STATE OF OHIO, Plaintiff-Appellee -vs- DAVID MICHAEL BROWN, Defendant-Appellant
Case No. 17CA55
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 11, 2017
2017-Ohio-8997
Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2017CR0269. JUDGMENT: Affirmed.
For Plaintiff-Appellee
GARY BISHOP Richland County Prosecuting Attorney 38 South Park Street Mansfield, OH 44902
For Defendant-Appellant
DAVID M. WATSON 3 North Main Street, Suite 702 Mansfield, OH 44902
{¶1} Appellant David Michael Brown appeals the May 16, 2017 sentencing entry of the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} On May 9, 2017, Brown pled guilty to one count of Hаving Weapons While Under Disability, in violation of
{¶3} The trial court sentenced Brown to nine months prison consecutivе the imposition of 487 days post release control time.
Assignment of Error
{¶4} Brown raises one assignment of error,
{¶5} “I. THE TRIAL COURT ERRED BY IMPOSING 487 DAYS OF POST RELEASE CONTROL TIME.”
Law and Analysis
{¶6} Brown claims that the trial court in Richland County Court of Common Pleas, Case No. 2002 CR 497 and 2002 CR 573 failed to properly notify Brown that as a part of his sentence he would be subject to a mandatory five years оf post-release control upon release from prison. Brown contends that after serving less than nine years in prison, the triаl court granted him judicial release during which Brown violated the terms and conditions of probation. Brown argues that a trial court‘s failure to correctly impose postrelease control before a defendant completes his sentence rеnders the parole board‘s authority to impose post-release control a nullity.
We hold that to validly impose post-release control when the court orally provides all the required advisements at the sentencing hearing, the sentencing entry must сontain the following information: (1) whether post-release control is discretionary or mandatory, (2) the duration of the post-release-control period, and (3) a statement to the effect that the Adult Parole Authority (“APA“) will administer the post-release сontrol pursuant to
R.C. 2967.28 and that any violation by the offender of the conditions of post-release control will subject the offender to the consequences set forth in that statute.
___ Ohio St.3d ___, 2017-Ohio-2927 (May 24, 2017), ¶1. The Supreme Court further noted,
Grimes did not introduce a transcript of the hearing into the record, so we must assume the regularity of the sentencing hearing. Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000). Our holding is limited to those cases in which the trial court makes the proper advisements tо the offender at the sentencing hearing. We reach no conclusion as to the requirements for sentencing entries in casеs in which notice at the sentencing hearing was deficient.
___ Ohio St.3d ___, 2017-Ohio-2927 (May 24, 2017), ¶20.
{¶8} In the case at bar, the record does not contain the Judgment Entry of Sentence and Conviction from Richland County Court of Common Pleas, Case No. 2002
{¶9} As was true in Grimes, this court must therefore, “assume the rеgularity of the sentencing hearing. Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000).” Grimes at ¶20.
{¶10} Although the state has attached unverified copies of the judgment entries in the prior cases to its brief filed in this case, the exhibits attached to the state‘s brief were not filed in the trial court in the underlying action and were not included in the record on appeal. An appellant has the burden of showing the trial court erred based on reference tо matters in the record. State v. Ray, 181 Ohio App.3d 590, 2009–Ohio–1395, 910 N.E.2d 34, ¶ 29 (5th Dist.).
A reviewing court cannot add matter to the record before it that was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).
{¶11} In the case at bar, the record does not contain a transcript of the sеntencing hearings conducted by the trial court in the prior cases or properly authenticated sentencing entries. Without a complete record of the hearings and the judgment entries filed in those cases having been filed in the trial court or made a part of the record on appeal, we presume that the omitted hearings and entries support the trial court‘s deсision and that the trial court‘s sentencing on the charge in the case at bar complies with applicable rules and sentеncing statutes. See, State ex rel. County of Cuyahoga v. Jones Lang Lasalle Great Lakes Co., ____ Ohio St.3d ____, 2017-Ohio-2927(Sept. 21, 2017), ¶5.
{¶12} A trial court can take judicial notice of the court‘s docket. Helfrich v. Madison, 5th Dist. Licking No. 08-CA-150, 2009-Ohio-5140, ¶49. However, a court does not have the authority to take judicial notice of the prоceedings in another case, including its own judgment entries. Id., citing State v. LaFever, 7th Dist. Belmont No. 02 BE 71, 2003-Ohio-6545, ¶27; State v. Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶17; Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision, 7 Ohio App.3d 157, 454 N.E. 2d 1330 (4th Dist. 1982); NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342, 901 N.E.2d 869, 2008-Ohio-5996 (8th Dist.), ¶16. The rationale for this holding is that if a trial court takes notice of a prior proceeding, the appellate court cannot
{¶13} This Court is not authorized to review materials that are not part of the official record. We are forced to conclude that there is no reviewable evidence in the record to demonstrate that in Richland County Court of Common Pleas Case Nos. 2002 CR 497 and 2002 CR 573 the trial court did not orally provides all the required advisements at the sentеncing hearing and/or that the sentencing entries did not contain the following information: (1) whether post-release control is discretionary or mandatory, (2) the duration of the post-release control period, and (3) a statement to the effect that thе Adult Parole Authority (“APA“) will administer the post-release control pursuant to
{¶15} The Judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur