Lead Opinion
{¶ 3} App. R. 9 provides for the record on appeal, and states in pertinent part:
{¶ 4} "(A) Composition of the record on appeal the original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases. A videotape recording of the proceedings constitutes the transcript of proceedings other than hereinafter provided, and, for purposes of filing, need not be transcribed into written form. Proceedings recorded by means other than videotape must be transcribed into written form. When the written form is certified by the reporter in accordance with App. R. 9(B), such written form shall then constitute the transcript of proceedings. When the transcript of *3 proceedings is in the videotape medium, counsel shall type or print those portions of such transcript necessary for the court to determine the questions presented, certify their accuracy, and append such copy of the portions of the transcripts to their briefs."
{¶ 5} Accordingly, if the transcript of proceedings is in the electronic medium, the appellant must type or print those portions of the transcript necessary for the appellate court to determine the questions presented, certify their accuracy, and append such copy of the portions of the transcript to his or her brief.
{¶ 6} In the case at bar, appellant appended copies of three (3) pages of the testimony of Deputy Fletcher during the motion to suppress hearing held August 29, 2007 and one and one-half (1 1/2) pages from the trial court's sentencing hearing after appellant's jury trial on December 4, 2007. Appellant did certify the accuracy of the portions of the transcript as required by App. R. 9(A). No transcript concerning the stop of appellant, statements made by appellant to the officer, if any, other observations made by the officer concerning his assessment of appellant's impairment or other field sobriety testing were provided by either party.
{¶ 7} App. R. 9 further provides: "[u]nless the entire transcript is to be included, the appellant, with the notice of appeal, shall file with the clerk of the trial court and serve on the appellee a description of the parts of the transcript that the appellant intends to include in the record, a statement that no transcript is necessary, or a statement that a statement pursuant to either App. R. 9(C) or 9(D) will be submitted, and a statement of the assignments of error the appellant intends to present on the appeal. If the appellee considers a transcript of other parts of the proceedings necessary, the appellee, within ten days after the service of the statement of the *4 appellant, shall file and serve on the appellant a designation of additional parts to be included. The clerk of the trial court shall forward a copy of this designation to the clerk of the court of appeals.
{¶ 8} "If the appellant refuses or fails, within ten days after service on the appellant of appellee's designation, to order the additional parts, the appellee, within five days thereafter, shall either order the parts in writing from the reporter or apply to the court of appeals for an order requiring the appellant to do so."
{¶ 9} In the case at bar, the record indicates that appellant did not "serve on the appellee a description of the parts of the transcript that the appellant intends to include in the record" as required in App. R. 9. Appellee, therefore, had no opportunity to consider whether a transcript of other parts of the proceedings was necessary. Accordingly, failure to comply with the rule will preclude us from considering those assignments of error that would require a review of the electronic medium. See, State v. Childress (March 23, 1992), Delaware App. No. 91-CA-30; State v. Daniels, Geauga App. No. 2004-G-2507,
{¶ 10} In addition, the trial court's entry overruling appellant's motion to suppress states, "[t]he court made a number of findings of fact and conclusions of law orally on the record on August 29, 2007. Those findings are incorporated into the additional findings made by this order." Appellant did not provide this Court with a copy of the transcript of the hearing on his motion to suppress containing the trial court's oral findings.
{¶ 11} Accordingly, absent a complete transcript we are unable to review the facts underlying appellant's stop, the administration of the field sobriety tests and arrest *5
in context. State v. Auld, Delaware App. No. 2006-CAC-120091,
{¶ 12} The record transmitted to this court establishes the following facts:
{¶ 13} On June 15, 2007 appellant was charged with one count of OVI in violation of R.C.
{¶ 14} On July 31, 2007 appellant filed a Motion to Suppress alleging that there was no probable cause to arrest appellant for OVI based upon, in relevant part to this *6
appeal, the Deputy's failure to administer the so-called field sobriety tests in substantial compliance with The National Highway Traffic and Safety Administration ["NHTSA'] standards. The motion was heard by the trial court on August 29, 2007. The trial court overruled the motion by Judgment Entry filed September 21, 2007. The matter proceed to a jury trial wherein the jury found appellant guilty of one count of OVI in violation of R.C.
{¶ 15} Appellant timely appealed raising the following Assignments of Error:
{¶ 16} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT WHEN IT ADMITTED INTO EVIDENCE THE ADMINISTRATION, THE RESULTS OF, AND THE STATE'S INTERPRETAION [SIC] OF THE FIELD SOBRIETY TESTS WHICH DID NOT SUBSTANTIALLY COMPLY WITH THE REQUIREMENTS AND MANDATES OF THE NATIONAL TRAFFIC HIGHWAY AND SAFETY ADMINISTRATION OR ANY OTHER CREDIBLE, RELIABLE AND GENERALLY ACCEPTED STANDARDS IN EFFECT AT THE TIME.
