State v. Lipscomb

[Cite as State v. Lipscomb, 2013-Ohio-4474.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99533
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARIO LIPSCOMB
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-560883 and CR-564043
BEFORE: Jones, J., Stewart, A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: October 10, 2013
ATTORNEY FOR APPELLANT
Thomas A. Rein
The Leader Building
Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Milko Cecez
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Mario Lipscomb, appeals the 18-month prison sentence
imposed after he violated his probation in Cuyahoga C.P. No. CR-560883. We affirm.
{¶2} In May 2012, Lipscomb pleaded guilty to one count of domestic violence, in
CR-560883, a felony of the fourth degree. In June 2012, the trial court sentenced him to
12 months of community control sanctions and indicated that a violation of the sanctions
could result in the court imposing a sentence of 18 months in prison and a $5,000 fine.
{¶3} In September 2012, Lipscomb pleaded guilty to one count of theft and one
count of criminal damaging in Cuyahoga C.P. No. CR-564043. On October 18, 2012,
the trial court sentenced him to 12 months of community control sanctions, ordered him
to pay restitution in the amount of $390, and indicated that if he violated the conditions of
his sanctions he could be subject to a sentence of 12 months in prison for theft, 90 days in
jail for criminal damaging, and a fine totaling $3,250. The trial court also ordered
Lipscomb to complete an offender program at the local community-based correctional
facility.
{¶4} Also on October 18, 2012, the trial court issued a journal entry in which it
stated that it held a probation violation hearing in CR-560883 and found Lipscomb to be
in violation of his probation, but was continuing him on community control sanctions.
{¶5} On January 29, 2013, the trial court held a second probation violation
hearing, this time on both cases. The court determined that Lipscomb violated the
conditions of his probation as he had been released from the community-based
correctional facility without successfully completing the program. The trial court
imposed an aggregate sentence of 18 months in prison, including 18 months for the
domestic violence conviction in CR-560883.
{¶6} Lipscomb filed a timely notice of appeal, and raised the following
assignment of error for our review:
[I.] The trial court was without jurisdiction and abused its discretion and
violated Appellant’s constitutional and statutory rights when it sentenced
Appellant to prison although it never notified Appellant at the violation
hearing or in the journal entry.
{¶7} In his sole assignment of error, Lipscomb contends that the trial court was
without jurisdiction or authority to impose an 18-month prison sentence in CR-560883
because the trial court did not inform him at his October 18, 2012 violation hearing that
he could be imprisoned if he violated the terms of his community control sanctions.
{¶8} To support his argument, Lipscomb cites State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746, 814 N.E.2d 837, in which the Ohio Supreme Court held that
[p]ursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court sentencing
an offender to a community control sanction must, at the time of the
sentencing, notify the offender of the specific prison term that may be
imposed for a violation of the conditions of the sanction, as a prerequisite to
imposing a prison term on the offender for a subsequent violation.
Id. at paragraph one of the syllabus.
{¶9} In State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, the
court expanded upon Brooks, and held, pursuant to the same statutes, that
a trial court sentencing an offender upon a violation of the offender’s
community control sanction must, at the time of such sentencing, notify the
offender of the specific prison term that may be imposed for an additional
violation of the conditions of the sanction, as a prerequisite to imposing a
prison term on the offender for such a subsequent violation.
Fraley at ¶ 18. Thus, before a trial court sentences an offender to prison for a
subsequent violation of his or her community control sanctions, that offender must have
been notified at his or her violation hearing that said prison term could be imposed.
{¶10} As previously mentioned, Lipscomb claims the trial court failed to inform
him at the October 18, 2012 violation hearing in CR-560883 that he was subject to an
18-month prison sentence if he violated his sanctions; therefore, the trial court was
without the authority to impose the sentence at the January 29, 2013 violation hearing.
Lipscomb bases his argument on the October 18, 2012 journal entry, which did not state
that Lipscomb would be subject to imprisonment, let alone the specific sentence that
could be imposed, should he violate the terms of his community control sanctions.
{¶11} The state argues that the trial court retained the authority to impose the
sentence because Lipscomb was notified at his initial June 2012 sentencing hearing that if
he violated the conditions of his community control sanctions he could be subject to an
18-month prison sentence, and there is no evidence, other than the October 18, 2012
journal entry, that a probation violation hearing was actually held on that date.
Therefore, according to the state, although the trial court issued a journal entry stating it
held a hearing, it probably did not really hold a hearing and, therefore, the initial sentence
should control.
{¶12} We disagree with both parties’ arguments. The docket in CR-560883
indicates that the trial court held a probation violation hearing on October 18, 2012;
therefore, absent concrete evidence to the contrary, this court will presume that the trial
court held the hearing. If a court reporter was present for the hearing, the appellant has
the duty to file the transcript or such parts of the transcript that are necessary for this court
to evaluate the trial court’s decision.1 State v. Peterson, 8th Dist. Cuyahoga No. 96958,
2012-Ohio-87, ¶ 7; App.R. 9(B).
{¶13} If Lipscomb was unable to secure a transcript from the October 18, 2012
probation violation hearing in CR-560883, he could have prepared an App.R. 9(C)
statement of proceedings.2
{¶14} The failure to file the transcript or an App.R. 9(C) statement of the
proceedings prevents this court from reviewing Lipscomb’s argument that he was not
properly informed at his October 18, 2012 probation violation hearing of the possible
prison sentence if he violated the terms of his community control sanctions. See
Peterson at id. Consequently, absent certification of an adequate record, this reviewing
The record on appeal includes a transcript dated October 18, 2012, but the transcript is from
1
the sentencing hearing on CR-564043.
App.R. 9(C) provides, in part, that “[i]f no recording of the proceedings was made, if a
2
transcript is unavailable, or if a recording was made but is no longer available for transcription, the
appellant may prepare a statement of the evidence or proceedings from the best available means,
including the appellant’s recollection.” The statement is then served on the appellee for objections
or proposed amendments and then submitted to the trial court for settlement and approval. Id.Finally, the clerk of the trial court includes the statement in the record on appeal. Id.court presumes regularity of the proceedings and affirms the judgment of the trial court.
Id. at ¶ 8; see also In re B.B., 8th Dist. Cuyahoga No. 96262, 2011-Ohio-3265.
{¶15} The sole assignment of error is overruled. The case is remanded for
correction of the October 18, 2012 journal entry to indicate the specific prison sentence
the trial court imposed.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MELODY J. STEWART, A.J., and
EILEEN A. GALLAGHER, J., CONCUR