State v. Hendershot

2017 Ohio 7822

• Court: Ohio Court of Appeals
• Decided: September 21, 2017
• Docket: 16AP0011
• Status: Published

Opinion

[Cite as State v. Hendershot, 2017-Ohio-7822.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 16AP0011 : HEATH A. HENDERSHOT : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No. 13-CR- 0021

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 21, 2017

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

MARK J. HOWDYSHELL JOHN K. CHRISTIE MORGAN CO. PROSECUTOR P.O. Box 419 19 East Main St. 36 W. Main St. McConnelsville, OH 43756 McConnelsville, OH 45750 Morgan County, Case No. 16AP0011 2

Delaney, P.J.

{¶1} Appellant Heath A. Hendershot appeals from the October 27, 2016

Sentencing Entry of the Morgan County Court of Common Pleas. Appellee is the state

of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant’s criminal conviction is not

necessary to our resolution of this appeal.

{¶3} Appellant was charged by indictment with one count of aggravated burglary

with a firearm specification pursuant to R.C. 2911.11(A)(1) and (2), a felony of the first

degree [Count I]; one count of theft of a firearm pursuant to R.C. 2913.02(A)(1) and (B)(4),

a felony of the third degree [Count II]; and one count of having a weapon while under

disability pursuant to R.C. 2923.13(A)(3), a felony of the third degree [Count III].

{¶4} Appellant entered pleas of not guilty. He moved to suppress his statements

to law enforcement and the trial court overruled the motion following a hearing.

{¶5} On July 27, 2016, appellant appeared before the trial court and entered a

plea of guilty to Count I, aggravated burglary. In exchange for appellant’s guilty plea,

appellee dismissed Counts II and III and the firearm specification on Count I. The trial

court accepted appellant’s plea, found him guilty, and ordered a pre-sentence

investigation (P.S.I.).

{¶6} On October 18, 2016, appellant filed a Sentencing Memorandum noting he

was presently incarcerated at Noble Correctional Institution serving a 9-year prison term

imposed by the Muskingum County Court of Common Pleas on an unrelated case. Morgan County, Case No. 16AP0011 3

Appellant moved the court to impose any prison sentence in the instant case to be served

concurrently with the Muskingum County sentence.

{¶7} On October 27, 2016, appellant appeared before the trial court for

sentencing. The trial court imposed a prison term of 8 years, “to be served consecutive

to any other sentence imposed on [appellant].”

Note on the Appellate Record

{¶8} On November 23, 2016, simultaneous with the filing of the notice of appeal,

appellant filed a Motion for Preparation of Complete Transcript of Proceedings at State

Expense, and the trial court granted the motion one week later. On January 9, 2017, the

trial court entered a “Judgment Entry Extending Time to Transmit the Record” on the basis

of “* * * the temporary unavailability of the record because of recording equipment

malfunction * * *.”

{¶9} We noted the trial court could only grant an extension through February 11,

2017, and directed appellant to file a motion for extension of time to transmit the record

in this Court. Judgment Entry, January 23, 2017.

{¶10} Appellant duly filed a motion for extension of time to file the record, noting

“technical issues” arose with recording equipment from the trial court and the recordings

had not yet been provided for transcription. We granted an extension through March 27,

2017. On March 27, 2017, there appears a handwritten note in the appellate file stating

“Sent 3 disks to [court reporter] on 2-21-17. Assignment Commissioner was unable to

recover Sentencing Hearing.” Morgan County, Case No. 16AP0011 4

{¶11} The appellate record thus includes transcripts of the arraignment,

suppression hearing, and change-of-plea hearing, but not of the sentencing hearing on

October 27, 2016.

{¶12} Appellant now appeals from the trial court’s Sentencing Entry of October

27, 2016.

{¶13} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶14} “I. THE TRIAL COURT ERRED IN SENTENCING MR. HENDERSHOT TO

A PRISON TERM TO BE SERVED CONSECUTIVELY WITH ANY OTHER SENTENCE

IMPOSED ON HIM.”

ANALYSIS

{¶15} Appellant argues the trial court erred in imposing a prison term to be served

consecutive to any other sentence imposed upon appellant. We disagree.

{¶16} Appellant argues his prison term in the instant case should have been

imposed concurrent with any other term imposed upon him. In Ohio, concurrent

sentences are statutorily favored for most felony offenses. R.C. 2929.41(A). The trial court

may overcome this presumption by making the enumerated findings set forth in R.C.

2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659, ¶

23. The statute requires the trial court to undertake a three-part analysis. State v.

Alexander, 1st Dist. Hamilton Nos. C–110828 and C–110829, 2012–Ohio–3349, 2012

WL 3055158, ¶ 15. Morgan County, Case No. 16AP0011 5

{¶17} R.C. 2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the offender

to serve the prison terms consecutively if the court finds that the

consecutive service is necessary to protect the public from future

crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and

to the danger the offender poses to the public, and if the court also

finds any of the following:

(a) The offender committed one or more of the multiple

offenses while the offender was awaiting trial or sentencing, was

under a sanction imposed pursuant to section 2929.16, 2929.17, or

2929.18 of the Revised Code, or was under post-release control for

a prior offense.

(b) At least two of the multiple offenses were committed as

part of one or more courses of conduct, and the harm caused by two

or more of the multiple offenses so committed was so great or

unusual that no single prison term for any of the offenses committed

as part of any of the courses of conduct adequately reflects the

seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public from

future crime by the offender. Morgan County, Case No. 16AP0011 6

{¶18} In Bonnell, supra, 140 Ohio St.3d 209 at the syllabus, the Supreme Court

of Ohio found that to impose consecutive terms of imprisonment, the trial court is required

to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and to

incorporate its findings into its sentencing entry, but it has no obligation to state reasons

to support its findings.

{¶19} In this case, in the sentencing entry, the trial court found appellant’s history

of criminal conduct demonstrates consecutive sentences are necessary to protect the

public from future crime by the offender. R.C. 2929.14(C)(4)(c). The trial court made the

following relevant findings in the sentencing entry:

* * * *.

The Court finds the defendant’s history of criminal conduct is

such that it is necessary to impose consecutive sentences to protect

the public.

The Court finds a consecutive sentence is necessary to

protect the public and that a concurrent sentence would not

adequately reflect the seriousness of the offense and would be

demeaning to the purposes and principles of sentencing.

Sentencing Entry, 3.

{¶20} We are unable to determine, however, whether the trial court made the

requisite findings on the record at the sentencing hearing on October 27, 2016, because

the transcript of that hearing is not in the appellate record. Morgan County, Case No. 16AP0011 7

{¶21} In Ohio, the appellant has the duty to file the transcript or such parts of the

transcript that are necessary for evaluating the trial court's decision. See App.R. 9(B);

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). A party may remedy its

failure to file a transcript by filing a statement of the evidence with this court pursuant to

App.R. 9(C). Here, appellant failed to file either a transcript from the sentencing hearing

and/or a statement of the evidence pursuant to App.R. 9(C). Apparently a technical

problem arose with the recording of the sentencing hearing; upon learning the transcript

was unavailable, appellant had the opportunity to prepare an App. R. 9(C) statement.

See, State v. Yun, 5th Dist. Stark No. 2002CA00088, 2002-Ohio-4535, ¶ 9.

{¶22} Absent certification of an adequate record, a reviewing court presumes

regularity in the proceedings and must affirm the judgment of the trial court, unless the

assignment of error is based solely on a question of law. Because defendant has not

supported the alleged error with a transcript or any alternative form of the record permitted

by App.R. 9, we presume regularity in the trial court proceedings, and thus presume the

trial court made the requisite findings on the record at the sentencing hearing in imposing

a consecutive term. State v. Allen, 5th Dist. Stark No. 2015CA00060, 2015-Ohio-3221,

¶ 21; State v. Myers, 5th Dist. Richland No. 2003 CA 0062, 2004-Ohio-3715, ¶ 14.

{¶23} We are required to comply with App.R. 12; our determination must be made

on the merits of the assignments of errors set forth in the briefs required by App.R. 16

and from the record on appeal as provided by App.R. 9. In the absence of a record that

demonstrates the validity of the assignment of error, we must presume the regularity of

the proceedings. Morgan County, Case No. 16AP0011 8

{¶24} We conclude the trial court did not err in imposing the consecutive prison

term. Accordingly, appellant’s sole assignment of error is overruled.

CONCLUSION

{¶25} Appellant’s sole assignment of error is overruled and the judgment of the

Morgan County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Wise, Earle J concur

Hoffman, J. dissents Morgan County, Case No. 16AP0011 9

Hoffman, J., dissenting

{¶26} I respectfully dissent from the majority opinion.

{¶27} While I agree with the majority as to the status of the appellate record in this

case and further agree the presumption of regularity prohibits us from finding reversible

error as to any deficiency at the sentencing hearing, the transcript of the sentencing

hearing is not necessary for our review of the sentencing entry. Therefore the

presumption of regularity does not prohibit us from reviewing any error in it.

{¶28} Although the trial court made some of the required findings to support the

imposition of consecutive sentences in its judgment entry, it did not include a finding

“consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct” as required by R.C. 2929.14(C)(4).

{¶29} I recognize the trial court did find “a concurrent sentence would not

adequately reflect the seriousness of the offense”. Such language is found in R.C.

2929.14(C)(4)(b). The issue becomes is that finding sufficient to satisfy the requisite

finding regarding “disproportionality”.

{¶30} I think not. Though subtle, I find there is a difference between adequately

reflecting the seriousness of the offender’s conduct and the disproportionality of the

seriousness of the offender’s conduct. Apparently the legislature thought likewise or it

would have used the identical language in both sections of the statute. Therefore I would

sustain Appellant’s sole assignment of error and remand the matter to the trial court for

resentencing.