State v. Penick

2020 Ohio 6897

Opinion

[Cite as State v. Penick, 2020-Ohio-6897.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case Nos. 2020CA00092 & 2020CA00106 WAYNE A. PENICK

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case Nos. 2020-CR- 0451(B) & 2020-CR-405

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 22, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO WAYNE A. PENICK Prosecuting Attorney Inmate No. A772-868 Stark County, Ohio Belmont Correctional Institution P.O. Box 540 KRISTINE W. BEARD St. Clairsville, Ohio 43950 Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite #510 Canton, Ohio 44702-1413 Stark County, Case Nos. 2020CA00092 & 2020CA00106 2

Hoffman, P.J. {¶1} Defendant-appellant Wayne A. Penick appeals the May 14, 2020 Entry

entered by the Stark County Court of Common Pleas, convicting and sentencing him on

one count of failure to comply with an order or signal of a police officer, in violation of R.C.

2921.331(B)(C)(5)(a)(ii), a felony of the third degree; and one count of aggravated

possession of drugs, in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree,

emanating from trial court case numbers 2020CR0451(B) and 2020CR0405. The state of

Ohio is plaintiff-appellee.

{¶2} We begin by noting Appellant’s brief does not comply with App.R. 16 in

numerous ways. Such noncompliance is sufficient grounds to dismiss his appeal.

Nevertheless, we elect to briefly address the arguments he raises therein.

STATEMENT OF THE CASE1

{¶3} On May 1, 2020, Appellant appeared before the trial court represented by

counsel and changed his plea to guilty to the two aforementioned charges. The trial court

sentenced him to nine months in prison on the failure to comply charge and six months

in prison on the drug charge. The trial court journalized its decision via Entry filed May

14, 2020. It is from that entry Appellant prosecutes this appeal.

{¶4} Appellant has not separately listed his assigned error(s), but makes a

number of arguments bracketed in his purported brief with four numbered sections. We

will attempt to summarize them as follows:

1 A rendition of the underlying facts forming the basis of the charges is unnecessary for our resolution of this appeal. Stark County, Case Nos. 2020CA00092 & 2020CA00106 3

1) invalid plea as a result of the trial court’s failure to substantially

comply with Crim.R. 11;

2) failure of the trial court to consider the factors set forth in R.C.

2929.12 and 2929.13;

3) error by the trial court in imposing consecutive sentences; and

4) ineffective assistance of counsel.

{¶5} We begin by noting Appellant has failed to provide this Court with a

transcript of the May 1, 2020 Change of Plea and Sentencing Hearing. When portions of

the transcript necessary for resolution of the assigned error(s) are omitted from the

record, the court has no choice but to presume the validity of the lower court’s

proceedings, and to affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980).

We find this presumption of regularity applies to Appellant’s argument raised in his first

and second numbered brackets in his brief. We additionally note the trial court

specifically considered R.C. 2929.11 and 2929.12 in its entry sentencing Appellant and

also specifically referenced R.C. 2929.13 therein.

{¶6} In Appellant’s argument raised in bracket three of his brief, Appellant

challenges the imposition of consecutive sentences. However, as noted in the trial court’s

sentencing entry, consecutive sentences were jointly recommended by Appellant and

Appellee under R.C. 2953.08(D). Pursuant to State v. Sergent, 148 Ohio St.3d 94 (2016),

jointly recommended sentences where the trial judge fails to make the consecutive-

sentence findings are, nevertheless, authorized by law; therefore, are not appealable. Stark County, Case Nos. 2020CA00092 & 2020CA00106 4

{¶7} Finally, with respect to Appellant’s argument he was denied the effective

assistance of counsel, we find his claims are not supported by anything in the record as

it existed on the date of the judgment under appeal.

{¶8} For the foregoing reasons, we overrule all four of Appellant’s arguments and

affirm the judgment of the trial court.

By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur