State v. Hall

[Cite as State v. Hall, 2023-Ohio-1313.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 22AP0029
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LEE HALL COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2021 CRC-I 000463
DECISION AND JOURNAL ENTRY
Dated: April 24, 2023
STEVENSON, Judge.
{¶1} Appellant, Lee Hall, appeals from his sentence in the Wayne County Court of
Common Pleas. We affirm.
I.
{¶2} Mr. Hall was indicted on two counts of gross sexual imposition in violation of R.C.
2907.05(A)(4), a felony of the third degree. Count one pertained to the victim I.H., and count two
was regarding victim S.H. Initially, Mr. Hall pleaded not guilty. He later changed his plea to
guilty on an amended count one. The State dismissed count two.
{¶3} The court sentenced Mr. Hall to five years in prison, ordered him to register as a
Tier II sex offender, and advised him of his mandatory post-release control. The trial court denied
Mr. Hall’s request for a stay of the sentence.
{¶4} Mr. Hall timely appeals his sentence and raises one assignment of error for our
review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT, LEE HALL, BY SENTENCING HIM TO FIVE (5) YEARS [
] PRISON AS SAID SENTENCE IS EXCESSIVE AND CONSTITUTES AN
ABUSE OF DISCRETION BY THE COURT
{¶5} In his single assignment of error, Mr. Hall argues that his sentence is excessive,
contrary to law, and should be overturned. Specifically, he contends that the trial court did not
properly consider all the sentencing factors and guidelines under R.C. 2929.11 and 2929.12, and
that the overriding purpose of sentencing could have been achieved without imposing the
maximum term of incarceration. He requests that this Court remand his case for resentencing.
Because the record on appeal is incomplete, we must presume regularity and overrule Mr. Hall’s
assignment of error.
{¶6} The Supreme Court has held that “an appellate court may vacate or modify a felony
sentence on appeal 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; R.C. 2953.08(G)(2). “Clear
and convincing evidence is that measure or degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 477 (1954).
{¶7} “Trial courts have full discretion to impose a prison sentence within the statutory
range” and are not “required to make findings or give their reasons for imposing *** more than
minimum sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the
syllabus. “Nevertheless, ‘the court must carefully consider the statutes that apply to every felony
case[,]’ including ‘R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12,
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which provides guidance in considering factors relating to the seriousness of the offense and
recidivism of the offender.’” State v. Lucas, 9th Dist. Summit No. 29077, 2019-Ohio-2607, ¶ 13,
quoting State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38. “[W]here the trial court does
not put on the record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised
Code], it is presumed that the trial court gave proper consideration to those statutes.” State v. Steidl,
9th Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, ¶ 18, fn. 4. “Unless the record shows that [a] court failed to consider
the factors, or that the sentence is ‘strikingly inconsistent’ with the factors, the court is presumed
to have considered the statutory factors if the sentence is within the statutory range.” State v.
Fernandez, 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8, quoting State v. Boysel, 2d
Dist. Clark No. 2013-CA-78, 2014-Ohio-1272, ¶ 13, quoting State v. Rutherford, 2d Dist.
Champaign No. 08-CA-11, 2009-Ohio-2071, ¶ 34.
{¶8} Gross sexual imposition committed in violation of R.C. 2907.05(A)(4) is a felony
of the third degree. There is a presumption that a prison term would be imposed for a felony of
the third degree. R.C. 2907.05(C)(2). Mr. Hall’s sentence falls within the range of options for a
violation of R.C. 2907.05(A)(4). See R.C. 2929.14(A)(3)(a) (setting forth definite prison terms of
twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty four, or sixty months
for certain third degree felonies). As noted above, under Foster, sentencing within the range is
wholly at the discretion of the trial court. Foster at paragraph seven of the syllabus. Therefore,
Mr. Hall’s sentence is not contrary to law as it was squarely within the specified sentencing range.
{¶9} During the sentencing hearing, the trial court heard from the State, the victim’s
advocate, who read a statement on behalf of the victim’s mother, Mr. Hall’s counsel, and Mr. Hall
himself. The court was presented with information about the serious psychological harm suffered
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by I.H., who is Mr. Hall’s daughter, and the impact of Mr. Hall’s actions on the whole family that
required regular Children’s Services involvement. The State and Mr. Hall’s counsel made
numerous references to the contents of the presentence investigation report (“PSI”), specifically
as it pertained to Mr. Hall’s mental health, history of drug abuse, prior criminal record, and recent
efforts to rehabilitate himself through counseling. Both Mr. Hall and his counsel asked the court
for leniency, and that Mr. Hall be placed on community control with the opportunity to continue
counseling.
{¶10} In its sentencing entry, the trial court specifically stated that it “considered the
record, oral statements, any victim impact statement, the presentence report, the purposes and
principles of sentencing under R.C. 2929.11, the seriousness and recidivism factors relevant to the
offense and offender pursuant to R.C. 2929.12, and the need for deterrence, incapacitation,
rehabilitation and restitution.” The court’s oral statements indicated that it had reviewed the PSI,
noting particularly the seriousness of Mr. Hall’s issues and his pattern of blaming others rather
than taking personal responsibility for his behavior.
{¶11} As noted, the record clearly reflects that the trial court considered the PSI in
sentencing Mr. Hall. However, the PSI has not been included in the record for our review. “It is
the appellant’s responsibility to ensure that the record on appeal contains all matters necessary to
allow this Court to resolve the issues on appeal.” State v. Farnsworth, 9th Dist. Medina No.
15CA0038-M, 2016-Ohio-7919, ¶ 16. See also App.R. 9. This includes the PSI where
appropriate. State v. McLeod, 9th Dist. Summit No. 20757, 2002 WL 388909, *2 (Mar. 13, 2002).
“This Court has consistently held that, where the appellant has failed to provide a complete record
to facilitate appellate review, we are compelled to presume regularity in the proceedings below
and affirm the trial court’s judgment.” Farnsworth at ¶ 16.
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{¶12} Because the record before us does not contain the PSI necessary for appellate
review, we cannot properly review Mr. Hall’s sentence. See State v. Vasquez, 9th Dist. Summit
No. 29422, 2019-Ohio-5406, ¶ 8. “Without the context the PSI might provide, we cannot conclude
that there is clear and convincing evidence in the record the sentence is contrary to law.” (Internal
citations omitted.) State v. Elek, 9th Dist. Summit No. 20CA011611, 2023-Ohio-41, ¶ 37, citing
State v. Davis, 9th Dist. Summit No. 29824, 2021-Ohio-1796, ¶ 10. We must presume regularity
in the proceedings below and affirm. Accordingly, Mr. Hall’s assignment of error is overruled.
III.
{¶13} Mr. Hall’s assignment of error is overruled. The judgment of the Wayne 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 Wayne, 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.
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Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
SUTTON, P. J.
CARR, J.
CONCUR.
APPEARANCES:
KIMBERLY STOUT-SHERRER, Attorney at Law, for Appellant.
ANGELA WYPASEK, Prosecuting Attorney, for Appellee.