COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71664 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD IRIZARRY : : Defendant-appellant : : PER CURIAM DATE OF ANNOUNCEMENT : MAY 22, 1997 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-342307 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor Suite 1016 MARK J. MAHONEY, ESQ. 75 Public Square Assistant County Prosecutor Cleveland, Ohio 44113-2098 1200 Ontario Street Cleveland, OH 44113 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs. Defendant Richard Irizarry pleaded guilty to one count of drug trafficking, in violation of R.C. 2925.03. The count contained a specification that defendant committed the offense on school premises or within one thousand feet of the boundaries of a school premises. In exchange for the guilty plea, the state agreed to drop a drug possession charge and a charge of possession of criminal tools. The state further conditioned the plea bargain on defendant's truthful testimony in a related criminal matter. Defense counsel originally asked that a presentence report be prepared, but withdrew that request in order to expedite sentencing. The trial court sentenced defendant to a five year term of incarceration. Defendant's assigned errors challenge various aspects of the guilty plea proceedings. A Defendant's first assignment of error is that the trial court denied him due process of law when it accepted his guilty plea without informing him that he would be ineligible for a community control sanction absent a presentence report. He maintains that once counsel withdrew the request for a presentence investigation report, the trial court could not order probation; therefore, his sentence was, in effect, non-probationable and the court should have advised him of that fact. - 3 - Crim.R. 11(C)(2)(a) requires the trial court to advise a defendant that, if applicable, he is not eligible for probation. At the time defendant entered his plea, he was eligible for a community control sanction and the trial court duly advised defendant of that fact. The court stated, "I can give you community controlled sanctions, and that would be sentence of probation where you have to do various things, report to probation, report to community work service, go to drug treatment, pay money, whatever; do you understand that?" Only after defendant pleaded guilty to the charged offense did he withdraw his request for a presentence investigation report; therefore, the trial court did not violate Crim.R. 11(C)(2)(a). B Defendant's second assignment of error is that the trial court amended the indictment and changed the nature of the offense in two respects. First, defendant argues the trial court changed the identity of the controlled substance from cocaine to crack cocaine. Second, he maintains the trial court elevated the degree of the offense from a fourth degree felony to a third degree felony. 1 The indictment charged defendant knowingly sold or offered to sell "cocaine, in unit dose form," in an amount more than one gram but less than five grams. The term "unit dose" is defined in R.C. 2925.01(E) as an amount or unit of a controlled substance "that is separately identifiable and is in a form indicating *** it is the - 4 - amount or unit by which the controlled substance is *** taken by an individual." Individual rocks of crack cocaine are considered unit doses within the meaning of the statute. See State v. McCoy (1989), 63 Ohio App.3d 644, 646. The trial judge stated, "[t]hey say you unlawfully and knowingly sold or offered to sell a controlled substance in unit form; that means crack cocaine ***." This statement accurately summarized the contents of the indictment and did not constitute an amendment of the indictment because it did not change either the name or identity of the crime charged. See Crim.R. 7(D). 2 Defendant's next argument is premised upon an exchange between the court and counsel. At the start of the plea proceedings, counsel for the state mistakenly assumed defendant had been charged with a fourth degree felony. The trial judge interrupted, noting the offense was a third degree felony. The parties went off the record to discuss the matter, and then represented to the court that the trafficking charge was a third degree felony. Defendant argues this constituted an improper amendment to the indictment. The trial judge did not amend the indictment by pointing out the state's obvious error in misconstruing the degree of the offense. Pursuant to R.C. 2925.03(C)(4)(c), a trafficking offense constitutes a felony of the third degree if the crack cocaine exceeds one gram but does not exceed five grams, and the offense was committed in the vicinity of a school. - 5 - Defendant argues that the specification to the indictment specifically referred to R.C. 2925.03(C)(2)(b) (which pertains to offenses relating to schedule III, IV or V substances) and makes the offense a fourth degree felony. The trial judge noted the obvious error in listing the specification under R.C. 2925.03(C)(2)(b) because