Mentor v. MolkMentor v. Molk
Mathew S. Molk, pro se, 7386 Parker Drive, Mentor, OH 44060 (Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, Matthew S. Molk, appeals from the judgment of the Mentor Municipal Court, finding him guilty of Operation While Under the Influence,
{¶3} On March 12, 2010, Mr. Molk was charged with one count of OVI (
{¶4} Mr. Molk filed a timely notice of appeal with this court and submitted his brief pro se, raising three (3) assignments of error:
{¶5} “[1.] The trial court erred in that it did not specify a specific statute that it found the appellant guilty of in it‘s [sic] judgment entry and final appeasable [sic] order.
{¶7} “[3.] The pro se appellant lacked sufficient financial poweress [sic] to employ a competent attorney and maintains that he was not afforded adequate legal representation.”
{¶8} Procedural Deficiencies
{¶9} At the outset, Mr. Molk‘s brief does not comply with
{¶10} Further, it is incumbent upon the appellant to assure that the appellate court has before it the trial court‘s record, which includes the original papers and exhibits filed in the case, the transcript of the proceedings and a certified copy of the docket and journal entries. See
{¶12} “At the time of filing the notice of appeal the appellant, in writing, shall order from the reporter a complete transcript or a transcript of the parts of the proceedings not already on file as the appellant considers necessary for inclusion in the record and file a copy of the order with the clerk.” Where a transcript necessary for the resolution of assigned errors is omitted from the record, an appellate court has nothing to pass upon. Clay at ¶7.
{¶13} A statement of evidence is permissible under
{¶14} “[A]n appellant ‘bears the burden of affirmatively demonstrating error on appeal.‘” Village of S. Russell v. Upchurch, 11th Dist. Nos. 2001-G-2395 and 2001-G-2396, 2003-Ohio-2099, ¶10, quoting Concord Twp. Trustees v. Hazelwood Builders
{¶15} The Sentencing Entry
{¶16} Through his first assignment of error, Mr. Molk argues that the appealed judgment entry failed to specify the section of the Ohio Revised Code under which he was charged and convicted. Mr. Molk points out that the trial court simply wrote the word “OVI” to indicate the charge to which he pleaded “no contest” and was found guilty. This court is not clear from Mr. Molk‘s brief just what error he alleges has occurred. For the purposes of considering Mr. Molk‘s appeal, we have construed his first assignment of error as asserting a procedural defect in the trial court‘s judgment entry in that the specific code section number for that OVI offense was not indicated.
{¶17} “In entering a final appealable order in a criminal case, the trial court must comply with
{¶18} Mr. Molk appears to argue that the trial court failed to comply with
{¶19} The assertion that Mr. Molk did not know the crime for which he was found guilty is not well taken. From the scant evidence we do have in the trial court file, we have no doubt that Mr. Molk was made aware of the charges against him and the corresponding Ohio Revised Code sections. The initial citation indicates the charges and code sections, as do all subsequent motions and notices contained within the court file. These documents were presumably delivered to Mr. Molk or shared with him by his court-appointed attorney.
{¶20} No evidence is before us to suggest that the trial court failed to comply with the requirements of
{¶21} Sentence Based On Past Convictions
{¶22} In his second assignment of error, Mr. Molk argues that he was improperly sentenced as a repeat offender.
{¶23} Pursuant to State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, to the existing statutes,
{¶24} The first prong of the analysis instructs that “the appellate court must ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in
{¶25} If the first prong is satisfied, that is, the sentence is not “clearly and convincingly contrary to law,” the appellate court must then engage in the second prong of the analysis, which requires an appellate court to determine whether the trial court abused its discretion in selecting a sentence within the permissible statutory range. Id. at ¶17.
{¶26} Sentencing for a conviction of OVI is regulated by
{¶27} Sentencing an individual as a repeat offender under
{¶28} Because no statute specifically sets forth the procedural requirements for OVI sentencing, apart from the statutorily mandated sentences, a trial court has broad discretion to receive and consider evidence regarding sentencing. Id. In the absence of a challenge by the defendant as to the admission of prior convictions for sentencing purposes, a court may rely on such evidence as it deems sufficient. City of Columbus v. Malinchak (Mar. 29, 1988), 10th Dist. Nos. 87AP-1038, 87AP-1039 and 87AP-1040, 1988 Ohio App. LEXIS 1204. See also, State v. Smith (Sept. 24, 1990), 12th Dist. No. CA89-12-105, 1990 Ohio App. LEXIS 4150 (relying on a face sheet with judge‘s signature); State v. Perkins (June 22, 1998), 12th Dist. No. CA97-10-047, 1998 Ohio App. LEXIS 2785 (relying on certified copies of documents resembling docket sheets
{¶29} Mr. Molk has failed to provide us with a transcript of the plea and sentencing proceedings, or a statement of facts in lieu of transcript. The trial court made a specific finding in its sentencing entry that “[t]his is the defendant‘s 3rd conviction of DUI in the last 6 years.” We therefore presume regularity of the proceedings, that the trial court complied with all rules and statutes, and that sufficient evidence of Mr. Molk‘s prior convictions were presented to the trial court.
{¶30} We have no evidence before us to suggest that Mr. Molk‘s sentence is clearly and convincingly contrary to law or that the prosecution failed to produce evidence of prior convictions. Therefore, we move to the second prong of the analysis and review Mr. Molk‘s sentence under an abuse of discretion standard.
{¶31} The trial court‘s sentence, discussed supra., was well within the permissible range of sentences for offenders qualifying under
{¶32} Ineffective Assistance of Counsel
{¶33} In his third assignment of error, Mr. Molk claims that he was denied the effective assistance of trial counsel. He asserts that he was advised by his counsel to
{¶34} “In the context of a guilty plea, the standard of review for ineffective assistance of counsel is whether: (1) counsel‘s performance was deficient; and (2) the defendant was prejudiced by the deficient performance in that there is a reasonable probability that, but for counsel‘s error, the defendant would not have pled guilty.” State v. Dudas, 11th Dist. Nos. 2008-L-081 and 2008-L-082, 2008-Ohio-7043, ¶27, citing State v. Madeline (Mar. 22, 2002), 11th Dist. No. 2000-T-0156, 2002 Ohio App. LEXIS 1348, *9. The defendant has the burden of proving ineffective assistance of counsel. Madeline at *10.
{¶35} This court has repeatedly emphasized that “‘[t]he mere fact that, if not for the alleged ineffective assistance of counsel, the defendant would not have entered a guilty plea is not sufficient to establish the requisite connection between the guilty plea and the ineffective assistance.’ (Emphasis sic.) Id., citing State v. Sopjack (Dec. 15, 1995), 11th Dist. No. 93-G-1826, 1995 Ohio App. LEXIS 5572, *11, citing State v. Haynes (Mar. 3, 1995), 11th Dist. No. 93-T-4911, 1995 Ohio App. LEXIS 780, *4-*5. ‘Rather, ineffective assistance of trial counsel is found to have affected the validity of a guilty plea when it precluded a defendant from entering his plea knowingly and voluntarily.’ Madeline, supra.” Dudas at ¶28.
{¶36} “A claim that a guilty plea was induced by ineffective assistance of counsel must be supported by evidence where the record of the guilty plea shows it was voluntarily made.” Dudas at ¶31, citing State v. Malesky (Aug. 27, 1992), 8th Dist. No. 61290, 1992 Ohio App. LEXIS 4378 and State v. Kapper (1983), 5 Ohio St.3d 36. In Dudas, we quoted with favor the holding in Malesky: “A naked allegation by a
{¶37} Mr. Molk fails to support his claim of ineffective assistance of counsel either through the record or with affidavits or other supporting material. As previously noted, we were not provided an argument supported with citations to authority nor were we provided a complete trial record or transcript; therefore, we must presume regularity as to the trial proceedings, including Mr. Molk‘s attorney‘s conduct.
{¶38} Mr. Molk‘s allegation of ineffective assistance of counsel is a prime example of the naked allegation held to be insufficient to support an ineffective assistance of counsel claim in Dudas and Malesky. Without any evidence to the contrary, we presume that Mr. Molk‘s attorney rendered effective assistance to him at the trial court level. Mr. Molk‘s third and final assignment of error is without merit.
{¶39} The judgment of the Mentor Municipal Court is affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.