{¶ 17} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT WHEN IT SENTENCED DEFENDANT PURSUANT TO FACTS NOT FOUND BY THE JURY NOR ADMITTED BY THE DEFENDANT, WHICH ENHANCED THE MANDATORY TERM OF INCARCERATION.
{¶ 18} "III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT WHEN IT SENTENCED DEFENDANT TO AN ENHANCED *7 PENALTY BASED ON THE DEFENDANT'S EXERCISE OF CONSTITUTIONAL RIGHT."
{¶ 20} In the case at bar, appellant was charged with a violation of R.C.
{¶ 21} R.C.
{¶ 22} "In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:
{¶ 23} "(i) The officer may testify concerning the results of the field sobriety test so administered. *8
{¶ 24} "(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding.
{¶ 25} "(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate."
{¶ 26} In State v. Boczar,
{¶ 27} While field sobriety tests must be administered in substantial compliance with standardized procedures, probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on one or more of these tests. The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered. State v.Homan (2000),
{¶ 28} In the case at bar, the trial court found the Deputy had probable cause to arrest appellant for OVI "without considering the results of the field sobriety tests."(Judgment Entry, filed September 21, 2007 at 2). As we do not have the complete transcript of the suppression hearing, we must presume the validity of the lower court's findings. State v. Auld, supra at ¶ 26. Accordingly, the totality of the evidence, even excluding the field sobriety tests, gave rise to probable cause to arrest for OVI. Homan at 427,
{¶ 29} Assuming arguendo the tests should not have been admitted to support the Deputy's finding of probable cause to arrest, we find, in this case, that the admission of the field sobriety tests at appellant's suppression hearing was harmless beyond a reasonable doubt. UnitedStates v. Olano (1993),
{¶ 30} Appellant's first assignment of error is denied.
{¶ 32} In the case at bar, appellant was found guilty by a jury of a first-degree misdemeanor offense. i.e., R.C.
{¶ 33} As we have noted, the Court in Foster concluded judicial fact-finding is not required before a prison term can be imposed within the basic ranges of R.C.
{¶ 34} "Although the appellant characterizes the trial judge's statements as `judicial fact-finding' his argument is essentially one of form over substance. The maximum sentence a judge may impose afterFoster is the `statutory maximum.' In this *11 case, that is [one hundred and eighty days]. Appellant's sentence of [six days] is within the range provided by statute.
{¶ 35} "The trial court was not required to find any additional fact in order to impose this sentence. The court could have imposed the maximum sentence without making any statement on the record. The fact that the trial judge explained his reasons for imposing the maximum sentence on the record cannot transform a sentence within the rangeprovided by statute into a constitutionally infirm sentence on the grounds that the statements constitute impermissible `judicial fact-finding.'" State v. Goggans, supra at ¶ 23-24.
{¶ 36} We further note, there is no constitutional right to an appellate review of a criminal sentence. Moffitt v. Ross (1974),
{¶ 37} This Court reviews the imposition of more-than-minimum, maximum, or consecutive sentences for abuse of discretion. State v.Firouzmandi, 5th Dist. No. 2006-CA-41,
{¶ 38} There is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of appellant's case to suggest that *12 his sentence was based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment.
{¶ 39} In Alabama v. Smith (1989),
{¶ 40} Therefore, we agree that no presumption existed in this case and appellant had the burden of proving actual vindictiveness. However, appellant offered no evidence of vindictiveness beyond the fact that the sentence is more than the minimum sentence for a first time OVI offender.
{¶ 41} Appellant's second and third assignments of error are denied. *13
{¶ 42} The sentence of the Delaware County Municipal Court is hereby affirmed.
*15Gwin, J., and Wise, J., concur; Hoffman, P.J., concurs separately.
Concurrence Opinion
{¶ 43} I concur in the majority's analysis and disposition of Appellant's second and third assignments of error. I further generally concur in the majority's substantive analysis of Appellant's first assignment of error and it's disposition. However, I do so without relying on the presumption of regularity.
{¶ 44} I find the majority's application of that portion of App. R. 9, requiring the special notice of inclusion of less than the entire transcript be filed together with the Notice of Appeal, misplaced. The CD-ROM's transmitted to this Court by the clerk consist of the video recordings of the motion to suppress hearing and the jury trial. App. R. 9(A) specifies "A videotape recording of the proceedings constitutes the transcript of proceedings other than hereinafter provided. . . ." While the rule additionally requires counsel to type or print those portions of the videotape necessary to determine the questions presented and certify their accuracy, I do not believe the rule intends, nor do I find, failure to satisfy that later requirement constitutes a failure to transmit the complete transcript. Therefore, I do not find the special notice provision when filing the notice of appeal is required where, as here, the entire proceedings are transmitted in videotape medium. *1