State v. Reynolds ( 2022 )

[Cite as State v. Reynolds, 2022-Ohio-4690.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-22-07
v.
JAMES ROBERT REYNOLDS, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2021 CR 00063
Judgment Affirmed
Date of Decision: December 27, 2022
APPEARANCES:
Timothy J. Hoover for Appellant
Todd C. Schroeder for Appellee
Case No. 12-22-07
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, James Robert Reynolds (“Reynolds”), appeals the
June 28, 2022 judgment of sentencing of the Putnam County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On September 22, 2021, the Putnam County Grand Jury indicted
Reynolds on three criminal charges including Count One for escape in violation of
R.C. 2921.34(A)(1), (C)(2)(b), a third-degree felony; Count Two for domestic
violence in violation of R.C. 2919.25(A), (D)(3), a fourth-degree felony; and Count
Three of vandalism in violation of R.C. 2909.05(B)(2), (E). On September 27,
2021, Reynolds appeared for arraignment and entered not-guilty pleas.
{¶3} However, on May 16, 2022, Reynolds entered guilty pleas under a
negotiated-plea agreement. The negotiated-plea agreement between Reynolds and
the State provided that, in exchange for Reynolds’s guilty pleas and his agreement
to pay $447.00 in restitution to the Fort Jennings Police Department, the State
agreed to amend Count One to attempted escape in violation of R.C. 2923.02(A)
and 2921.34(A)(1), a fourth-degree felony; to amend Count Two to domestic
violence in violation of R.C. 2919.25(A), a first-degree misdemeanor; and to
dismiss Count Three.1 Furthermore, the State agreed to defer to the trial court as to
the sentence and imposition of any judicial sanction for the post-release-control
1
At the time of his change-of-plea hearing, Reynolds was on post-release control in Paulding County and on
community control in Logan County.
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violation. The trial court conducted its Crim.R. 11 colloquy accepting Reynolds’s
guilty pleas, found him guilty, and ordered a presentence investigation.
{¶4} On June 27, 2022, the trial court sentenced Reynolds to a 17-month
definite prison term under Count One, and he was given 301 days jail-time credit.
Then, the trial court sentenced Reynolds to 180 days in jail under Count Two giving
him 180 days of jail-time credit, which resulted in time served. Next, the trial court
acknowledged that Reynolds was on post-release control in Paulding County in case
number CR18670 at the time he was convicted and sentenced under Count One, a
new felony. Thereafter, the trial court terminated Reynolds’s term of post-release
control under R.C. 2929.141 and imposed his remaining 398 days (of post-release
control) as a judicial sanction. The trial court then ordered the 17-month prison
term under Count One to be run consecutively to the 398 days imposed under post-
release control.
{¶5} Reynolds filed a timely notice of appeal and raises one assignment of
error for our review.
Assignment of Error
The trial court denied Appellant due process of law in imposing
the judicial sanction pursuant to Section 2929.141 of the Ohio
Revised Code.
{¶6} In his assignment of error, Reynolds argues the trial court denied him
due process of law by imposing a prison term for his violation of post-release
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control. In his brief, however, Reynolds challenges the trial court’s use of a letter,
from the Adult Parole Authority (“APA”), arguing that such letter is not contained
in the record, but was utilized by the trial court to calculate its judicial sanction
imposed pursuant to R.C. 2929.141.
Standard of Review
{¶7} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
“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. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶8} Notably, Reynolds did not raise an objection at his sentencing hearing
in the trial court on due-process grounds. Rather, in the trial court, Reynolds
asserted that he was entitled to an additional 80-day reduction in the judicial
sanction based upon a discrepancy between the trial court’s and his trial counsel’s
calculations. Thus, appellant’s failure to raise this issue in the trial court constitutes
a forfeiture of that issue absent plain error. See State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, ¶ 23.
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{¶9} Crim.R. 52(B) governs plain error in criminal cases. The Supreme
Court of Ohio has held that “‘the plain error rule is to be invoked only in exceptional
circumstances to avoid a miscarriage of justice.’” State v. Long, 53 Ohio St.2d 91,
95 (1978), quoting United States v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971),
citing Eaton v. United States, 398 F.2d 485, 486 (5th Cir.1968). Because Reynolds
did not object in the trial court on due-process grounds, we apply the plain-error rule
to the facts before us.
Analysis
{¶10} As an initial matter, we must address the State’s attachment of a
document captioned “Special Minutes - R/W/A/L PRC” as an appendix to its brief
offering an explanation for the disputed 80 days in the post-release-control
calculations.2 “To determine whether a trial court’s sentence is appropriate, an
appellate court’s review is limited to (1) the pre-sentence investigation report (PSI);
(2) the record from the trial court; and (3) any oral or written statements made to or
by the court at the sentencing hearing.” State v. Hale, 3d Dist. Marion No. 9-13-17,
2014-Ohio-262, ¶ 30 (Rogers, J. concurring in part and dissenting in part), citing
R.C. 2953.08(F) and State v. Tolliver, 9th Dist. Wayne No. 03CA0017, 2003-Ohio-
5050, ¶ 24. See also R.C. 2929.19(A). Significantly, the appendix of a brief is not
considered part of the record on appeal. See State v. Burgett, 3d Dist. Marion No.
