Opinion
C.A. Case No. 17741. T.C. Case No. 98 CRB 3126.
Rendered on December 17, 1999.
DAVID H. FUCHSMAN, Atty. Reg. #0018407, Attorney for Plaintiff-Appellee.
MICHAEL C. THOMPSON, Atty. Reg. # 0041420, Attorney for Defendant-Appellant
OPINION
Larry Arnold appeals from his conviction in the Montgomery County Court of assault after a bench trial. Arnold was sentenced to 180 days in jail with 170 days suspended. He was also placed on probation for a period of three years and fined $100. The sentence of confinement was imposed on January 6, 1999 and the defendant was released on January 12, 1999. The defendant appealed his conviction on February 3, 1999., Appellant contends in a single assignment of error that he did not waive the assistance of counsel and therefore pursuant to Crim. R. 44 he could not be sentenced to a period of confinement.
The State notes in a response to our show cause order that the appellant failed to file a transcript of the proceedings below. A check of the Clerk's docket indicated that is the case. In the absence of the transcript, the defendant cannot portray the error he now asserts. A criminal defendant must suffer the consequences of the nonproduction of an appellate record where such nonproduction is caused by his own actions. State v. Jones (1994), 71 Ohio St.3d 293. Parenthetically, the journal entries and the partial transcript included in appellant's brief indicate the defendant was afforded the opportunity to employ counsel before his trial but he apparently chose not to avail himself of that right. The trial court notified the defendant on December 14, 1999 that the date of trial would be January 6, 1999. The defendant appeared on that date without a lawyer although he indicated he could afford one. The defendant informed the court he "didn't think it was necessary to have an attorney to tell the truth." (See appellant's brief at page 7). The sentence imposed by the court did not violate Crim. R. 44.
The assignment of error is overruled. The judgment of the trial court is Affirmed.
BROGAN, J., YOUNG, J., and GLASSER, J., concur.
(Honorable George M. Glasser, Retired from the Court of Appeals, Sixth Appellate District, Sitting By Assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
David H. Fuchsman
Michael C. Thompson
Hon. James A. Hensley, Sr.