State v. Allen

[Cite as State v. Allen, 2015-Ohio-3221.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
MICHAEL ALLEN : Case No. 2015CA00060
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2012-CR-0259
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 10, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO MICHAEL ALLEN, pro se
Prosecuting Attorney Inmate No. 654-283
Richland Correctional Institution
By: KATHLEEN O. TATARSKY P.O. Box 8107
Assistant Prosecuting Attorney Mansfield, OH 44901
110 Central Plaza South –Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2015CA00060 2
Baldwin, J.
{¶1} Defendant-appellant Michael Allen appeals from the March 10, 2015
Judgment Entry of the Stark County Court of Common Pleas denying his Motion to
Vacate Void Sentence and Void Sentencing Journal Entry. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 9, 2012, a Bill of Information was filed alleging that appellant
had committed the offenses of tampering with evidence in violation of R.C.
2921.12(A)(1), a felony of the third degree, possession of cocaine in violation of R.C.
2925.11(A)(C)(4)(c), a felony of the third degree, and trafficking in marijuana in violation
of R.C. 2925.03(A)(2)(C)(3)(a), a felony of the fifth degree.
{¶3} On March 9, 2012, appellant entered a plea of guilty to the charges. As
memorialized in a Judgment Entry filed on April 3, 2012, appellant was sentenced to
five (5) years of community control under specified terms and conditions. The
Judgment Entry stated that “[v]iolation of any condition of this sentence shall lead to a
more restrictive sanction, a longer sanction, or a prison term of eighty-three (83)
months, consecutive with Stark County Common Pleas Case Number 2011CR1764”.
{¶4} On January 18, 2013, appellant’s Probation Officer filed a Motion to
Revoke Probation or Modify Former Order, alleging that appellant had violated specified
terms and conditions of his probation. After appellant admitted to the violations, his
community control sanctions were modified. Pursuant to a Judgment Entry filed on
March 26, 2013, appellant also was ordered to be evaluated by Stark Regional
Community Correction Center (SRCCC) and, if accepted, to successfully complete any
Stark County, Case No. 2015CA00060 3
program recommended and to successfully complete the HOPE Program. Appellant
was admitted to SRCCC.
{¶5} Thereafter, on January 21, 2014, appellant’s Probation Officer filed a
Motion to Revoke Probation or Modify Former Order, alleging again that appellant had
violated specified terms and conditions of his probation. Appellant stipulated that he
had violated the rules of probation and a prison sentence of seventy-two (72) months
was imposed. Appellant was sentenced to thirty-six (36) months on the charges of
tampering with evidence and possession of cocaine (Counts One and Two) and to
twelve (12) months of the charge of trafficking in marijuana (Count Three). The trial
court, in its June 9, 2014 Judgment Entry, stated, in relevant part, as follows: “IT IS
FURTHER ORDERED, ADJUDGED AND DECREED that this defendant shall serve
Counts One and Two consecutively, but concurrent with Count Three and Stark County
Common Pleas Case Number 2011CR1764, for a total sentence of seventy-two (72)
months,..”
{¶6} On June 24, 2014, the trial court filed a Nunc Pro Tunc Judgment Entry.
The Judgment Entry clarified that the charge of trafficking in marijuana was a felony of
the fifth degree rather than a felony of the third degree as indicated in the trial court’s
June 9, 2014 Judgment Entry and also changed the prison term for trafficking in
marijuana from twelve (12) months to eleven (11) months.
{¶7} Subsequently, on March 9, 2015, appellant filed a Motion to Vacate Void
Sentence and Void Sentencing Journal Entry. Appellant, in his motion, argued that the
trial court’s June 9, 2014 Judgment Entry was a Nunc Pro Tunc Entry “amending
Stark County, Case No. 2015CA00060 4
defendant’s sentence by determining the sentence to be served consecutively.”
According to appellant:
{¶8} “During the original imposition of community control, and during the
community control sanction violation sentencing, this Honorable Court did not order the
sentences consecutive. The sentences were ordered consecutive by way of Nunc Pro
Tunc journal entry. This Honorable Court erred in changing defendant’s sentence by
using a nunc pro tunc judgment entry.”
{¶9} Appellant argued that the June 9, 2014 Judgment Entry did not reflect his
original sentence. Appellant also argued that he received ineffective assistance of
counsel due to counsel’s failure to object to the original sentence and to the sentence
imposed during and after the community control violation sentencing hearing. The trial
court, as memorialized in a Judgment Entry filed on March 10, 2015, denied appellant’s
motion.
{¶10} Appellant now raises the following assignments of error on appeal:
{¶11} THE TRIAL COURT WAS WITHOUT JURISDICTION AND ABUSED ITS
DISCRETION AND VIOLATED APPELLANT’S CONSTITUTIONAL AND STATUTORY
RIGHTS WHEN IT MODIFIED THE ORIGINAL SENTENCE WITH AN IMPROPER
NUNC PRO TUNC ENTRY.
{¶12} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
ISSUED A NUNC PRO TUNC ENTRY IMPOSING CONSECUTIVE SENTENCES
WHEN CONSECUTIVE SENTENCES WERE NOT IMPOSED DURING THE
ORIGINAL SENTENCING OR DETERMINED DURING IMPOSITION OF COMMUNITY
CONTROL SANCTION VIOLATION SENTENCING HEARING.
Stark County, Case No. 2015CA00060 5
{¶13} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
I
{¶14} Appellant, in his first assignment of error, argues that the trial court erred
when it modified his original sentence with an improper Nunc Pro Tunc Entry.
{¶15} Appellant specifically argues that in his 2012 original sentencing entry, he
had a deferred prison term of eighty-three (83) months consecutive with another Stark
County case and that the trial court, in its June 9, 2014 Judgment Entry, which appellant
contends was a Nunc Pro Tunc Entry, the trial court improperly modified his original
sentence. Appellant contends that, in the 2012 Judgment Entry, “[c]onsecutive or
[c]oncurrent sentencing was not determined.”
{¶16} The trial court’s June 9, 2014 Judgment Entry, however, was not a Nunc
Pro Tunc Entry. Rather, the trial court, in the same, imposed the original sentence that
was deferred earlier in 2012. Appellant did not file a timely appeal from the June 9, 2014
Judgment Entry or any of his sentencing entries. As noted by appellee, any claims that
he makes as to defects in the same are now time barred.
{¶17} Moreover, appellant, in his brief, also argues that his offenses were allied
offenses. However, appellant has not provided this Court with any transcripts of any
hearings. The primary duty to provide a transcript for appellate review falls upon the
appellant, as the appellant bears the burden of showing prejudicial error by reference to
matters in the record. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400
N.E.2d 384 (1980). When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the appellate court has nothing to pass upon and,
thus, presumes the validity of the lower court's proceedings and affirms the trial court's
Stark County, Case No. 2015CA00060 6
decision. Knapp; State v. Thomas, 170 Ohio App. 3d 727, 2007–Ohio–1344, 868 N.E.2d
1061, ¶ 11.
{¶18} Appellant’s first assignment of error is, therefore, overruled.
II
{¶19} Appellant, in his second assignment of error, argues that the trial court
erred when, in its June 9, 2014, it imposed consecutive sentences when consecutive
sentences were not imposed during the original sentencing hearing in 2012.
{¶20} Appellant did not timely appeal his 2012 convictions and sentence and,
therefore, his appeal is barred. Moreover, while appellant maintains that the trial court’s
June 9, 2014 Entry did not reflect what occurred at the sentencing hearing, he has not
provided this Court with a transcript of the same. We must, pursuant to Knapp, supra,
therefore presume regularity and affirm.
{¶21} Appellant’s second assignment of error is, therefore, overruled.
III
{¶22} Appellant, in his third assignment of error, argues that his trial counsel was
ineffective in failing to object to consecutive sentences and allied offenses and in failing
to object to the issuing of the Nunc Pro Tunc Entry.
{¶23} Based on our disposition of appellant’s first and second assignments of
error, appellant’s third assignment of error is overruled.
{¶24} Appellant’s third assignment of error is, therefore, overruled.
Stark County, Case No. 2015CA00060 7
{¶25} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.