2
It appears that Reynolds absconded post-release-control supervision for a period of 80 days, and thus, may
not have been entitled to credit for those days towards the judicial sanction under R.C. 2929.141(A).
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Case No. 12-22-07
9-10-37, 2010-Ohio-5945, ¶ 30; App.R. 9(A). Moreover “[i]t is well established, []
that ‘“‘[a] reviewing court cannot add matter to the record before it, which was not
a part of the trial court’s proceedings, and then decide the appeal on the basis of the
new matter.’”’” State ex rel. Municipal Construction Equipment Operators’ Labor
Council v. Cleveland, 162 Ohio St.3d 195, 2020-Ohio-3197, ¶ 19, quoting State ex
rel. Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662,
¶ 20, quoting State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728,
730 (1995), quoting State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of
the syllabus. Consequently, we cannot and will not consider the “Special Minutes
- R/W/A/L PRC” submitted by the appellee.
{¶11} We now turn to Reynolds’s argument that the trial court denied him
due process of law in imposing the judicial sanction under R.C. 2929.141. Even
though Reynolds’s assignment of error mentions due process, there is absolutely no
argument regarding due process in his brief. Put more plainly–Reynolds fails to
identify whether he is challenging substantive- or procedural-due process; fails to
set forth a standard of review; fails to discuss the law regarding due process; and
fails to argue facts and cases that support his due-process argument. Rather,
Reynolds challenges the trial court’s reference to Thomas Stafford’s (“Stafford”)
letter, Reynolds’s parole officer, at his sentencing hearing when conversing with
Reynolds’s trial counsel regarding the calculation of Reynolds’s maximum-prison
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term under R.C. 2929.141(A)(1). Reynolds asserts that the letter was outside the
record. As such, Reynolds is challenging the amount of post-release control
imposed as a judicial sanction.
{¶12} Importantly, App.R. 12(A)(1)(b) provides that we must “[d]etermine
[an] appeal on its merits on the assignments of error set forth in the briefs” under
App.R. 16. Consequently, App.R. 16(A)(7) obligates the appellant to include within
his or her brief “[a]n argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons in support
of the contentions, with citations to the authorities, statutes, and parts of the record
on which appellant relies.” Further, App.R. 12(A)(2) provides that we “may
disregard an assignment of error presented for review if the party raising it fails to
identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief, as required under App.R. 16(A).”
Because Reynolds set forth no argument regarding due process in this assignment
of error, we need not address whether he was denied due process. See State v. Baker,
12th Dist. Butler No. CA2021-10-133, 2022-Ohio-3271, ¶ 13-14; State v.
McClendon, 12th Dist. Fayette No. CA2021-09-021, 2022-Ohio-1441, ¶ 24; State
v. Constable, 12th Dist. Clermont No. CA2006-12-107, 2007-Ohio-6570, ¶ 5-8.
Moreover, since Reynolds failed to craft a plain-error argument, on appeal, we
decline to fashion one for him.
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Case No. 12-22-07
{¶13} Notwithstanding our conclusion, we acknowledge that the trial court
may have reviewed several letters at Reynolds’s sentencing hearing that were
outside of what would constitute the record (on appeal). Nevertheless, we
acknowledge that those letters were discussed by the trial court and Reynolds’s trial
counsel on the record, and in open court, even though none were admitted as
exhibits. See R.C. 2929.19(A), (B)(1)(a).
{¶14} Importantly, the trial court is permitted to consider any information
presented at the sentencing hearing by any person provided it is with the approval
of the trial court, and the offender is afforded the opportunity to address the trial
court, as Reynolds was in the instant case.3 See R.C. 2929.19(A), (B)(1)(a). See
also State v. Atha, 2d Dist. Clark No. 2022-CA-12, 2022-Ohio-3842, ¶ 18-23
(Welbaum, J., concurring separately); State v. Bilicic, 11th Dist. Ashtabula No.
2017-A-0066, 2018-Ohio-5377, ¶ 19-22; Hale, 2014-Ohio-262, at ¶ 30. Moreover,
pursuant to R.C. 2929.19(B)(1)(a), if the trial court approves and permits the
presentation of any such information, the trial court then must consider that
information, in addition to the presentence investigation (“PSI”), before imposing
3
Another aspect of R.C. 2929.19 was found unconstitutional on unrelated grounds by State v. Oliver, 12th
Dist. Clermont No. CA2020-07-041, 2021-Ohio-2543, ¶ 54, appeal not allowed, 165 Ohio St.3d 1504, 2022-
Ohio-85.
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sentence.4 See State v. Graham, 11th Dist. Portage No. 2021-P-0035, 2022-Ohio-
1140, ¶ 66, citing R.C. 2929.19(B)(1)(a).
{¶15} Ultimately, we are not able to reach a conclusion regarding the
propriety of the trial court’s calculation since appellant has failed to set forth such
assignments of error in his brief. See App.R. 12(A)(1)(b). Nevertheless, we are
able to conclude that the numerical figure regarding Reynolds’s remainder of post-
release control time (contained in the PSI) is consistent with the trial court’s
calculation.
{¶16} Accordingly, Reynolds’s sole assignment of error is overruled.
{¶17} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
4
In the PSI, the PSI writer noted that, at the time of sentencing, Reynolds had 398 days remaining on post-
release control. Indeed, the PSI is a part of the trial court’s record and the record on appeal.
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