Opinion
CA2022-08-077
07-17-2023
STATE OF OHIO, Appellee, v. TOMAS LEONICIO, Appellant.
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee. Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2022-03-0367
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
OPINION
HENDRICKSON, P.J.
{¶ 1} Appellant, Tomas Leonicio, appeals from his conviction in the Butler County Court of Common Pleas following his guilty plea to attempted failure to verify a current residence. For the reasons set forth below, we affirm his conviction.
{¶ 2} On March 23, 2022, appellant was indicted on one count of failure to verify a current residence, school, institution of higher education, or place of employment address (hereafter, "failure to verify a current residence") in violation of R.C. 2950.06(B)(1), a felony of the fourth degree. The charge arose out of allegations that appellant, a tier I sex offender as a result of a 2017 conviction for sexual imposition, failed to register his residential address. Appellant had a prior fifth-degree felony conviction for attempted failure to verify a residence in 2020.
{¶ 3} On July 18, 2022, following the state's response to appellant's discovery request and the parties' plea negotiations, appellant pled guilty to an amended charge of attempted failure to verify a current residence, a felony of the fifth degree. The trial court engaged appellant in a Crim.R. 11(C)(2) colloquy and accepted appellant's guilty plea after finding the plea had been knowingly, intelligently, and voluntarily entered. The trial court ordered a presentence investigative report ("PSI") and set the matter for sentencing.
{¶ 4} At the August 15, 2022 sentencing hearing, the trial court heard from defense counsel, appellant, and the state. Appellant expressed remorse for his actions and explained that around the time he was supposed to verify his residential address, he had broken his arm. The trial court then addressed appellant, noting that appellant had previously served a prison sentence for failing to verify his residence. The court commented appellant had done "nine months on this same thing just a year ago." After considering the record before it, the PSI, the statements presented at the sentencing hearing, the principles and purposes of felony sentencing pursuant to R.C. 2929.11, the seriousness and recidivism factors set forth in R.C. 2929.12, and whether community control was appropriate pursuant to R.C. 2929.13, the trial court determined appellant was not amenable to an available community control sanction. The court sentenced appellant to a 12-month prison term, to be served in the Butler County Jail pursuant to R.C. 2929.34.
{¶ 5} Appellant appealed his conviction, raising two assignments of error for review. However, before we can reach the merits of appellant's assigned errors, we must address two motions that were filed by the parties following briefing of the assigned errors.
State's Motion to Strike & Appellant's Motion for Judicial Notice
On January 19, 2023, this court preliminarily denied both the state's motion to strike and appellant's motion for judicial notice. See State v. Leonicio, 12th Dist. Butler CA2022-08-077 (Entry Denying Motion to Strike and Motion to Take Judicial Notice) (Jan. 19, 2023). However, at the time we denied the motions, we indicated that "the court [would] revisit these issues when the case [was] submitted to a panel for decision." Id. We find it appropriate to revisit these issues now.
{¶ 6} In appellant's brief, appellant's counsel included a partial image of a judgment entry that was signed by Hamilton Municipal Court Judge Daniel J. Gattermeyer on May 15, 2017. The image does not contain a case caption identifying the court, the name of the defendant, or the case number. It also does not identify the offense for which a 60-day jail term and two-year community control sanction was imposed. As "Specific Community Control Sanctions," the entry provides that the "defendant" is to have "no contact" with a named victim and is "to comply with sexual predator requirements."
{¶ 7} Appellant's counsel represented that the partial image had been taken from appellant's May 15, 2017 judgment entry sentencing him for sexual imposition in the Hamilton Municipal Court, a judgment entry that counsel indicated had been contained in the state's discovery response. Relying on this partial image, appellant argued in his appellate brief that the 2017 judgment entry failed to classify him as a tier I sex offender and that he did not have a duty to register his address, thereby affecting the validity of his July 18, 2022 guilty plea to the charge of attempted failure to verify a current residence.
{¶ 8} The state's June 23, 2022 discovery response identified a "Judgment Entry of Conviction (Sexual Imposition)" as one of the documents provided to appellant in discovery. However, the actual judgment entry was not attached to the discovery response filed by the state. As a result, the May 15, 2017 judgment entry is not part of the record on appeal. See App.R. 9(A)(1) ("The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases").
{¶ 9} The state filed a motion to strike from appellant's brief the "'interlineation' of a purported entry of a court" and requested that this court disregard those portions of appellant's brief which rely on the entry. The state argued that because the May 15, 2017 sentencing entry was not a part of the record in the case, this court could not consider it for the first time on appeal. In response to the state's argument, appellant filed a motion to have this court take judicial notice of the 2017 sexual imposition entry under Evid.R. 201. Appellant argues "judicial notice is mandatory" as the adjudicative fact-that is, whether the Hamilton Municipal Court imposed a tier I sanction in its 2017 sexual imposition entry-is an "indisputable fact" that comes from an accurate source. Appellant attached to his motion for judicial notice a certified copy of the May 15, 2017 Judgment Entry of Conviction for his conviction from Hamilton Municipal Court Case No. 15CRB03320-A. The state did not file a response to appellant's motion for judicial notice.
{¶ 10} As an initial matter, we note that "[a] reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of new matter." State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. "A court, however, may take judicial notice of adjudicative facts pursuant to Evid.R. 201." State v. Raymond, 10th Dist. Franklin No. 08AP-78, 2008-Ohio-6814, ¶ 15. Pursuant to Evid.R. 201(B), "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." "A court shall take judicial notice if requested by a party and supplied with the necessary information." (Emphasis added.) Evid.R. 201(D). See also State v. Lahmann, 12th Dist. Butler No. CA2006-03-058, 2007-Ohio-1795, ¶ 27 (noting that a court "must take judicial notice if requested by a party and supplied with the necessary information that would allow it to do so" under Evid.R. 201 [D]). Otherwise, it is within a court's discretion to take judicial notice. See Evid.R. 201 (C); State v. Isaac, 4th Dist. Meigs No. 17CA9, 2018-Ohio-5433, ¶ 12. "[Judicial notice may be taken at any stage of the proceeding, including on appeal." State v. Mays, 83 Ohio App.3d 610, 614 (4th Dist.1992), citing Evid.R. 201(F).
{¶ 11} "A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken." Evid.R. 201 (E). "If a party fails to timely request an opportunity to be heard regarding judicial notice, the party waives or forfeits any challenges to the judicially-noticed facts." Fettro v. Rombach Ctr., LLC, 12th Dist. Clinton No. CA2012-07-018, 2013-Ohio-2279, ¶ 30.
{¶ 12} Pursuant to Evid.R. 201(D), appellant requested that this court take judicial notice of the contents of his May 15, 2017 Judgment Entry of Conviction for his sexual imposition conviction in Hamilton Municipal Court Case No. 15CRB03320-A and supplied the court with a certified copy of the judgment entry. This court, therefore, must take judicial notice of the judgment entry pursuant to Evid.R. 201(D) so long as it is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Squire v. Geer, 117 Ohio St.3d 506, 2008-Ohio-1432, ¶ 12, citing Evid.R 201 (B).
{¶ 13} The May 15, 2017 Judgment Entry of Conviction and its contents are not subject to reasonable dispute under Evid.R. 201. The May 15, 2017 Judgment Entry of Conviction was certified by the Clerk of Court for the Hamilton Municipal Court, and it reflects appellant's conviction and sentence for sexual imposition in Hamilton Municipal Court Case No. 15CRB03320-A. The state has not contended that the document is not what it purports to be or that its accuracy is questionable, despite being provided with an opportunity to do so by responding to appellant's motion for judicial notice of the entry or when addressing the issue during oral argument. Under these circumstances, we find it appropriate to take judicial notice of the May 15, 2017 Judgment Entry of Conviction from Hamilton Municipal Court Case No. 15CRB03320-A. See Rollins v. Wayne, 5th Dist. Muskingum No. CT97-0031, 1998 Ohio App LEXIS 3074, *4 (June 2, 1998) ("to take judicial notice of a prior criminal proceeding, a * * * court must be supplied with a certified copy of the judgment entry of conviction or jury verdict").
{¶ 14} Appellant's "Motion to Take Judicial Notice of the 2017 Sexual Imposition Entry Under Evid. Rule 201" is hereby granted. The state's "Motion to Strike" is granted in part as it relates to the partial image set forth on page one of appellant's appellate brief as this image fails to contain any identifying information, including the name of the issuing court, the name of the defendant, or the case number. However, as this court has determined it is appropriate to take judicial notice of the May 15, 2017 Judgment Entry of Conviction from Hamilton Municipal Court Case No. 15CRB03320-A, we hereby deny the state's "Motion to Strike" those portions of appellant's brief that reference the 2017 entry as evidence outside the record.
The May 15, 2017 Judgment Entry of Conviction
{¶ 15} The May 15, 2017 Judgment Entry of Conviction from Hamilton Municipal Court Case No. 15CRB03320-A sentenced appellant to a 60-day jail term and two years of community control following his conviction for sexual imposition. The judgment entry specified appellant was "to comply with sexual predator requirements." Nowhere in the entry is appellant designated a "tier I sex offender."
{¶ 16} The statutory scheme for the classification and registration of sex offenders in effect at the time appellant entered his guilty plea and was sentenced in the 2017 Hamilton Municipal case was Ohio's version of the federal Adam Walsh Act. See 2007 Am.Sub.S.B. No. 10. The Adam Walsh Act, which was enacted in Ohio in 2007, includes a tier system wherein "offenders are classified as Tier I, Tier II, or Tier III sex offenders * * * based solely on the offender's offense." State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, ¶ 21. An individual convicted of sexual imposition in violation of R.C. 2907.06 is designated as a tier I sex offender. R.C. 2950.01(E). Tier I sex offenders are required to verify their current address annually for 15 years. See R.C. 2950.06(B)(1) and R.C. 2950.07(B)(3). The registration and verification requirements of the Adam Walsh Act are punitive and therefore part of the penalty imposed upon a defendant for the sex offense. See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 16; State v. Hagan, 12th Dist. Butler No. CA2018-07-136, 2019-Ohio-1047, ¶ 20.
{¶ 17} Before the enactment of the Adam Walsh Act, sexual offenders were classified and registered pursuant to Megan's Law. See 1996 Am.Sub.H.B. 180, 146 Ohio Laws, Part II, 2560; 2003 Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558. Under Megan's Law, the trial court was required to hold classification hearings and determine whether a defendant should have been classified a sexually oriented offender, a habitual sex offender, or a sexual predator. Bodyke, 2010-Ohio-2424, ¶ 21; State v. Cook, 83 Ohio St.3d 404, 407 (1998). "Megan's Law * * * included registration and address verification provisions, as well as community notification provisions." State v. Hartley, 10th Dist. Franklin No. 15AP-192, 2016-Ohio-2854, ¶ 9, citing Cook at ¶ 408-409. Megan's Law, unlike the Adam Walsh Act, was a "remedial consequence of a sex offense conviction and not a punitive component of a criminal sentence." State v. Jones, 12th Dist. Butler No. CA2020-07-080, 2021-Ohio-2149, ¶ 4, citing State ex rel. Grant v. Collins, 155 Ohio St.3d 242, 2018-Ohio-4281, ¶ 7, 17.
{¶ 18} In appellant's May 15, 2017 Judgment Entry of Conviction from Hamilton Municipal Court, the trial court referred to "sexual predator requirements"-a Megan's law classification-despite the fact that a "sexual predator" classification was no longer an available classification for a sexual offender under the Adam Walsh Act.
{¶ 19} With this understanding of appellant's May 15, 2017 Judgment Entry of Conviction in mind, we turn to his assignments of error.
Ineffective Assistance of Counsel Claim
{¶ 20} Assignment of Error No. 1:
{¶ 21} LEONICIO'S CONVICTION WAS UNCONSTITUTIONAL BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE AT THE PLEA PROCEEDING.
{¶ 22} In his first assignment of error, appellant argues he received ineffective assistance of counsel as it related to his decision to enter a guilty plea to the 2022 amended charge of attempted failure to verify a current residence.
{¶ 23} "A criminal defendant has the right, under both the United States and Ohio Constitutions, to the effective assistance of counsel." State v. Sales, 12th Dist. Butler No. CA2022-05-056, 2022-Ohio-4326, ¶ 37. "A plea of guilty waives the right to claim that one was prejudiced by ineffective assistance of counsel, except to the extent that such ineffective assistance made the plea less than knowing, intelligent, and voluntary." State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶ 33.
{¶ 24} "To prevail on an ineffective assistance of counsel claim in the context of a guilty plea, the defendant must show that (1) his counsel's performance was deficient and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty." State v. Arledge, 12th Dist. Clinton No. CA2018-12-024, 2019-Ohio-3147, ¶ 8, citing State v. Bird, 81 Ohio St.3d 582, 585 (1998). Deficient performance is defined as performance that fell below an objective standard of reasonableness. State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, ¶ 97. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Sales at ¶ 37, citing State v. Morici, 3d Dist. Allen No. 1 -21 -12, 2021 -Ohio-3406, ¶ 30. A defendant's failure to make an adequate showing on either prong is fatal to the defendant's ineffective assistance of counsel claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, ¶ 50.
{¶ 25} Appellant contends that his trial counsel was deficient for "failing to know the facts and basic law" regarding the imposition of tier I sex offender classification, registration, and verification. Appellant argues his trial counsel should have realized the May 15, 2017 Judgment Entry of Conviction from his Hamilton Municipal Court case failed to impose a sex-offender sanction under the Adam Walsh Act. Because no proper sex-offender classification was imposed on him in 2017 and because he already completed his sentence in the 2017 case and is therefore not subject to resentencing for classification under the Adam Walsh Act, appellant contends he had a valid defense to the 2022 charge of failing to verify his current residence. He argues he was prejudiced by counsel's failure to disclose this defense. Appellant maintains that "[b]ecause [he] resisted his minimal verification duties, he would have embraced a trial to defeat a conviction, a prison term, and eliminate his verification duties moving forward."
{¶ 26} "For counsel to render effective assistance to a criminal defendant, [counsel] should, at the least, understand the basis of the criminal charges and possible defenses of those charges." State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, ¶ 29 (10th Dist.). See also State v. Batdorf, 2d Dist. Greene Nos. 2020-CA-1 and 2020-CA-2, 2020-Ohio-4395, ¶ 9. "'If an attorney does not grasp the basics of the charges and the potential defenses to them, an accused may well be stripped of the very means that are essential to subject the prosecution's case to adversarial testing.'" Dalton at ¶ 29, quoting Scarpa v. Dubois, 38 F.3d 1, 10 (1st Cir.1994).
{¶ 27} The record before us is silent as to trial counsel's knowledge of the deficiencies in the May 15, 2017 Judgment Entry of Conviction from appellant's Hamilton Municipal Court case. Appellant asks us to assume that trial counsel did not know that the May 15, 2017 Judgment Entry failed to properly impose a tier I sanction under the Adam Walsh Act, did not disclose to appellant that the failure to properly impose the tier I sanction could serve as a defense to the present charge, and did not recommend that appellant reject the state's plea offer so that appellant could present the defense at trial. This court cannot speculate on trial counsel's knowledge, conversations with appellant, or plea advice to appellant. State v. Johnson, 5th Dist. Richland No. 11CA92, 2012-Ohio-3542, ¶ 31. We likewise cannot speculate as to the effect knowledge of the deficiencies in the May 2017 Judgment Entry of Conviction had or would have had on appellant's decision to enter a guilty plea. As the state points out in its appellate brief, "[the] record is silent on the issues [and] it is just as likely trial counsel appreciated any salient issues as to the duty to register, yet Appellant conveyed to counsel his desire to plead to a lesser offense as long as he did any incarceration locally (which is what happened)."
{¶ 28} "In a direct appeal, this court's review is limited to the evidence presented at trial, and we cannot consider matters outside the record before us." State v. Brodbeck, 10th Dist. Franklin No. 08AP-134, 2008-Ohio-6961, ¶ 64. Where an appellant's claim of ineffective assistance of counsel is based upon facts not in the record, the appropriate remedy is a petition for postconviction relief; see Brodbeck at ¶ 64; State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983); or a motion to withdraw a guilty plea. See Dalton, 2003-Ohio-3813.
{¶ 29} Based on the limited record before us, we conclude that trial counsel's performance was not deficient and that appellant was not prejudiced by the alleged deficient performance. See State v. Gazaway, 12th Dist. Butler No. CA2018-12-236, 2019-Ohio-5164, ¶ 51 ("Mere speculation and unsupported suggestions of what might have been established does not demonstrate counsel's deficient performance nor the prejudice required to support an ineffective assistance of counsel claim"). Appellant's first assignment of error is, therefore, overruled.
Claim Plea Was Not Knowingly, Intelligently, or Voluntarily Entered
{¶ 30} Assignment of Error No. 2:
{¶ 31} LEONICIO'S CONVICTION WAS UNCONSTITUTIONAL UNDER DUE PROCESS BECAUSE HIS PLEA WAS NOT KNOWING, INTELLIGENT, OR VOLUNTARY.
{¶ 32} In his second assignment of error, appellant argues his plea was not knowingly, intelligently, or voluntarily entered because he was "made to believe" he was a tier I sex offender with registration duties as a result of his 2017 conviction for sexual imposition when such "belief was erroneous because the * * * [2017] entry failed to impose a Tier I sanction."
{¶ 33} "When a defendant enters a guilty plea in a criminal case, the plea must be knowingly, intelligently, and voluntarily made." State v. Hagan, 12th Dist. Butler No. CA2018-07-136, 2019-Ohio-1047, ¶ 16. See also State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, ¶ 10. "Failure on any of those points 'renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.'" State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶ 21 (12th Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). "To ensure that a defendant's guilty plea is knowingly, intelligently and voluntarily made, the trial court must engage the defendant in a plea colloquy pursuant to Crim.R. 11(C)." Hagan at ¶ 16. See also Dangler at ¶ 11.
{¶ 34} "In general, 'a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C),' i.e., that 'the plea would [not] have otherwise been made.'" State v. Henson, 12th Dist. Fayette No. CA2021-12-029, 2022-Ohio-2828, ¶ 6, quoting Dangler at ¶ 16. "However, there are two exceptions to this rule: (1) when the trial court fails to explain the constitutional rights set forth in Crim.R. 11 (C)(2)(c) that a defendant waives by pleading guilty or no contest, and (2) 'a trial court's complete failure to comply with a portion of Crim.R. 11(C).'" Id., quoting Dangler at ¶ 15. Under either exception, the defendant is not required to show prejudice. Id.
(¶ 35} Appellant has not specifically identified any problem in the trial court's Crim.R. 11 colloquy and the record reflects that the trial court complied with the requirements of Crim.R. 11 (C) in advising him of the constitutional rights he was waiving and in covering the other nonconstitutional aspects of his guilty plea. Nonetheless, appellant maintains his guilty plea was unknowingly and unintelligently made because he "was made to believe by authorities that he had a Tier I classification," which was erroneous.
{¶ 36} Citing the Ohio Supreme Court's decision in State v. Engle, 74 Ohio St.3d 525 (1996), the Fourth District Court of Appeals decision in State v. Bryant, 4th Dist. Meigs No. 11CA19, 2012-Ohio-3189, and the Eleventh Circuit Court of Appeals decision in United States v. Brown, 117 F.3d 471 (11th Cir.1997), appellant argues that the "erroneous understanding of the applicable law" regarding his duty to register as a sex offender invalidated his plea. In both Engle and Bryant, the respective defendants were inaccurately advised of their rights by the prosecutor and the trial court during plea discussions and the Crim.R. 11 plea colloquy. Specifically, in Engle, after trial had commenced, the state presented its case-in-chief, and the defendant's motion for acquittal was denied, the state filed a motion in limine to preclude the defendant from presenting evidence of duress and battered woman syndrome when presenting her defense. Engle at 526. The trial court granted the state's motion. Id. The defendant, based on representations made to her by her defense counsel and the prosecutor, decided to plead no contest to multiple charges surrounding the death of one of her children and appeal the trial court's adverse rulings regarding her ability to present her defense and the denial of her Crim.R. 29 motion. Id. at 525-528. Defense counsel, the prosecutor, and the trial court were all under the misimpression that the defendant would be able to appeal the trial court's trial rulings and would not be limited to appealing pretrial motion decisions. Id. at 527. Following statements made by the prosecutor about appellant wanting to "fil[e] an appeal * * * [of] the Court's rulings that have been rendered previously in this case" the court advised appellant during the plea colloquy, "I want to be sure you understand that you have the right to appeal the decision of this Court." Id.at 525, 528. The Ohio Supreme Court found that there could be "no doubt that the defendant's plea was predicated on a belief that she could appeal the trial court's rulings that her counsel believed had stripped her of any meaningful defense. Therefore, her plea was not made knowingly or intelligently." Id. at 528.
{¶ 37} In Bryant, the defendant pled guilty to two counts of trafficking in cocaine, one a felony of the second degree and the other a felony of the third degree. Bryant, 2012-Ohio-3189, ¶ 3. The defendant had been advised by his trial counsel and the state that the recommended sentence would be six years for the second-degree felony and four years for the third-degree felony, to be served consecutively. Id. However, at the plea hearing, "there was extensive discussion between [defense] counsel, the State and the trial court regarding the way in which [the defendant's] sentence would be structured." Id. "[I]t was [ultimately] agreed by all that [the defendant] would be sentenced to a combined term of ten years, five of which would be mandatory, and that [the defendant] would be eligible to apply for judicial release after serving the five mandatory years." Id. Therefore, the defendant entered the guilty plea with the understanding he would be eligible for judicial release after five years. Id.
{¶ 38} On appeal, the defendant argued his plea was not knowingly, intelligently, or voluntarily made as he was mistakenly advised of his eligibility for judicial release when both of his trafficking offenses required mandatory prison terms. Id. at ¶ 5. The Fourth District agreed, stating that "[w]hen a defendant's guilty plea is induced by erroneous representations as to the applicable law, including eligibility for judicial release, the plea is not knowingly, intelligently, and voluntarily made." Id. at ¶ 8. The court noted the defendant "would not be eligible to apply for judicial release until five years after he completed his five years of mandatory sentences, which would be ten years. Clearly this is five years later than what was represented to him by his counsel, the State, and the trial court during the plea hearing." Id. at ¶ 12. As such, the Fourth District found that the defendant's guilty plea was not entered into knowingly or intelligently and was therefore void. Id. at ¶ 17.
{¶ 39} In Brown, the defendant entered a guilty plea to a charge of structuring currency transactions to avoid the reporting requirements of 31 U.S.C. 5313(A). Brown, 117 F.3d at 473. He did so based on an erroneous interpretation of the law. Id. At the time the defendant entered his plea, the law in the Eleventh Circuit stated that "'the prosecution need not prove the defendant was aware of the illegality of money structuring in order to convict the defendant of that offense.'" Id., quoting United States v. Brown, 954 F.2d 1563, 1568 (11th Cir.1992). The defendant, at the time he entered his plea, stated that he "didn't feel like at the time that [he] was really guilty of any crime." Id. However, on the advice of counsel and after becoming aware of the Eleventh Circuit's decision in Brown, 954 F.2d 1563, the defendant entered his guilty plea. The Eleventh Circuit's decision in Brown was later overruled by the Supreme Court, which held that the willfulness requirement contained in the criminal enforcement provision then applicable to a structuring charge required the government to prove that "the defendant acted with knowledge that his conduct was unlawful." Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655 (1994).
{¶ 40} Relying on the holding in Ratzlaf, the defendant sought to withdraw his guilty plea, contending that he had not knowingly and voluntarily entered the plea because he had been misinformed about the essential elements of the crime. Brown, 117 F.3d at 474. The district court denied his motion. On appeal, the Eleventh District reversed the trial court's decision and granted relief to the defendant, finding that the defendant's plea was not voluntary because he had not been given "real notice" of the true nature of the charge against him since he had been misinformed about a critical element of the charge. Id. at 476-478.
{¶ 41} The present case differs from Engle, Bryant, and Brown in that the existing record does not contain any inaccurate advice by trial counsel, misstatements of rights by the trial court, or any misinformation about the nature of the charge appellant faced. At the plea hearing appellant was apprised that, pursuant to plea negotiations, he faced an amended charge of attempted failure to verify a current residence under R.C. 2923.02 and 2950.06. The court spoke with appellant about the nature of the charges, his right to call witnesses to present a defense, and the prosecutor's obligation to "prove[ ] all of the elements of the crime beyond a reasonable doubt. If he's not able to do that, you would have - you'd have to be found not guilty. That's the way that works." (Emphasis added.)
After appellant was provided with a full colloquy under Crim.R. 11, the prosecutor laid out the following statement of facts for the charge of attempted failure to verify a current residence, which appellant admitted was a true and accurate statement:
[Prosecutor]: Count I amended. [O]n or about October 7th of 2021 through January 20th of 2022 in Butler County, Ohio, Mr. Leonicio did attempt - or did, being a person who was required to verify a current residence, school, institution, or higher -institution of higher education or place of employment address as applicable - I don't even know how to word this - attempted to fail - attempted -
THE COURT: Engaged in conduct that successfully resulted in __
-
[Prosecutor]: Yah, there we go - is applicable in accordance with those failed to give his address in accordance with those divisions by the date required.
For the verification, as set forth in division B of section 2950.06, the most serious sexually oriented offense or child-victim-oriented offense was - that was the basis of the registration notice (indiscernible) reside change of address notification or address verification requirement that was violated under the prohibition is a penalty in a fifth degree or misdemeanor if committed by an adult or comparable category of offense committed under - in another jurisdiction which constitutes the offense of attempted failure to verify a current residence, school, institution of higher education, or place of employment address. A fifth degree felony of violation of [R.C.] 2950.06 and 2923.02.
THE COURT: Thank you, Mr. [Prosecutor]. [Defense Counsel], do you agree [that] those facts constitute the elements of the offense in which your client's pleading guilty?
[Defense Counsel]: Yes, Judge.
THE COURT: Mr. Leonicio, do you admit the prosecutor's statement of facts is a true and accurate statement right now?
[Defendant]: Yes, Your Honor.
Therefore, unlike in Brown, the trial court and prosecutor did not misstate the elements of the charged offense.
{¶ 42} Appellant contends he did not know he had a defense to the charged offense of failure to verify a current residence. As discussed in our resolution of appellant's first assignment of error, this court cannot speculate as to conversations appellant and trial counsel may have had regarding the deficiencies in the May 15, 2017 Judgment Entry or any defenses counsel could present to the charge of failure to verify a current residence. Such evidence is outside the record. See Johnson, 2012-Ohio-3542 at ¶ 31. To the extent appellant suggests that during the plea colloquy the trial court should have specifically advised him that he could defend against the charge of failing to verify a residence by attacking the imposition of his 2017 sex offender classification, we find such an argument to be without merit. "[A] trial court is not required to apprise a pleading defendant of the availability of defenses, even in circumstances where the same statute that defines the offense defines various affirmative defenses." State v. Triplett, 10th Dist. Franklin No. 11AP-30, 2011-Ohio-4480, ¶ 23, citing State v. Ingram, 7th Dist. No. 09 MA 98, 2010-Ohio-1093, ¶ 22. See also State v. Reynolds, 40 Ohio St.3d 334, 335-336 (1988). Furthermore, from the record before us, it does not appear that the trial court had viewed the May 15, 2017 Judgment Entry from the Hamilton Municipal Court case or had any knowledge of the entry's deficiencies.
{¶ 43} Based on the record before us, we find that the trial court engaged in a full and appropriate plea colloquy pursuant to Crim.R. 11(C). Nothing in the record before us demonstrates that appellant was misled by the trial court, prosecutor, or defense counsel about the rights he was waiving or the elements of the offense to which he was pleading. Appellant's plea was knowingly, intelligently, and voluntarily entered and his second assignment of error is, therefore, overruled.
{¶ 44} Accordingly, for the reasons set forth above, the state's December 19, 2022 "Motion to Strike" portions of appellant's brief is granted in part and denied in part, appellant's December 27, 2022 "Motion to Take Judicial Notice of the 2017 Sexual Imposition Entry Under Evid. Rule 201" is granted, and the judgment of the trial court is affirmed.
PIPER and BYRNE, JJ., concur.