2004 Ohio 5787 | Ohio Ct. App. | 2004
{¶ 2} Appellant has not filed a transcript or provided this court with a statement of facts leading up to her indictment. Thus, the facts in this case are scarce. As best we can gather, appellant was found guilty of reckless operation in Youngstown Municipal Court in October 2001.
{¶ 3} On November 8, 2001, a Mahoning County Grand Jury indicted appellant for failure to comply with an order or signal of a police officer, a third degree felony in violation of R.C.
{¶ 4} Appellant violated the terms of the drug court on several occasions. On February 6, 2003, the court granted appellee's motion to terminate appellant from the drug court.
{¶ 5} Appellant subsequently filed motions to dismiss the charge and to vacate her guilty plea based on double jeopardy grounds. The trial court denied appellant's motion to vacate her plea and held that her motion to dismiss was moot. It then sentenced appellant to the maximum term of five years of incarceration. Appellant filed a timely notice of appeal on May 15, 2003.
{¶ 6} Appellant raises one assignment of error, which states:
{¶ 7} "The plea and conviction and finding of guilt by the trial court should be vacated, the conviction reversed and the underlying charge dismissed based upon a violation of defendant/appellant's constitutional rights guaranteed under the United States constitution, to wit; a violation of her
{¶ 8} Appellant argues that a former prosecution and conviction of reckless operation is a bar to a subsequent conviction of felony fleeing and eluding. Citing, State v.Morton (Apr. 30, 1999), 1st Dist. No. C-980391; State v. Knaff
(1998),
{¶ 9} On the other hand, appellee contends that because appellant's conduct that resulted in the charge of reckless operation was a separate act from her conduct that resulted in the charge of failure to comply, double jeopardy does not apply. Specifically, appellee contends that the reckless operation charge resulted from the observations of two officers while following appellant in an unmarked car, while the failure to comply charge arose from appellant eluding a different officer's marked car, which had its lights and sirens activated.
{¶ 10} The double jeopardy clause of the
{¶ 11} In determining whether two offenses are actually the same offense for double jeopardy purposes, courts apply the test set out in Blockburger v. U.S. (1932),
{¶ 12} But "[i]f the offenses charged are separate and distinct because they arise from different transactions, and different evidence is required to prove each, then double jeopardy is not applicable." City of Elyria v. Rowe (April 11, 2001), 9th Dist. No. 00CA007700, citing State v. Johnson
(1960),
{¶ 13} Before proceeding any further, we must note that appellant has not provided this court with a transcript or record of the proceedings in the municipal court, nor has she provided an App. R. 9(C) transcript substitute. Furthermore, there is no mention on the record of the facts of the offense that resulted in appellant's guilty plea. It is appellant's duty to provide us with a transcript or transcript substitute in accordance with App.R. 9. Without a transcript, this court cannot determine what facts constituted the reckless operation charge that appellant pled no contest to and what facts constituted the failure to comply charge that appellant pled guilty to.
{¶ 14} In this matter, appellant argues that the two separate charges arose from the same act. But appellee contends that they stemmed from two separate acts, one pursuit by two officers in an unmarked car and another pursuit by a different officer in a marked police car. As no evidence exists on the record as to what actually occurred the day of the offenses, we have no way to evaluate whether appellant's conduct constituted two separate and distinct offenses.
{¶ 15} This court has repeatedly stressed that it is an appellant's responsibility to provide us with a record of the facts, testimony, and evidence in support of their assignments of error. State v. Funkhouser, 7th Dist. No. 02-BA-4, 2003-Ohio-697, at
¶ 13, citing Youngstown v. McDonough (Dec. 12, 2000), 7th Dist. No. 00-CA-19; Mcready v. Guthrie (June 13, 2000), 7th Dist. No. 99-CA-52; Brunswick v. Diana (June 13, 2000), 7th. Dist. No. 99-CA-108; Struthers v. Harshbarger (Dec. 27, 1999), 7th Dist. No. 98-CA-253, application for reconsideration denied (Oct. 4, 2000), 7th Dist. No. 98-CA-253. Since appellant has not provided us with any facts in the record on which to review her claim, we have no choice but to presume the validity of the trial court's judgment. Appellant's assignment of error, therefore, is without merit.
{¶ 16} For the reasons stated above, the trial court's judgment is hereby affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.