State v. Turner , 2011 Ohio 4522 ( 2011 )

[Cite as State v. Turner, 2011-Ohio-4522.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- :
:
TIMOTHY TURNER :
:
Defendant-Appellant :
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
Case No. 11-COA-006
OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No.
10CRB01153
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 1, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
W. DAVID MONTAGUE TIMOTHY TURNER, PRO SE
1213 East Main Street 1454 Galaxy Drive
Ashland, OH 44805 Mansfield, OH 44903
Farmer, J.
{¶1} On October 20, 2010, a complaint was filed against appellant, Timothy
Turner, alleging one count of menacing in violation of R.C. 2903.22 and one count of
disorderly conduct in violation of R.C. 2917.11. On October 22, 2010, appellant pled
not guilty.
{¶2} On January 11, 2011, the state filed an amended complaint, reducing the
menacing count to attempted menacing. On same date, appellant pled no contest to
the charges. The trial court found appellant guilty and ordered him to pay an aggregate
fine of $300.00 plus court costs. A final judgment order was filed on February 18, 2011.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR
PREJUDICIAL TO THE DEFENDANT-APPELLANT BY ASSUMING JURISDICTION
OVER A COMPLAINT WHICH WAS NOT PROPERLY EXECUTED."
II
{¶5} "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR
PREJUDICIAL TO THE DEFENDANT-APPELLANT BY ACCEPTING THE PLEA OF
NO-CONTEST WITHOUT THE DEFENDANT UNDERSTANDING THE CHARGES
AGAINST HIM."
III
{¶6} "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR
PREJUDICIAL TO THE DEFENDANT-APPELLANT BY ACCEPTING THE PLEA OF
NO-CONTEST WHEN THE AMENDED COMPLAINT WAS NOT FILED UNTIL AFTER
A FINAL JUDGMENT HAD BEEN RENDERED."
IV
{¶7} "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR
PREJUDICIAL TO THE DEFENDANT-APPELLANT BY CONVICTING HIM AND
SENTENCING HIM ON A NO-CONTEST PLEA SINCE THE STATEMENT AND
EXPLANATION OF FACTS AND CIRCUMSTANCES PRESENTED BY THE
PROSECUTION WERE INSUFFICIENT TO MEET ALL THE ELEMENTS OF THE
CHARGED CRIMES."
I, III
{¶8} Under these assignments of error, appellant challenges the trial court's
jurisdiction to accept his no contest plea to the reduced charge of attempted menacing.
Appellant claims the amended complaint was not filed prior to entering his plea and was
not properly executed. We disagree.
{¶9} Because a transcript was not filed, we are left to address these
jurisdictional challenges via the trial court's journalized entries. In a judgment order filed
February 18, 2011, the trial court memorialized the reduced charge as follows:
{¶10} "WHEREAS, on January 11, 2011, an amended complaint was filed by the
Assistant Law Director to amend the charge of Menacing to Attempted Menacing, and
the Defendant entered a plea of No Contest to the amended complaint."
{¶11} Upon review, we find this judgment order sufficiently established the trial
court's jurisdiction.
{¶12} Assignments of Error I and III are denied.
II, IV
{¶13} Under these assignments of error, appellant challenges the sufficiency of
the facts given his no contest plea, and the trial court's failure to determine that the plea
was knowingly and intelligently entered. Appellant claims he did not understand the
amended charge, and the facts presented by the prosecutor did not establish or support
a conviction. We disagree.
{¶14} As we noted in the previous assignments of error, a transcript was not
filed. In Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199, the Supreme
Court of Ohio held the following:
{¶15} "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), 53 Ohio St. 2d
162. 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 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.)
{¶16} The result of the failure to file a transcript is that we are left with the
presumption of regularity and the trial court's judgment order which included the
following statements:
{¶17} "WHEREAS, on January 11, 2011, the Defendant with counsel present
stated that he was freely and voluntarily withdrawing his plea of Not Guilty and entering
a plea of No Contest to the charge of Disorderly Conduct in violation of O.R.C.
2917.11A1.
{¶18} "Thereupon, the Court Granted permission to the Defendant to withdraw
his former plea of Not Guilty and accepted a plea of No Contest.
{¶19} "The Court made its FINDINGS, to wit:
{¶20} "Based on the facts stated in the complaint and on the State's explanation
of the circumstances existing at the time of the violation the Court found the Defendant
Guilty to the above aforesaid charge in violation of O.R.C. 2903.22A and Guilty to the
above aforesaid charge in violation of O.R.C. 2917.11A1. Counsel for Defendant
having been given an opportunity to speak on behalf of Defendant, and Defendant
having personally been given the opportunity to make a statement in his own behalf and
present information in mitigation and no good and sufficient cause being shown to
mitigate punishment and nothing said by Defendant as to why sentence should not be
imposed, SENTENCE AND JUDGMENT WAS PRONOUNCED AS FOLLOWS:
{¶21} "For the above state offense in violation of O.R.C. 2903.22A, the
Defendant was sentenced to pay a fine of $150.00 plus court costs.
{¶22} "For the above stated offense in violation of O.R.C. 2917.11A1, the
Defendant was sentenced to pay a fine of $150.00."
{¶23} Upon review, we find the trial court's judgment order established that
sufficient facts were presented and appellant's plea was knowingly and intelligently
entered into.
{¶24} Assignments of Error II and IV are denied.
{¶25} The judgment of the Municipal Court of Ashland County, Ohio is hereby
affirmed.
By Farmer, J.
Gwin, P.J. and
Edwards, J. concur.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Julie A. Edwards__________________
JUDGES
SGF/sg 0802
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TIMOTHY TURNER :
:
Defendant-Appellant : CASE NO. 11-COA-006
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Ashland County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Julie A. Edwards__________________
JUDGES