State v. NeffState v. Neff
{¶ 1} Defendant-Appellant, Charles F. Neff, appeals the judgments of the Crawford County Court of Common Pleas, imposing two eighteen month sentences and one twelve month sentence to be served consecutively to each other. On appeal, Neff asserts that the trial court failed to properly follow
{¶ 2} In September of 2003, in case number 03-CR-0116, a Crawford County Grand Jury indicted Neff on a three count indictment. Count One was for possession of drugs, specifically cocaine, a schedule II controlled substance, within one thousand feet of a school, in the amount of 23.23 grams in violation of
{¶ 3} In March of 2004, in case number 04-CR-0050, a Crawford County Grand Jury indicted Neff under a two count indictment. Count One was for burglary in violation of
{¶ 4} In June of 2004, Neff was represented by counsel and an agreed plea was reached between the parties. As part of the plea agreement, Neff pled guilty, under case number 03-CR-0116, to Count One, possession of drugs in violation of
{¶ 5} In August of 2004, a sentencing hearing was held. In addition to finding Neff convicted to the above counts, the trial court found that several factors enumerated under
{¶ 6} It is from these judgments that Neff appeals, presenting the following assignments of error for our review.1
Assignment of Error No. I
The Court failed to properly follow 2929.12 when he sentenced Appellant to maximum sentences in all three counts.
Assignment of Error No. II
The Court failed to properly follow 2929.12 when he sentenced Appellant to consecutive sentences instead of concurrent.
Assignment of Error No. III
That based upon the rulings in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed.2d 4003 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000), The Ohio State Felony Sentencing Law is unconstitutional.
Assignments of Error Nos. I II
{¶ 7} In his first assignment of error, Neff asserts that the trial court failed to properly follow
Standard of Review
{¶ 8} Because assignments of error I and II address the statutory felony sentencing guidelines, we will use the following standard of review for both.
{¶ 9} The structure of the Ohio felony sentencing law provides that the trial court‘s findings under
{¶ 10} An appellate court may modify a trial court‘s sentence only if it clearly and convincingly finds either (1) that the record does not support the sentencing court‘s findings or (2) that the sentence is contrary to the law.
{¶ 11} According to
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
{¶ 12} In determining whether either maximum or consecutive sentences should be imposed, the trial court must consider the seriousness and recidivism factors in
{¶ 13} Upon review of the record, we note that no written transcript was made of the proceedings, but the trial court provided a video recording to Neff in the form of computer medium. Under App.R. 9(A):
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.
Even though the trial court provided Neff with a video recording of the proceedings, computer medium does not constitute a videotape recording. Therefore, App.R. 9 required that the trial court‘s video recording of the proceedings be transcribed into written form for our review. But, we have not been provided with any record of those proceedings, either written or the actual computer medium. It is Appellant‘s duty to order from the reporter the necessary portions of the transcript. App.R. 9(B). In absence of a transcript, an appellate court is required to assume the regularity of the lower court‘s proceedings. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199.
{¶ 14} Assuming regularity in the lower court‘s proceedings, we will presume that the trial court considered all of the required statutory factors, made all of the required findings necessary to impose maximum and consecutive sentences at the sentencing hearing, stated its reasoning for making such findings at the sentencing hearing, and that the record supports these findings. Accordingly, Neff‘s first and second assignments of error are without merit and are overruled.
Assignment of Error No. III
{¶ 15} In his third assignment of error, Neff contends that the Ohio felony sentencing guidelines are unconstitutional. Neff relies upon the holding in Blakely v. Washington and Apprendi v. New Jersey for this assignment of error. This Court has previously ruled that Blakely does not apply to Ohio‘s sentencing scheme. State v. Trubee, 3rd Dist. No. 9-03-65, 2005-Ohio-552, at ¶¶ 16-38. Therefore, Neff‘s third assignment of error is overruled.
{¶ 16} Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed.
Cupp, P.J., and Bryant, J., concur.