Opinion
23CA00004
11-21-2023
STATE OF OHIO Plaintiff-Appellee v. CURTIS W. HULL Defendant-Appellant
For Plaintiff-Appellee CHARLES T. McCONVILLE Knox County Prosecutor For Defendant-Appellant JAMES S. SWEENEY
Appeal from the Knox County Court of Common Pleas, Case No. 20CRI12-0294
For Plaintiff-Appellee CHARLES T. McCONVILLE Knox County Prosecutor
For Defendant-Appellant JAMES S. SWEENEY
Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. Judges
OPINION
Hoffman, J.
{¶1} Defendant-appellant Curtis Hull appeals the judgment of the Knox County Common Pleas Court convicting him following his pleas of no contest to failure to use a turn signal (R.C. 4511.39), failure to stop at a grade crossing (R.C. 4511.61(D)), failure to comply with the order or signal of a police officer (R.C. 2921.331(B)), driving under a lifetime suspension (R.C. 4510.18(A)), having weapons under disability (R.C. 2923.13(A)(2)), and criminal damaging (R.C. 2909.06(A)(1)), and sentencing him to an aggregate term of incarceration of ninety months. Plaintiff-appellee is the state of Ohio.
A rendition of the facts is not necessary to our resolution of the issue raised on appeal.
{¶2} On December 14, 2020, the Knox County Grand Jury indicted Appellant on one count of failure to use turn signal in violation of R.C. 4511.39 (Count 1), one count of failure to stop at grade crossing in violation of R.C. 4511.61(D) (Count 2), one count of failure to comply with order or signal of police officer in violation of R.C. 2921.331(B) (Count 3), one count of driving under lifetime suspension in violation of R.C. 4510.18(A) (Count 4), one count of having weapons while under disability in violation of R.C. 2923.13(A)(2) (Count 5), and one count of criminal damaging in violation of R.C. 2909.06(A)(1) (Count 6). On April 18, 2022, Appellant pled no contest to the charges. The trial court convicted Appellant of all charges. A sentencing hearing was held on May 11, 2022. By judgment entry filed May 12, 2022, the trial court sentenced appellant to thirty months incarceration on Count 3, thirty months incarceration on Count 4, and thirty months incarceration on Count 5, to be served consecutively, and ninety days incarceration on Count six, to be served concurrently to the consecutive sentences.
{¶3} Appellant filed an appeal to this Court. This Court found the trial court failed to make the requisite findings to impose consecutive sentences, and remanded for resentencing. State v. Hull, 5th Dist. Knox No. 22-CA-10, 2022-Ohio-4274.
{¶4} The trial court held a resentencing hearing on February 1, 2023. The trial court imposed the same sentence it had imposed earlier. It is from the February 6, 2023 judgment of the trial court Appellant prosecutes his appeal, assigning as error:
THE TRIAL COURT'S FAILURE TO PROVIDE AN ADEQUATE RECORDING OF APPELLANT'S RESENTENCING HEARING CONSTITUTES A VIOLATION OF HIS DUE PROCESS RIGHTS ON APPEAL.
{¶5} It is undisputed the recording of Appellant's resentencing hearing was of such poor quality the court reporter was unable to produce a transcript of the proceedings from the recording. Appellant argues the trial court erred in failing to provide an adequate recording to produce a transcript for use on appeal.
{¶6} In the event a transcript is unavailable, as in the instant case, App. R. 9(C) provides:
(C) Statement of the Evidence or Proceedings When No recording Was Made, When the Transcript of Proceedings Is Unavailable, or When a Recording Was Made But Is No Longer Available for Transcription
(1) If no recording of the proceedings was made, if a transcript is unavailable, or if a recording was made but is no longer available for transcription, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App. R. 10 and the appellee may serve on the appellant objections or propose amendments to the statement within ten days after service of the appellant's statement; these time periods may be extended by the court of appeals for good cause. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App.R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal.
{¶7} The reversal of a conviction and sentence on grounds of unrecorded proceedings will not occur in situations where the defendant has failed to demonstrate: (1) a request was made at trial the proceedings be recorded, or an objection was made to the failure to record, (2) an effort was made on appeal to comply with App.R. 9 and to reconstruct what occurred or to establish its importance, and (3) material prejudice resulted from the failure to record the proceedings at issue. Cleveland v. McGervey, 8th Dist. No. 110770, 2022-Ohio-3911, 200 N.E.3d 367, ¶ 21
{¶8} Appellant argues he was unable to comply with App. R. 9(C) because appellate counsel was not trial counsel and therefore has no recollection of the proceedings, and Appellant is incarcerated. Appellant analogizes his circumstances to McGervey, in which the court held:
Moreover, we are persuaded by McGervey's contention that she attempted to comply with App.R. 9 but was unable to do so despite her best efforts. In this case, appellate counsel could not assist in the reconstruction of the record because she did not represent McGervey during the trial proceedings. Additionally, appellate counsel's efforts to gather pertinent information from trial counsel proved unsuccessful due to trial counsel's inability to recall specific testimony. Finally, we find competent and credible information supports the claim that McGervey was unable to assist in the preparation of a statement of the evidence due to circumstances that are beyond her control. Although we are unable to set forth specific grounds supporting our determination given the number of restricted documents filed in this case, we emphasize that our conclusion is premised on specific information contained within the available portions of the transcript, the sealed presentence-investigation report, and the sealed mitigation report authored by the court's psychiatric clinic.
{¶9} Id. at ¶ 23.
{¶10} However, this Court has recently distinguished McGervey in a case where the appellant made no showing he tried but was unable to comply with App. R. 9. Mansfield v. Rembert, 5th Dist. Richland No. 2023 CA 0007, 2023-Ohio-3787, ¶ 15.
{¶11} In the instant case, the record before this Court does not demonstrate Appellant made an effort to comply with App. R. 9, and was unable to do so despite his best efforts. There is nothing in the record to demonstrate both trial counsel and Appellant were unable to assist appellate counsel in the preparation of a statement in compliance with App. R. 9(C). The fact Appellant is incarcerated does not, standing alone, render him incapable of aiding counsel in preparing a statement of the proceedings. Further, Appellant has made no showing on the record trial counsel was unable to remember the proceedings or was unwilling to aid appellate counsel in complying with App. R. 9(C).
{¶12} The assignment of error is overruled. The judgment of the Knox County Common Pleas Court is affirmed.
Hoffman, J. Gwin, P.J. and Baldwin, J. concur