crack cocaine is a schedule II substance, and went off the record to discuss the matter with the parties. Back on the record, the trial judge stated: "So we're all clear, we had a discussion off the record that the specific crime Mr. Irizarry is charged with is aggravated drug trafficking under 2925.03(C), Subsection (4)(c), that that is a third-degree felony and there is a presumption in favor of prison. ***" Since defendant's possession of a schedule II substance clearly precluded application of R.C. 2925.03(C)(2)(b), he could not have been misled by the clerical error. See State v. Mays (1995), 104 Ohio App.3d 241, 245. C The third assignment of error challenges the constitutionality of the plea colloquy, characterizing the proceedings as "a mess." The only new argument raised in this assignment, however, is that the trial court failed to inform defendant that his driver's license could be revoked pursuant to R.C. 2925.03(D)(2). This argument lacks merit for the reason that the trial court did not suspend defendant's driver's license. Our review of the plea colloquy shows the trial court complied in all respects with - 6 - the requirements of Crim.R. 11(C). D The fourth assignment of error complains the trial court imposed cruel and unusual punishment when it sentenced defendant to the maximum term of incarceration without having the benefit of a presentence report. R.C. 2925.03(C)(4)(c) creates a presumption that the offender receive a prison term for a third degree felony offense. Because this was a third degree felony drug offense, the trial court was required to consider R.C. 2929.13(C) when imposing sentence. R.C. 2929.13(C), in turn, directs the sentencing court to comply with the purposes and principles of sentencing under R.C. 2929.11 and 2929.12. Those purposes and principles are "to protect the public from future crime by the offender and others and to punish the offender." See R.C. 2929.11(A). During sentencing, the trial judge considered all the statutes, placing strong emphasis on defendant's prior record (three prior convictions in five years) and the fact the trafficking offense occurred on or near a school premises. Importantly, defendant withdrew his request for a presentence investigation report in order to expedite sentencing. Even without the presentence investigation report, the factors outlined by the trial judge amply justified the sentence imposed. - 7 - E The final assignment is that defendant was denied the effective assistance of counsel based upon the alleged errors raised in the previous assignments. The only new matter raised by this assignment is the argument that counsel failed to place on the record the conditions of the plea requiring defendant to testify truthfully in the related matter. The record shows the trial judge informed defendant that if he testified truthfully in the related matter, she might consider a one year reduction in sentence. Given defendant's serious past criminal history, the trial judge may not have desired to be any more specific under the circumstances, and we cannot say that counsel violated a specific duty to defendant by not extracting a more specific promise from the court. Considering the circumstances, we believe the trial judge made a rather generous offer to defendant. It is true that counsel continued to urge the court impose community controlled sanctions despite having withdrawn a request for a presentence investigation report. R.C. 2951.03(A)(1) expressly prohibits placement in a community controlled sanction until a presentence investigation report has been considered by the court. Nevertheless, we cannot say that counsel violated an essential duty to defendant by waiving the presentence investigation report. As noted above, defendant had a lengthy record. Counsel may well have desired the court expedite sentence - 8 - rather than receive a presentence investigation report detailing defendant's lengthy criminal history. This would be a matter of trial strategy which we cannot second guess. State v. Smith (1991), 75 Ohio App.3d 73, 76. In any event, counsel explained on the record that she discussed waiving the presentence investigation report with defendant and he affirmatively stated his desire to waive the report. Finally, we cannot say the record shows the waiver of the presentence investigation report prejudiced defendant. Given the fact that the trial court imposed the maximum sentence, we find it highly unlikely that the trial court would have placed defendant in a community controlled sanction had defense counsel requested the presentence investigation report. Most likely, a request for a presentence investigation report would have been futile. Accordingly, we find counsel's performance did not fall below an objective standard of reasonable behavior. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. The assigned errors are overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, JUDGE JAMES M. PORTER, PRESIDING JUDGE LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .