[Cite as State v. Hale,

.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 14-CA-00014 SHAWN M. HALE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Perry County Court of Common Pleas, Case No. 13-CR- 0049

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 7, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. FLAUTT TERRY RUGG Perry Prosecuting Attorney Barr, Jones & Associates, LLP 111 N. High Street 150 E. Mound Street, Ste. 200 New Lexington, OH 43764 Columbus, OH 43215 [Cite as State v. Hale,

.]

Gwin, P.J.

{¶1} Appellant Shawn M. Hale [“Hale”] appeals his conviction and sentence

after a negotiated guilty plea in the Perry County Court of Common Pleas for one count

of engaging in a Pattern of Corrupt Activity a felony of the first degree in violation of R.C.

Section 2923.32.

Facts and Procedural History

{¶2} Hale was indicted on three counts of Aggravated Trafficking in Drugs

felonies of the first degree in violation of R.C. 2925.03(A)(1) and R.C. 2925.03 (C)(1);

one count of Aggravated Trafficking a felony of the second degree in violation of R.C.

2925.03(A)(1) and R.C. 2925.03(C)(1)(c); one count Aggravated Trafficking in Drugs a

felony of the third degree in violation of R.C. 2925.03(A)(1) and R.C. 2925.03(C)(2)(e);

and one count of Engaging in a Pattern of Corrupt Activity a felony of the first degree in

violation of R.C. Section 2923.32.

{¶3} On November 6, 2013, Hale’s attorney requested a continuance of the

Status Conference/Plea scheduled for November 19, 2013 in order to review discovery.

The trial court granted the continence by Judgment Entry filed November 7, 2013,

rescheduling the matter to December 19, 2013.

{¶4} On December 19, 2013, Hale requested a continuance of the Status

Conference/Plea upon the grounds that he had just viewed discovery and counsel

needed additional time to discuss the plea offer with Hale.

{¶5} On December 23, 2013, Hale requested an identical continuance of the

December 19, 2013 Status Conference /Plea upon the grounds that he had just viewed

discovery and counsel needed additional time to discuss the plea offer with Hale. Perry County, Case No. 14-CA-00014 3

{¶6} On January 6, 2013, the trial court granted Hale’s requests for a

continuance and rescheduled the Status Conference/Plea for January 17, 2014.

{¶7} By entry filed January 17, 2014, the trial court rescheduled the Status

Conference/Plea to January 21, 2014.

{¶8} On January 21, 2014, Hale pled guilty to one count of Engaging in a

Pattern of Corrupt Activity. The state dismissed the remaining charges. The court

ordered a pre-sentence investigation report and deferred sentencing until February 25,

2014.

{¶9} On February 3, 2014, Hale requested a continuance because his attorney

was scheduled to be out of town on vacation on February 25, 2014. The trial court

granted the continuance by entry filed February 11, 2014 and rescheduled the

sentencing hearing for February 20, 2014.

{¶10} On February 20, 2014, the trial court conducted a sentencing hearing. By

this date, the pre-sentence investigation had been completed, filed and examined by the

court. The trial court judge imposed a definite prison term of five years in a state penal

institution. The judgment entry filed February 21, 2014 found that there were zero days

of jail credit and advised Hale that post release control for a period of five years is

mandatory in his case. The trial court’s judgment entry further informed Hale of the

consequences for violating the conditions of post release control, including but not

limited to re-imprisonment for up to one half of the originally stated prison term.

Assignments of Error

{¶11} Hale raises four assignments of error, Perry County, Case No. 14-CA-00014 4

{¶12} “I. DEFENDANT/APPELLANT RECEIVED INEFFECTIVE ASSISTANCE

OF COUNSEL WHEN HE WAS NOT AFFORDED THE OPPORTUNITY TO REVIEW

THE PRE-SENTENCE INVESTIGATION THAT WAS ORDERED BY THE COURT

PRIOR TO HIS SENTENCE, WHICH PREVENTED HIM FROM INFORMING HIS

COUNSEL AND THE COURT THAT THE PRE-SENTENCE INVESTIGATION

CONTAINED INCORRECT INFORMATION ABOUT APPELLANT.

{¶13} “II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

BECAUSE COURT APPOINTED COUNSEL TOLD APPELLANT THAT HIS CASE

HAD TO BE COMPLETED WITHIN SIX (6) MONTHS AND THAT A JURY TRIAL

WOULD NOT BE COMPLETED WITHIN THAT SIX (6) MONTH WINDOW OF TIME

AND A PLEA WAS THE ONLY POSSIBLE OUTCOME.

{¶14} “III. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL BECAUSE APPELLANT'S TRIAL COUNSEL DID NOT MAKE CLEAR TO

APPELLANT THAT WHEN, PRIOR TO HIS PLEA OF GUILTY, THE COURT ASKED

APPELLANT IF HE WAS UNDER THE INFLUENCE OF DRUGS OR ALCOHOL THAT

WOULD IMPAIR HIS ABILITY TO MAKE PROPER DECISIONS, THAT PRESCRIBED

MEDICATIONS WERE TO BE INCLUDED IN THAT CONSIDERATION.

{¶15} “IV. THE TRIAL COURT JUDGE ABUSED HER DISCRETION WHEN

IMPOSING SENTENCE UPON THE APPELLANT AND THE CASE SHOULD BE

REMANDED TO THE TRIAL COURT FOR A NEW SENTENCING HEARING.”

I, II, III

{¶16} Appellant’s first, second and third assignments of error raise common and

interrelated issues; therefore, we will address the arguments together. Perry County, Case No. 14-CA-00014 5

{¶17} In his first assignment of error, Hale argues he was not given an

opportunity to review the pre-sentence investigation report; in his second assignment of

error, Hale contends his attorney gave inaccurate advice; and in his third assignment of

error Hale argues that his attorney did not advise him he could speak prior to the

imposition of sentence.

{¶18} In support of his arguments, Hale refers to numerous statements and

circumstances that are not part of the record in this case. Hale’s arguments center

exclusively upon matters not contained in the trial court record. In State v. Hooks,

,

,

(2001), the Supreme Court noted, “a

reviewing court cannot add matter to the record before it that was not a part of the trial

court's proceedings, and then decide the appeal on the basis of the new matter. See,

State v. Ishmail,

,

(1978).” It is also a longstanding

rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of

Doty v. Doty, 4th Dist. Pickaway No. 411,

(Feb. 28, 1980), citing

Scioto Bank v. Columbus Union Stock Yards,

,

(10th Dist. 1963). New material and factual assertions contained in any brief in this

court may not be considered. See, North v. Beightler,

, 2006-Ohio-

6515,

, quoting Dzina v. Celebrezze,

, 2006-

Ohio-1195,

.

{¶19} Hale's new material may not be considered. Thus we cannot review Hale's

first, second and third assignments of error in this appeal1.

1 Hale may however, be able to assert this claim in a Petition for Post Conviction Relief under R.C. 2953.21. We express no opinion on the timeliness or the merits of such a filing. Perry County, Case No. 14-CA-00014 6

{¶20} Having reviewed the record that Hale cites in support of his claims that he

was denied effective assistance of counsel, we find Hale was not prejudiced by defense

counsel’s representation of him. The result of the proceedings were not unreliable nor

were the proceedings fundamentally unfair because of the performance of defense

counsel. Harrington v. Richter,

,

,

(2011).

{¶21} Hale’s first, second and third assignments of error are overruled.

IV.

{¶22} In his fourth assignment of error, Hale maintains that the imposed

sentence was an abuse of discretion.

{¶23} At the outset, we note there is no constitutional right to an appellate review

of a criminal sentence. Moffitt v. Ross,

, 610–11,

,

(1974); McKane v. Durston,

,

. 917(1894);

State v. Smith,

, 1997–Ohio–355,

(1997); State v.

