[Cite as State v. Miller, 2011-Ohio-2403.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95684
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAYMOND MILLER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-225759, CR-225777, CR-225778, CR-225779, CR-225780,
CR- 225781, CR-225782, CR-227170, and CR-227351
BEFORE: Sweeney, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 19, 2011
FOR APPELLANT
Raymond A. Miller, Pro Se
No. 582-394
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mary McGrath, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Raymond A. Miller (“defendant”) appeals the
trial court’s denial of his motion to resentence him for multiple felonies to
which he pled guilty to and received his sentences for in 1988. In the interim,
defendant has been released and returned to prison for new convictions and to
serve out the balance of the sentences that underlie this appeal. The
gravamen of defendant’s motion for resentencing is that the trial court did not
advise him of his appellate rights in accordance with Crim.R. 32(B)(2). The
trial court denied the motion from which defendant has appealed.
{¶ 2} Defendant’s sole assignment of error provides: “The trial court
erred and violated Appellant’s due process rights when it did not advise him of
his appellate rights at sentencing hearing.”
{¶ 3} Defendant relies on State v. Hunter, Cuyahoga App. No. 92626,
2010-Ohio-657, and contends he is entitled to a new sentencing hearing on the
grounds that he was not advised of his appellate rights pursuant to Crim.R.
32(B)(2). The rule requires that “after imposing sentence in a serious offense,
the court shall advise the defendant of the defendant’s right, where applicable,
to appeal or to seek leave to appeal the sentence imposed.” Crim.R. 32(B)(2).
In Hunter, this court found it was “clear” from the record that the trial court
failed to advise Hunter of his right to appeal his sentence in violation of
Crim.R. 32. Id. at ¶17. We are unable to make that determination from the
record that is before us in this case.
{¶ 4} In support of his motion, defendant attached the 1988 sentencing
journal entries to his motion for resentencing but presented no other evidence
as to what transpired at the sentencing hearing. The record does not contain
the transcripts of the sentencing hearing, if still available, or any alternative
form of the record as permitted by App.R. 9. See State v. Kennedy (Dec. 9,
1993), Cuyahoga App. No. 64065. “Absent a complete and adequate record,
‘[a]n appellate court reviewing a lower court’s judgment indulges in a
presumption of regularity of the proceedings below.’” State v. Miller, Putnam
App. No. 12-10-13, 2011-Ohio-1459, ¶9 (holding it “must presume that the
trial court properly informed [defendant] of his right to appeal” where the
transcript of the sentencing hearing is not provided.)
{¶ 5} We note that defendant seeks the resentencing in order to “restart
the clock to file a timely appeal that was denied him twenty-three (23) years
ago by the ineffectiveness of his Juvenile counsel and Common Pleas court
counsel.” The record reflects that defendant has challenged the effectiveness
of his counsel as well as the validity of his pleas through the numerous
motions and petitions he has filed throughout the years in the underlying
cases. The trial court denied these motions and petitions and defendant did
not pursue the matters on appeal.
{¶ 6} For the above reasons, the trial court did not err by denying
defendant’s motion for resentencing and this assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant's
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MELODY J., STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR