State v. Daniel , 2014 Ohio 5112 ( 2014 )

[Cite as State v. Daniel, 2014-Ohio-5112.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27390
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KENNETH M. DANIEL, II COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2013 12 3596
DECISION AND JOURNAL ENTRY
Dated: November 19, 2014
CARR, Presiding Judge.
{¶1} Appellant Kenneth Daniel, II, appeals his sentence imposed in the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} Daniel was indicted on one count of failure to comply with the order or signal of a
police officer, a felony of the third degree; and one count of receiving stolen property, a felony
of the fourth degree. He pleaded not guilty and reserved his right to later plead not guilty by
reason of insanity. The trial court ordered a competency evaluation. Upon consideration of the
results of the evaluation, the trial court found Daniel competent to stand trial. Thereafter,
pursuant to a plea agreement, Daniel pleaded guilty to both charges as alleged in the indictment.
The trial court referred the matter to the probation department for a presentence investigation and
report, and scheduled the matter for sentencing. Daniel was sentenced to eighteen months for the
third degree felony and fifteen months for the fourth degree felony, with the terms to be served
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consecutively for a total sentence of thirty-three months in prison. Daniel filed a timely appeal
and raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S SENTENCE IS CLEARLY AND CONVINCINGLY
CONTRARY TO LAW.
{¶3} Daniel argues that the trial court erred in its weighing of sentencing factors,
including the seriousness of the offenses, recidivism factors, and the purposes of criminal
sentencing.
{¶4} The transcript of the plea hearing indicates that the trial court relied on the
presentence investigation report, the substance of which the court found disturbing, when
sentencing Daniel to thirty-three months in prison. Daniel, however, has failed to provide this
Court with the presentence investigation report on appeal.
{¶5} The obligation to ensure that the record on appeal contains all matters necessary
to allow this Court to resolve the issues on appeal lies with the appellant. See App.R. 9. We
have consistently held that, where the appellant has failed to provide a complete record to
facilitate appellate review, this Court is compelled to presume regularity in the proceedings
below and affirm the trial court’s judgment. State v. McGowan, 9th Dist. Summit No. 27092,
2014-Ohio-2630, ¶ 6; see also State v. Taylor, 9th Dist. Lorain Nos. 13CA010366, 13CA010367,
13CA010368, 13CA010369, 2014-Ohio-2001, ¶ 6; State v. Jalwan, 9th Dist. Medina No.
09CA0065-M, 2010-Ohio-3001, ¶ 12. Consequently, where the substance of the presentence
investigation report is necessary to enable this Court to review the propriety of the sentence, the
appellant’s failure to ensure that the record includes the report will require a presumption of
regularity in the sentencing proceedings. McGowan at ¶ 6, citing Taylor at ¶ 6.
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{¶6} Here, the trial court expressly noted its reliance on the presentence investigation
report in imposing sentence. The court further noted that it found the substance of the report
disturbing. In the absence of the report from the record, this Court is compelled to presume
regularity in the trial court’s sentencing of Daniel. See McGowan at ¶ 7. Daniel’s assignment of
error is overruled.
III.
{¶7} Daniel’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
GREGORY A. PRICE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.