State v. CarpenterState v. Carpenter
{¶ 1} This cause is before the court on appellant Michael Carpenter‘s pro se application to reopen the appeal from his convictions on one count of rape of a child under the age of thirteen by force or threat of force, a violation of
{¶ 2} Appellee, the state of Ohio, filed a response contesting the reopening of this appeal. Appellee contends, among other things, that because appellant filed a notice of appeal from our decision in Carpenter, this court lacks the jurisdiction to entertain appellant‘s application.
{¶ 3} As a preliminary matter, we find that, pursuant to
{¶ 4}
{¶ 5} Appellant first argues that appellate counsel‘s performance was deficient because he failed to file a transcript of the hearing on his motion to suppress. On appeal, appellant‘s Assignment of Error No. VII asserted that the trial court erred in denying appellant‘s motion to suppress evidence seized from his residence. The sole argument in support of this assertion was the fact that the search warrant was executed on November 7, 1999 but was purportedly signed by the issuing judge on November 8, 1999. We determined that appellant‘s failure to file a transcript of the suppression hearing prevented our review of this issue.
{¶ 6} The Ohio Rules of Appellate Procedure place the burden upon an appellant to produce and file those parts of the record necessary for the determination of an appeal.
{¶ 7} Next, appellant maintains that his appellate counsel was ineffective because he failed to file a transcript of his sentencing hearing. In his Assignment of Error No. VIII, appellant contended that the trial court failed to comply with the sentencing guidelines found in R.C. Chapter 2929 in imposing maximum and consecutive sentences. For the following reasons, we grant appellant‘s application for reopening on the alleged sentencing errors.
{¶ 8} After a jury trial, appellant was found guilty of the named offenses. On April 28, 2000, the trial court apparently held a sentencing hearing. A copy of the transcript of this hearing was not included in appellant‘s appeal. Carpenter, supra.
{¶ 9} In its final judgment entry, the lower court imposed a mandatory life sentence for the violation of
{¶ 10} Pursuant to
{¶ 11} The rule followed by this court allows a trial court to state the two necessary findings and reasons in the its judgment entry on sentencing, State v. Massie (Oct 5, 2001), Huron App. No. H-00-031 and State v. Walk (Dec. 29, 2000), Erie App. No. E-97-079, and/or to orally state the required findings and reasons at the sentencing hearing, State v. Akers (June 2, 2000), Sandusky App. No. S-99-035 (Citations omitted.).
{¶ 12} Here, the trial court‘s judgment entry, in imposing consecutive sentences, makes only two of the requisite three findings found in
{¶ 13} Appellant‘s Assignment of Error No. IX asserted that the trial court erred in determining that appellant is a sexual predator. Specifically, he claimed that the likelihood that he would commit an offense in the future was not demonstrated. Again, we held that, in the absence of a transcript of the sexual predator hearing, we must presume the validity of the proceedings below. Appellant now maintains that his appellate counsel was ineffective for failing to file that transcript1.
{¶ 14} At a sexual offender classification hearing, in order for the offender to be designated a sexual predator, the state must prove by clear and convincing evidence that the offender has been convicted of a sexually oriented offense and that the offender is likely to engage in the future in one or more sexually oriented offenses.
{¶ 15} “Instead of deciding whether the offender is particularly deserving of punishment, the issue presented to the court at a sexual offender classification hearing is whether the defendant is likely to commit future sexually oriented offenses.” State v. Eppinger (2001), 91 Ohio St.3d 158, 166. In deciding the likelihood of recidivism, a court must consider all relevant factors, including those relevant factors listed in
{¶ 16} Indeed, in Eppinger, the Ohio Supreme Court held that a sexual predator determination is “confounding to review on appeal without an adequate record” and therefore set forth a model procedure to be used by trial courts in making this determination. Id. at 166-167. Thus, it is “critical” for a clear and accurate record to be created for review. Id. at 166.
{¶ 17} In the present case, we had only the judgment entry for our review. Therefore, and based upon the foregoing law, we are compelled to conclude that appellant has demonstrated, pursuant to
{¶ 18} As to the remaining issues raised by appellant, they concern matters outside the record of this cause and, as such, are not the proper subject of an
{¶ 19} Accordingly, this appeal is hereby reopened, as provided in
APPLICATION GRANTED.
Melvin L. Resnick, J., Mark L. Pietrykowski, P.J., and George M. Glasser, J., CONCUR.
Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.