modify Haney’s sentence to remove the possibility that Haney be required to

perform community service should he fail to pay court costs.

       {¶ 22} We have thoroughly reviewed the record, and we find no other potentially

meritorious issues. The trial court’s judgment will be affirmed, as modified.



                                        ..........

FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to:

Carley J. Ingram
Enrique G. Rivera-Cerezo
Brian S. Haney
Hon. Mary L. Wiseman
