State v. Hogya , 2023 Ohio 342 ( 2023 )

[Cite as State v. Hogya, 2023-Ohio-342.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NOS. 2022-L-058
CITY OF MENTOR-ON-THE-LAKE, 2022-L-059
Plaintiff-Appellee, Criminal Appeals from the
Mentor Municipal Court
- vs -
HOPE CRYSTAL HOGYA, Trial Court Nos. 2021 CRB 01251 A
2021 CRB 01251 B
Defendant-Appellant.
OPINION
Decided: February 6, 2023
Judgment: Affirmed
Joseph M. Gurley, Mentor-On-The-Lake Prosecutor, 240 East Main Street, Painesville,
OH 44077 (For Plaintiff-Appellee).
Eric D. Hall, P.O. Box 232, Medina, OH 44258 (For Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Hope Hogya, appeals from the Mentor Municipal Court arguing
that the trial court failed to consider the purposes and principles of misdemeanor
sentencing. We affirm.
{¶2} Appellant was charged with one count of Violating a Protection Order, a
misdemeanor of the first degree, in violation of R.C. 2919.27(A)(1).
{¶3} On September 15, 2021, appellant pled guilty to Violating a Protection
Order. On February 9, 2022, appellant was sentenced to 180 days in jail with credit for
six days served and two-years’ probation. Appellant moved the court to modify her
sentence. The trial court granted that motion and released appellant to the New
Beginnings Residential Treatment Facility on March 9, 2022.
{¶4} Appellant did not comply with the terms of her probation and was charged
with a probation violation. On May 25, 2022, the trial court sentenced appellant to 146
days in jail – the remainder of her jail sentence. In addition, the court sentenced appellant
to a 30-day jail term on a contempt of court charge with 24 days suspended and jail time
credit for six days served.
{¶5} Appellant filed a pro se notice of appeal on both the Contempt and Violating
a Protection Order convictions. Appellate counsel was appointed to represent her.
Assignment of Error and Analysis
{¶6} Appellant’s sole assignment of error states:
{¶7} “THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
WITHOUT CONSIDERING THE PURPOSES AND PRINCIPALS [sic] OF
MISDEMEANOR SENTNENCING CONTAINED IN R.C. 292921 [sic] AND THE
FACOTRS LISTED IN 2929.22.”
{¶8} No transcript was filed in this matter. Therefore, this Court’s review of
appellant’s sentence is entirely based upon the trial court’s sentencing entries.
{¶9} It is incumbent upon the appellant “to ensure that the record or whatever
parts thereof are necessary for the determination of the appeal are filed with the appellate
court.” Aurora v. Belinger, 11th Dist. Nos. 2007-P-0041, 2007-P-0042, 180 Ohio App.3d
178, 2008-Ohio-6772, 904 N.E.2d 916, ¶ 30. “The duty to provide a transcript for appellate
reviews falls upon the appellant because [the appellant] has the burden of showing error
by reference to the record.” Id. at ¶ 31, citing Knapp v. Edwards Laboratories, 61 Ohio
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Case Nos. 2022-L-058, 2022-L-059
St.2d 197, 199, 400 N.E.2d 384 (1980). “If the appellant intends to urge on appeal that a
finding or conclusion is unsupported by the evidence or is contrary to the weight of the
evidence, the appellant shall include in the record a transcript of all evidence relevant to
the findings or conclusion.” App.R. 9(B)(4). Where a transcript is unavailable, the
appellant is still obligated to provide a complete record pursuant to App.R. 9(C), (D), or
(E). Belinger, at ¶ 31.
{¶10} “Where portions of the transcript necessary for the resolution of assigned
errors are omitted from the record, an appellate court has nothing to pass upon.” Warren
v. Clay, 11th Dist. Trumbull No. 2003-T-0134, 2004-Ohio-4386, ¶ 7. In such cases, a
reviewing court “has no choice but to presume the validity of the lower court’s
proceedings.” Id.{¶11} Appellant argues that the trial court failed to consider or reference the
purposes and principles of misdemeanor sentencing set forth in R.C. 2929.21(A) and the
misdemeanor sentencing factors set forth in R.C. 2929.22(B).
{¶12} R.C. 2929.21(A) provides that a court imposing a misdemeanor sentence
“shall be guided by the overriding purposes of misdemeanor sentencing * * * to protect
the public from future crime by the offender and others and to punish the offender.” The
sentencing court “shall consider the impact of the offense upon the victim and the need
for changing the offender's behavior, rehabilitating the offender, and making restitution to
the victim of the offense, the public, or the victim and the public.” R.C. 2929.21(A).
{¶13} R.C. 2929.22(B) provides:
(B)(1) In determining the appropriate sentence for a misdemeanor,
the court shall consider all of the following factors:
(a) The nature and circumstances of the offense or offenses;
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Case Nos. 2022-L-058, 2022-L-059
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of
persistent criminal activity and that the offender's character and
condition reveal a substantial risk that the offender will commit
another offense;
(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender's history, character,
and condition reveal a substantial risk that the offender will be a
danger to others and that the offender's conduct has been
characterized by a pattern of repetitive, compulsive, or aggressive
behavior with heedless indifference to the consequences;
(d) Whether the victim's youth, age, disability, or other factor made
the victim particularly vulnerable to the offense or made the impact
of the offense more serious;
(e) Whether the offender is likely to commit future crimes in general,
in addition to the circumstances described in divisions (B)(1)(b) and
(c) of this section;
(f) Whether the offender has an emotional, mental, or physical
condition that is traceable to the offender's service in the armed
forces of the United States and that was a contributing factor in the
offender's commission of the offense or offenses;
(g) The offender's military service record.
(2) In determining the appropriate sentence for a misdemeanor, in
addition to complying with division (B)(1) of this section, the court
may consider any other factors that are relevant to achieving the
purposes and principles of sentencing set forth in section 2929.21 of
the Revised Code.
{¶14} Misdemeanor sentencing lies within the discretion of the trial court and will
not be disturbed absent an abuse of discretion. City of Conneaut v. Peaspanen, 11th Dist.
Ashtabula No. 2004-A-0053, 2005-Ohio-4658, ¶ 18, citing State v. Wagner, 80 Ohio
App.3d 88, 95-96, 608 N.E.2d 852 (12th Dist.1992). “‘The term “abuse of discretion” is
one of art, connoting judgment exercised by a court which neither comports with reason,
nor the record.’ State v. Underwood, 11th 12 Case No. 2022-A-0040 Dist. Lake No. 2008-
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Case Nos. 2022-L-058, 2022-L-059
L-113, 2009-Ohio-208 [2009 WL 1177050], ¶ 30, citing State v. Ferranto, 112 Ohio St.
667, 676-678 [148 N.E. 362] (1925).” State v. Raia, 11th Dist. Portage No. 2013-P-0020,
2014-Ohio-2707, ¶ 9. Stated differently, an abuse of discretion is “the trial court’s ‘failure
to exercise sound, reasonable, and legal decision-making.’” Id., quoting State v. Beechler,
2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11
(8th Ed.Rev.2004).
{¶15} “In fashioning an appropriate sentence in a misdemeanor case, the trial
court must consider the factors set forth under R.C. 2929.22.” State v. Anthony, 2019-
Ohio-5410, 151 N.E.3d 13, ¶ 181 (11th Dist.), citing Conneaut v. Coleman, 11th Dist.
Ashtabula No. 2010-A-0062, 2011-Ohio-5099, ¶ 22. A failure to consider those factors
amounts to an abuse of discretion. Id., citing State v. Rogers, 11th Dist. Trumbull Nos.
2009-T-0051, 2010-Ohio-197, ¶ 11.
{¶16} Absent a failure to consider the R.C. 2929.22 factors, “if the sentence lies
within the statutory limit, a reviewing court will presume that the trial judge followed the
standards required by the statute.” Id., citing State v. Peppeard, 11th Dist. Portage No.
2008-P-0058, 2009-Ohio-1648, ¶ 75. There is no requirement for the trial court to state it
considered the misdemeanor sentencing factors on the record. Id., citing State v. Kish,
11th Dist. Lake No. 2010-L-138, 2010-Ohio-4172, ¶ 8. “Appellant's argument the court
disregarded the sentencing factors can be overruled if ‘[t]here is nothing in the transcript
of the sentencing hearing or the sentencing entry that affirmatively shows that the trial
court did not consider the appropriate factors in R.C. 2929.22.’” State v. Burley, 2017-
Ohio-378, 83 N.E.3d 322, ¶ 17, (7th Dist.) quoting State v. Williams, 4th Dist. Jackson
No. 15CA3, 2016-Ohio-73, ¶ 25.
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{¶17} In this case, appellant claims that the trial court failed to reference the
factors set forth in R.C. 2929.22. However, there is no requirement that the trial court
state it considered the misdemeanor sentencing factors on the record. Anthony, supra,
¶ 181. Appellant’s sentence lies within the statutory limits, and nothing in the sentencing
entries available for review “‘affirmatively shows that the trial court did not consider the
appropriate factors in R.C. 2929.22.’” Burley, 2017-Ohio-378, at ¶ 17, quoting Williams,
2016-Ohio-73, at ¶ 25. Finally, without a transcript to review, we must presume the
regularity of the proceedings below and affirm. See Clay, 2004-Ohio-4386, at ¶ 7.
{¶18} Accordingly, appellant’s sole assignment of error is without merit.
{¶19} The judgment of the Mentor Municipal Court is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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