Firouzmandi, 5th Dist No. 2006–CA–41, 2006–Ohio–5823,

. An

individual has no substantive right to a particular sentence within the range authorized

by statute. Gardner v. Florida,

,

, 1204–1205,

(1977); State v. Goggans, Fifth District Delaware No. 2006–CA–07–0051,

2007–Ohio–1433, ¶ 28. In other words “[t]he sentence being within the limits set by the

statute, its severity would not be grounds for relief here even on direct review of the

conviction ... It is not the duration or severity of this sentence that renders it

constitutionally invalid....” Townsend v. Burke,

,

,

(1948). Perry County, Case No. 14-CA-00014 7

{¶24} R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2)

states as follows:

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court’s standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (E)(4) of section

2929.14, or division (H) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶25} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford,

,

(1954), paragraph

three of the syllabus. The Eighth District stated in State v. Venes, 8th Dist. Cuyahoga

No. 98682, 2013–Ohio–1891,

It is important to understand that the “clear and convincing”

standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.

2953.08(G)(2) makes it clear that “(t)he appellate court’s standard for

review is not whether the sentencing court abused its discretion.” As a Perry County, Case No. 14-CA-00014 8

practical consideration, this means that appellate courts are prohibited

from substituting their judgment for that of the trial judge.

It is also important to understand that the clear and convincing

standard used by R.C. 2953.08(G)(2) is written in the negative. It does not

say that the trial judge must have clear and convincing evidence to

support its findings. Instead, it is the court of appeals that must clearly and

convincingly find that the record does not support the court’s findings. In

other words, the restriction is on the appellate court, not the trial judge.

This is an extremely deferential standard of review.

Venes, supra, at ¶ 20–21. Accord, State v. Lee, 10th Dist. Franklin No. CA2012–09–

182, 2013–Ohio–3404, ¶ 9; State v. Money, 12th Dist. Clermont No. CA2013–02–016,

2013–Ohio–4535, ¶ 8. See also, State v. Gooding, 5th Dist. Holmes No. 13CA006,

. We note that the Venes decision’s standard of review is limited to the

imposition of consecutive sentences. Venes, ¶10.

{¶26} In State v. Kalish,

, 2008–Ohio–4912,

,

the Ohio Supreme Court reviewed its decision in State v. Foster,

,

2006–Ohio–856,

as it relates to the remaining sentencing statutes and

appellate review of felony sentencing. See, State v. Snyder, 5th Dist. Licking No. 2008–

CA–25, 2080–Ohio–6709. In Kalish, the Court discussed the affect of the Foster

decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court

severed the judicial fact-finding portions of R.C. 2929.14, holding that “trial courts have

full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or Perry County, Case No. 14-CA-00014 9

more than the minimum sentences.” Kalish at ¶1 and 11,

, citing

, See also, State v. Payne,

, 2007–Ohio–4642,

; State v. Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.

Thus, a record after Foster may be silent as to the judicial findings

that appellate courts were originally meant to review under

2953.08(G)(2).”

. However, although Foster eliminated

mandatory judicial fact-finding, it left intact R.C. 2929.11 and 2929.12, and

the trial court must still consider these statutes.

Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised

judicial fact-finding portions of the sentencing scheme, an appellate court

remains precluded from using an abuse-of-discretion standard of review

when initially reviewing a defendant’s sentence. Instead, the appellate

court must ensure that the trial court has adhered to all applicable rules

and statutes in imposing the sentence. As a purely legal question, this is

subject to review only to determine whether it is clearly and convincingly

contrary to law, the standard found in R.C. 2953.08(G).

, see also State v. Mathis,

, 2006–Ohio–855,

; State v. Firouzmandi, supra at ¶ 29.

{¶27} Therefore, Kalish holds that, in reviewing felony sentences and applying

Foster to the remaining sentencing statutes, the appellate courts must use a two-step

approach. “First, they must examine the sentencing court’s compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the Perry County, Case No. 14-CA-00014 10

trial court’s decision in imposing the term of imprisonment shall be reviewed under an

abuse of discretion standard.”

, State v. Foster,

, 2006–

Ohio–856,

.

{¶28} The Supreme Court held, in Kalish, that the trial court’s sentencing

decision was not contrary to law. “The trial court expressly stated that it considered the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12.

Moreover, it properly applied post release control, and the sentence was within the

permissible range. Accordingly, the sentence is not clearly and convincingly contrary to

law.”

. The Court further held that the trial court “gave careful and

substantial deliberation to the relevant statutory considerations” and that there was

“nothing in the record to suggest that the court’s decision was unreasonable, arbitrary,

or unconscionable.” Kalish at ¶ 20

{¶29} In the case at bar, Hale was convicted of a felony of the first degree. For a

violation of a felony of the first degree, the potential sentence that a court can impose is

three, four, five, six, seven, eight, nine, ten or eleven years. R.C. 2929.14(A)(1). Hale

was sentenced to five years.

{¶30} Upon review, we find that the trial court’s sentencing on the charge

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. Furthermore, the record reflects the trial court considered

the purposes and principles of sentencing and the seriousness and recidivism factors as

required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised

appellant regarding post release control. See, Termination Judgment Entry, filed Perry County, Case No. 14-CA-00014 11

February 21, 2014. Therefore, the sentence is not clearly and convincingly contrary to

law.

{¶31} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard.

; State v.

Firouzmandi, supra at ¶40. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.

{¶32} Recently, in State v. Bonnell,

, 2014–Ohio–3177,

, syllabus, the Supreme Court of Ohio stated that:

In order to impose consecutive terms of imprisonment, a 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 its sentencing entry,

but it has no obligation to state reasons to support its findings.(Emphasis

added.)

{¶33} While the sentencing court is required to make these findings, it is not

required to give reasons explaining the findings. Id. at ¶27; Furthermore, the sentencing

court is not required to recite “a word-for-word recitation of the language of the statute.”

Bonnell at 29. “[A]s long as the reviewing court can discern that the trial court engaged

in the correct analysis and can determine that the record contains evidence to support

the findings, consecutive sentences should be upheld.” Id. A failure to make the findings

required by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law. Bonnell

at ¶ 34. The findings required by R.C. 2929.14(C)(4) must be made at the sentencing

hearing and included in the sentencing entry. Id. at the syllabus. Perry County, Case No. 14-CA-00014 12

{¶34} A sentencing court has broad discretion to determine the relative weight to

assign the factors in R.C. 2929.12. State v. Arnett,

,

(2000). In the case at bar, Hale was not sentenced to the maximum and did not

receive consecutive sentences.

{¶35} In support of his contention that the trial court’s sentence was an abuse of

discretion, Hale cites to matters not contained in the trial court record. As we previously

noted in our disposition of Hale’s first, second and third assignments of error, we are

precluded from considering matters outside the record. State v. Hooks,

,

,

(2001).

{¶36} In the case at bar, we are unable to review Hale’s January 17, 2014 court

hearing2, Hale’s January 21, 2014 change of plea hearing and Hale’s February 20, 2014

sentencing hearing because the transcript of those hearings was not filed with the trial

court or made a part of the record for purposes of appeal.3 Therefore, they do not

constitute part of the record on appeal. See App.R. 9(A).

When an appeal is filed in this court without a transcript, we

generally presume the regularity of that proceeding and affirm. Hoag,

,

,

, citing Christy v.

Summit Cty. Bd. of Elections (1996),

,

;

State ex rel. Duncan v. Portage Cty. Bd. of Elections,

,

,

, ¶ 17. Similarly, without the benefit of

2 The record does not reflect that a hearing in open court occurred on January 17, 2014, but see note 3. 3 Hale refers to a “January 25, 2014” hearing and a hearing “Merely four(4) days later”; however we are unable to find on the trial court’s docket a hearing on January 25, 2014, which was a Saturday, or a hearing on January 29, 2014. See, Appellant’s Brief at 6. The trial court’s Journal Entry filed January 29, 2014 states that Hale pled guilty on January 21, 2014. We will assume that Hale means to refer to a January 17, 2014 hearing and his change of plea on January 21, 2014. See, also note 2. Perry County, Case No. 14-CA-00014 13

the evidence that was before the court of appeals, this court “‘has nothing

to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court's proceedings, and

affirm.’” Crane v. Perry Cty. Bd. of Elections,

, 2005-

Ohio-6509,

, ¶ 37, quoting Knapp v. Edwards Laboratories

(1980),

,

,

.

State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs.,

, 2010-

Ohio-5073,

. Absent a complete transcript, we are unable to review the

facts underlying the trial court’s decision. Factual assertions appearing in a party's brief,

but not in any papers submitted for consideration to the trial court below, do not

constitute part of the official record on appeal, and an appellate court may not consider

these assertions when deciding the merits of the case. Akro-Plastics v. Drake Industries

,

(11th Dist. 1996).

{¶37} In Knapp v. Edwards Laboratories,

,

(1980), the Supreme Court of Ohio held the following,

The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of

showing error by reference to matters in the record. See State v. Skaggs

(1978),

. This principle is recognized in App.R. 9(B),

which provides, in part, that ‘ * * *the appellant shall in writing order from

the reporter a complete transcript or a transcript of such parts of the

proceedings not already on file as he deems necessary for inclusion in the

record.* * *.’ When portions of the transcript necessary for resolution of Perry County, Case No. 14-CA-00014 14

assigned errors are omitted from the record, the reviewing court has

nothing to pass upon and thus, as to those assigned errors, the court has

no choice but to presume the validity of the lower court's proceedings, and

affirm.” (Footnote omitted.)

,

.

{¶38} Without a complete record of the hearings in the trial court, we presume

that the omitted hearings support the trial court’s decision and that the trial court’s

sentencing on the charges complies with applicable rules and sentencing statutes. The

sentence was within the statutory sentencing range. In the case at bar, the trial court’s

February 21, 2014 sentencing entry states it has considered the factors set forth in R.C.

2929.12.

{¶39} We further note that in the case at bar, the court had the benefit of a pre-

sentence investigation report. We also note that we do not know the specific contents of

the pre-sentence investigation report as appellant did not make them a part of the

record. In State v. Untied, 5th Dist. Muskingum. No. CT97-0018,

(March 5, 1998), we addressed the issue of failure to include the pre-sentence

investigation report and stated:

Appellate review contemplates that the entire record be presented.

App. R. 9. When portions of the transcript necessary to resolve issues are

not part of the record, we must presume regularity in the trial court

proceedings and affirm. Knapp v. Edwards Laboratories (1980),

,

. The pre-sentence investigation report could

have been submitted “under seal” for our review. Perry County, Case No. 14-CA-00014 15

Without the cited information and given the trial court (sic) findings

on the record, we cannot say appellant’s sentence was against the

manifest weight of the evidence, or ‘contrary to law’.” Id. at 7. See also,

State v. Mills (September 25, 2003), 5th Dist. No. 03-COA-001 at

paragraph, 13-15.

Accord, State v. Slack, 5th Dist. Ashland No.

,

.

{¶40} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor. We find nothing in the record of Hale's case to suggest that his

sentence was based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment.

{¶41} Because the record before us is incomplete, this court must presume the

regularity of the trial court proceedings. Based upon the record before this Court, this

Court cannot find the trial court abused its discretion or violated Hale's constitutional

rights.

{¶42} Hale’s fourth assignment of error is overruled. Perry County, Case No. 14-CA-00014 16

{¶43} For the foregoing reasons, the judgment of the Court of Common Pleas,

Perry County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur