[Cite as State v. Burden, 2017-Ohio-4420.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28367
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE CURTIS BURDEN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015 12 3949(A)
DECISION AND JOURNAL ENTRY
Dated: June 21, 2017
TEODOSIO, Judge.
{¶1} Appellant, Curtis Burden, appeals from his sentence in the Summit County Court
of Common Pleas. We affirm.
I.
{¶2} Mr. Burden pled guilty in the Summit County Court of Common Pleas to
pandering obscenity involving a minor, a felony of the second degree, for viewing and
disseminating graphic child pornography online, including the sexual assault and torture of
children. He also created an online chat room to share these pictures and videos. The trial court
sentenced him to six years in prison.
{¶3} Mr. Burden now appeals from his sentence and raises two assignments of error for
this Court’s review. 2
II.
ASSIGNMENT OF ERROR ONE
THE SIX-YEAR PRISON TERM RENDERED BY THE TRIAL COURT IS CONTRARY TO LAW AND NOT SUPPORTED BY THE RECORD IN VIOLATION OF R.C. [2929.11] AND R.C. [2929.12]. []
{¶4} In his first assignment of error, Mr. Burden argues that his sentence is contrary to
law, not supported by the record, and must be vacated. We disagree.
{¶5} The Supreme Court of Ohio has held that “an appellate court may vacate or
modify a felony sentence on appeal only if it determines by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; R.C.
2953.08(G)(2). “Clear and convincing evidence is that measure or degree of proof which will
produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to
be established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954).
{¶6} Mr. Burden argues that the trial court only briefly mentioned weighing the
sentencing factors and seemed to indicate the sentence was based on an aggravating factor
making this the worst form of the offense. He also argues that the court did not mention any
other sentencing factors in R.C. 2929.11 or R.C. 2929.12, including mitigating factors that would
make the offense less serious, except for the fact that Mr. Burden had no prior criminal history.
{¶7} When a presentence investigation report is requested in a case, “there is a
presumption that the trial court utilized it in imposing a sentence.” State v. Cox, 9th Dist.
Summit No. 19773, 2000 WL 372317, *2 (Apr. 12, 2000). However, the presentence
investigation report and the psychosexual evaluation have not been included in the record for our
review. “It is the appellant’s responsibility to ensure that the record on appeal contains all 3
matters necessary to allow this Court to resolve the issues on appeal.” State v. Farnsworth, 9th
Dist. Medina No. 15CA0038-M, 2016-Ohio-7919, ¶ 16. “This Court has consistently held that,
where the appellant has failed to provide a complete record to facilitate appellate review, we are
compelled to presume regularity in the proceedings below and affirm the trial court’s judgment.”
Id. The presentence investigation report and the psychosexual evaluation are necessary to enable
this Court to properly review Mr. Burden’s sentence. Thus, in light of the absence of these
documents in the record before us, we must presume regularity in the proceedings below. See id.
{¶8} Mr. Burden’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN DENYING CURTIS BURDEN HIS RIGHT TO ALLOCUTE AT HIS SENTENCING HEARING IN VIOLATION OF OHIO RULES OF CRIMINAL PROCEDURE 32(A)(1). []
{¶9} In his second assignment of error, Mr. Burden argues that the trial court erred by
indicating that he was going to be sentenced to prison before asking if he wished to make a
statement on his own behalf. We disagree.
{¶10} Crim.R. 32(A)(1) states, in part, that “[a]t the time of imposing sentence, the court
shall * * * address the defendant personally and ask if he or she wishes to make a statement in
his or her own behalf or present any information in mitigation of punishment.” “The purpose of
allocution is to permit the defendant to speak on his own behalf or present any information in
mitigation of punishment.” State v. Reynolds, 80 Ohio St.3d 670, 684 (1998). “Trial courts must
painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution. A Crim.R. 32 inquiry is
much more than an empty ritual: it represents a defendant’s last opportunity to plead his case or
express remorse.” State v. Green, 90 Ohio St.3d 352, 359-360 (2000). “Both the Ohio Supreme
Court and this Court have recognized that a trial court complies with a defendant’s right of 4
allocution when it personally addresses the defendant and asks whether he has anything to say.”
State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 14.
{¶11} During Mr. Burden’s sentencing hearing, the trial court addressed some spectators
in the back of the courtroom as follows:
THE COURT: And with all due respect, just going to say - - I don’t know who you folks are in the back of the room. I don’t know what was going on in that house. I don’t know how it is a young man 19 years old is able to do anything for 20 hours a day. I don’t want to hear from you. I don’t know how a young 19- year-old guy is permitted to do anything for 20 hours a day, anything.
There were many - - and, you know, I see tears and I see sadness, and he is going away to prison. People are sad, and maybe we all should look into our own hearts and own mind[s], and [] think about what responsibility we all take for what is happening here today.
(Emphasis added.). In explaining the duties to register as a sex offender and briefly
summarizing post-release control to Mr. Burden, the trial court made several mentions of
“when you get out of prison” and how Mr. Burden could be sent “back” to prison.
{¶12} The court then personally addressed Mr. Burden and offered him the opportunity
to speak prior to sentencing:
THE COURT: So, Mr. Burden, what do you want to say?
THE DEFENDANT: I know what I did was wrong, and I’m hoping I get the help I need.
THE COURT: I just don’t know what help that would be. One thing about our prison system is we do not have significant programming inside the institutions for surely this kind of issue.
***
I don’t have any recognition about the profound nature of what it is you have done. Why don’t you think you can’t express that?
THE DEFENDANT: I don’t know. I just don’t - - honestly don’t know. I know there is something wrong with me. I just find a way to fix it. 5
The court also inquired into Mr. Burden’s ability to read and write before ultimately sentencing
him to six years in prison.
{¶13} We cannot conclude that the trial court’s comments regarding prison during the
sentencing hearing effectively denied Mr. Burden his right to allocution. A review of the record
shows that the trial court personally addressed Mr. Burden multiple times throughout the hearing
and gave him the opportunity to speak on his own behalf prior to imposing his sentence.
Moreover, a sentence is not finalized until the trial court files its sentencing entry and, up until
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[Cite as State v. Burden, 2017-Ohio-4420.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28367
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE CURTIS BURDEN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015 12 3949(A)
DECISION AND JOURNAL ENTRY
Dated: June 21, 2017
TEODOSIO, Judge.
{¶1} Appellant, Curtis Burden, appeals from his sentence in the Summit County Court
of Common Pleas. We affirm.
I.
{¶2} Mr. Burden pled guilty in the Summit County Court of Common Pleas to
pandering obscenity involving a minor, a felony of the second degree, for viewing and
disseminating graphic child pornography online, including the sexual assault and torture of
children. He also created an online chat room to share these pictures and videos. The trial court
sentenced him to six years in prison.
{¶3} Mr. Burden now appeals from his sentence and raises two assignments of error for
this Court’s review. 2
II.
ASSIGNMENT OF ERROR ONE
THE SIX-YEAR PRISON TERM RENDERED BY THE TRIAL COURT IS CONTRARY TO LAW AND NOT SUPPORTED BY THE RECORD IN VIOLATION OF R.C. [2929.11] AND R.C. [2929.12]. []
{¶4} In his first assignment of error, Mr. Burden argues that his sentence is contrary to
law, not supported by the record, and must be vacated. We disagree.
{¶5} The Supreme Court of Ohio has held that “an appellate court may vacate or
modify a felony sentence on appeal only if it determines by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; R.C.
2953.08(G)(2). “Clear and convincing evidence is that measure or degree of proof which will
produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to
be established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954).
{¶6} Mr. Burden argues that the trial court only briefly mentioned weighing the
sentencing factors and seemed to indicate the sentence was based on an aggravating factor
making this the worst form of the offense. He also argues that the court did not mention any
other sentencing factors in R.C. 2929.11 or R.C. 2929.12, including mitigating factors that would
make the offense less serious, except for the fact that Mr. Burden had no prior criminal history.
{¶7} When a presentence investigation report is requested in a case, “there is a
presumption that the trial court utilized it in imposing a sentence.” State v. Cox, 9th Dist.
Summit No. 19773, 2000 WL 372317, *2 (Apr. 12, 2000). However, the presentence
investigation report and the psychosexual evaluation have not been included in the record for our
review. “It is the appellant’s responsibility to ensure that the record on appeal contains all 3
matters necessary to allow this Court to resolve the issues on appeal.” State v. Farnsworth, 9th
Dist. Medina No. 15CA0038-M, 2016-Ohio-7919, ¶ 16. “This Court has consistently held that,
where the appellant has failed to provide a complete record to facilitate appellate review, we are
compelled to presume regularity in the proceedings below and affirm the trial court’s judgment.”
Id. The presentence investigation report and the psychosexual evaluation are necessary to enable
this Court to properly review Mr. Burden’s sentence. Thus, in light of the absence of these
documents in the record before us, we must presume regularity in the proceedings below. See id.
{¶8} Mr. Burden’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN DENYING CURTIS BURDEN HIS RIGHT TO ALLOCUTE AT HIS SENTENCING HEARING IN VIOLATION OF OHIO RULES OF CRIMINAL PROCEDURE 32(A)(1). []
{¶9} In his second assignment of error, Mr. Burden argues that the trial court erred by
indicating that he was going to be sentenced to prison before asking if he wished to make a
statement on his own behalf. We disagree.
{¶10} Crim.R. 32(A)(1) states, in part, that “[a]t the time of imposing sentence, the court
shall * * * address the defendant personally and ask if he or she wishes to make a statement in
his or her own behalf or present any information in mitigation of punishment.” “The purpose of
allocution is to permit the defendant to speak on his own behalf or present any information in
mitigation of punishment.” State v. Reynolds, 80 Ohio St.3d 670, 684 (1998). “Trial courts must
painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution. A Crim.R. 32 inquiry is
much more than an empty ritual: it represents a defendant’s last opportunity to plead his case or
express remorse.” State v. Green, 90 Ohio St.3d 352, 359-360 (2000). “Both the Ohio Supreme
Court and this Court have recognized that a trial court complies with a defendant’s right of 4
allocution when it personally addresses the defendant and asks whether he has anything to say.”
State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 14.
{¶11} During Mr. Burden’s sentencing hearing, the trial court addressed some spectators
in the back of the courtroom as follows:
THE COURT: And with all due respect, just going to say - - I don’t know who you folks are in the back of the room. I don’t know what was going on in that house. I don’t know how it is a young man 19 years old is able to do anything for 20 hours a day. I don’t want to hear from you. I don’t know how a young 19- year-old guy is permitted to do anything for 20 hours a day, anything.
There were many - - and, you know, I see tears and I see sadness, and he is going away to prison. People are sad, and maybe we all should look into our own hearts and own mind[s], and [] think about what responsibility we all take for what is happening here today.
(Emphasis added.). In explaining the duties to register as a sex offender and briefly
summarizing post-release control to Mr. Burden, the trial court made several mentions of
“when you get out of prison” and how Mr. Burden could be sent “back” to prison.
{¶12} The court then personally addressed Mr. Burden and offered him the opportunity
to speak prior to sentencing:
THE COURT: So, Mr. Burden, what do you want to say?
THE DEFENDANT: I know what I did was wrong, and I’m hoping I get the help I need.
THE COURT: I just don’t know what help that would be. One thing about our prison system is we do not have significant programming inside the institutions for surely this kind of issue.
***
I don’t have any recognition about the profound nature of what it is you have done. Why don’t you think you can’t express that?
THE DEFENDANT: I don’t know. I just don’t - - honestly don’t know. I know there is something wrong with me. I just find a way to fix it. 5
The court also inquired into Mr. Burden’s ability to read and write before ultimately sentencing
him to six years in prison.
{¶13} We cannot conclude that the trial court’s comments regarding prison during the
sentencing hearing effectively denied Mr. Burden his right to allocution. A review of the record
shows that the trial court personally addressed Mr. Burden multiple times throughout the hearing
and gave him the opportunity to speak on his own behalf prior to imposing his sentence.
Moreover, a sentence is not finalized until the trial court files its sentencing entry and, up until
that time, anything it says about what that sentence will be is tentative. See State v. Maynard,
9th Dist. Medina No. 07CA0116-M, 2009-Ohio-282, ¶ 45. It would be illogical to suggest that a
trial court is prohibited from beginning the process of deciding whether a sentence will include
incarceration until the very instant that it announces the sentence. See id.
{¶14} Because the trial court issued a personal invitation to Mr. Burden to speak before
imposing his sentence, we conclude that the court complied with Crim.R. 32(A)(1) and afforded
Mr. Burden his right to allocution. See State v. Clegg, 9th Dist. Medina No. 13CA0055-M,
2014-Ohio-1331, ¶ 6.
{¶15} Mr. Burden’s second assignment of error is overruled.
III.
{¶16} Mr. Burden’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal. 6
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO FOR THE COURT
SCHAFER, P. J. CARR, J. CONCUR.
APPEARANCES:
ASHLEY L. JONES Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.