State v. Bruce

2011 Ohio 2937

Opinion

[Cite as State v. Bruce, 2011-Ohio-2937.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96365

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LEO BRUCE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-520298

BEFORE: E. Gallagher, J., Boyle, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: June 16, 2011 FOR APPELLANT 2

Leo Bruce, pro se Inmate #582-993 Lorain Correctional Institution 2075 S. Avon-Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor By: Thorin O. Freeman Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} This case came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1.

{¶ 2} Defendant-appellant, Leo Bruce, appeals from the denial of his

motion to correct judgment, filed December 9, 2010, in the Cuyahoga County

Court of Common Pleas. Appellant argues that the trial court should have

granted his motion to correct judgment because the court erroneously

included a three-year gun specification in his conviction. For the following

reasons, we affirm the judgment of the trial court. 3

{¶ 3} Appellant was indicted on February 13, 2009 and charged with

aggravated robbery in violation of R.C. 2911.01(A)(1) (Count 1), robbery in

violation of R.C. 2911.02(A)(2) (Count 2), and three counts of kidnapping in

violation of R.C. 2905.01(A)(2) (Counts 3 through 5). Each count contained

both one- and three-year firearm specifications pursuant to R.C. 2941.141(A)

and R.C. 2941.145(A), respectively. Appellant initially pled not guilty to the

indictment.

{¶ 4} The record reflects that on March 3, 2010, defendant retracted

his former plea of not guilty and entered a plea of guilty to robbery in

violation of 2911.02(A)(2) with both one- and three-year firearm

specifications under R.C. 2941.141(A) and R.C. 2941.145(A) as charged in

Count 2 of the indictment. Counts 1, 3, 4, and 5 were nolled. Appellant

was sentenced on March 29, 2010 to a prison term of four years on the

robbery charge and three years on the firearm specifications. (The one- and

three-year firearm specifications merged for sentencing purposes.)

Appellant’s prison terms were to run consecutive to one another for an

aggregate prison term of seven years.

{¶ 5} In his sole assignment of error, appellant argues that the trial

court failed to remove the three-year firearm specification under R.C.

2941.145(A) and that he did not agree to plead guilty to this specification. 4

Additionally, appellant appears to imply that he pled guilty to R.C.

2911.02(A)(1) and that this statute is in some manner incompatible with a

R.C. 2941.145(A) firearm specification.

{¶ 6} However, in filing the instant appeal, appellant has failed to file

a transcript of either his plea or sentencing proceedings. “In the absence of

a record, the proceedings at trial are presumed correct.” State v. Brown

(1988), 38 Ohio St.3d 305, 528 N.E.2d 523. As the Ohio Supreme Court

stated in Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400

N.E.2d 384:

{¶ 7} “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. * * * When portions of

the transcript necessary for resolution of 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.”

{¶ 8} In the present instance, the appellant has not provided us with a

transcript of his plea proceedings to demonstrate any error in the trial

court’s entry of conviction. The trial court’s journal entries reflect that

appellant pled guilty to Count 2, which included both one- and three-year 5

firearm specifications, and charged appellant with robbery in violation of

R.C. 2911.02(A)(2), not 2911.02(A)(1). Accordingly, without any record to

review, we must presume regularity in the proceedings of the trial court and

summarily reject appellant’s assignment of error. See Rosca v.

Constantinescu, Cuyahoga App. No. 82493, 2004-Ohio-467.

{¶ 9} The judgment of the trial court is affirmed.

It is ordered that appellee recover of appellant 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

common pleas court 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.

EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and COLLEEN CONWAY COONEY, J., CONCUR