[Cite as State v. Brown, 2017-Ohio-8997.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 17CA55
DAVID MICHAEL BROWN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
2017CR0269
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 11, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP DAVID M. WATSON
Richland County Prosecuting Attorney 3 North Main Street, Suite 702
38 South Park Street Mansfield, OH 44902
Mansfield, OH 44902
[Cite as State v. Brown, 2017-Ohio-8997.]
Gwin, P.J.
{¶1} Appellant David Michael Brown appeals the May 16, 2017 sentencing entry
of the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} On May 9, 2017, Brown pled guilty to one count of Having Weapons While
Under Disability, in violation of R.C. 2923.13(A)(3), which was filed by information. Brown
and the state agreed to a nine-month prison sentence, consecutive to his postrelease
control (PRC) time.
{¶3} The trial court sentenced Brown to nine months prison consecutive the
imposition of 487 days post release control time.
Assignment of Error
{¶4} Brown raises one assignment of error,
{¶5} “I. THE TRIAL COURT ERRED BY IMPOSING 487 DAYS OF POST
RELEASE CONTROL TIME.”
Law and Analysis
{¶6} Brown claims that the trial court in Richland County Court of Common
Pleas, Case No. 2002 CR 497 and 2002 CR 573 failed to properly notify Brown that as a
part of his sentence he would be subject to a mandatory five years of post-release control
upon release from prison. Brown contends that after serving less than nine years in
prison, the trial court granted him judicial release during which Brown violated the terms
and conditions of probation. Brown argues that a trial court's failure to correctly impose
postrelease control before a defendant completes his sentence renders the parole
board's authority to impose post-release control a nullity.
Richland County, Case No. 17CA55 3
{¶7} In State v. Grimes, the Ohio Supreme Court held,
We hold that to validly impose post-release control when the court
orally provides all the required advisements at the sentencing hearing, the
sentencing entry must contain the following information: (1) whether post-
release control is discretionary or mandatory, (2) the duration of the postre-
lease-control period, and (3) a statement to the effect that the Adult Parole
Authority (“APA”) will administer the post-release control pursuant to R.C.
2967.28 and that any violation by the offender of the conditions of post-
release control will subject the offender to the consequences set forth in that
statute.
___ Ohio St.3d ___, 2017-Ohio-2927 (May 24, 2017), ¶1. The Supreme Court
further noted,
Grimes did not introduce a transcript of the hearing into the record,
so we must assume the regularity of the sentencing hearing. Natl. City Bank
v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000). Our holding is
limited to those cases in which the trial court makes the proper advisements
to the offender at the sentencing hearing. We reach no conclusion as to the
requirements for sentencing entries in cases in which notice at the
sentencing hearing was deficient.
___ Ohio St.3d ___, 2017-Ohio-2927 (May 24, 2017), ¶20.
{¶8} In the case at bar, the record does not contain the Judgment Entry of
Sentence and Conviction from Richland County Court of Common Pleas, Case No. 2002
Richland County, Case No. 17CA55 4
CR 497 and 2002 CR 573. Nor has the transcript of the sentencing in those cases been
filed and made a part of the record in this case on appeal.
{¶9} As was true in Grimes, this court must therefore, “assume the regularity of
the sentencing hearing. Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d
711 (2000).” Grimes at ¶20.
{¶10} Although the state has attached unverified copies of the judgment entries in
the prior cases to its brief filed in this case, the exhibits attached to the state’s brief were
not filed in the trial court in the underlying action and were not included in the record on
appeal. An appellant has the burden of showing the trial court erred based on reference
to matters in the record. State v. Ray, 181 Ohio App.3d 590, 2009–Ohio–1395, 910
N.E.2d 34, ¶ 29 (5th Dist.). App.R. 9(A)(1) limits appellate records to 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.” Documents attached to an
appellate brief are not properly part of the appellate record, and we cannot consider an
attachment unless it appears in the trial court's record. Id.; Willis v. Ohio Dept. of Transp.,
4th Dist. Lawrence No. 15CA13, 2016–Ohio–1593, 50 N.E.3d 581, fn. 1 , citing Dagostino
v. Dagostino, 165 Ohio App.3d 365, 2006–Ohio–723, 846 N.E.2d 582 (4th Dist.), fn. 2.
In State v. Hooks, the Supreme Court noted:
A reviewing court cannot add matter to the record before it that was
not a part of the trial court’s proceedings, and then decide the appeal on the
basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377
N.E.2d 500(1978).
Richland County, Case No. 17CA55 5
92 Ohio St.3d at 93-94, 2001–Ohio–150, 748 N.E.2d 528. It is also a longstanding
rule “that the record cannot be enlarged by factual assertions in the brief.”
Dissolution of Doty v. Doty, 4th Dist. Pickaway No. 411, 1980 WL 350992 (Feb.
28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55,
59, 201 N.E.2d 227(10th Dist. 1963).
{¶11} In the case at bar, the record does not contain a transcript of the sentencing
hearings conducted by the trial court in the prior cases or properly authenticated
sentencing entries. Without a complete record of the hearings and the judgment entries
filed in those cases having been filed in the trial court or made a part of the record on
appeal, we presume that the omitted hearings and entries support the trial court’s decision
and that the trial court’s sentencing on the charge in the case at bar complies with
applicable rules and sentencing statutes. See, State ex rel. County of Cuyahoga v. Jones
Lang Lasalle Great Lakes Co., ____ Ohio St.3d ____, 2017-Ohio-2927(Sept. 21, 2017),
¶5.
{¶12} A trial court can take judicial notice of the court's docket. Helfrich v.
Madison, 5th Dist. Licking No. 08-CA-150, 2009-Ohio-5140, ¶49. However, a court does
not have the authority to take judicial notice of the proceedings in another case, including
its own judgment entries. Id., citing State v. LaFever, 7th Dist. Belmont No. 02 BE 71,
2003-Ohio-6545, ¶27; State v. Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241,
¶17; Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision, 7 Ohio App.3d
157, 454 N.E. 2d 1330 (4th Dist. 1982); NorthPoint Properties, Inc. v. Petticord, 179 Ohio
App.3d 342, 901 N.E.2d 869, 2008-Ohio-5996 (8th Dist.), ¶16. The rationale for this
holding is that if a trial court takes notice of a prior proceeding, the appellate court cannot
Richland County, Case No. 17CA55 6
review whether the trial court correctly interpreted the prior case because the record of
the prior case is not before the appellate court. Id., citing Blaine, supra, ¶ 17; LaFever,
supra, ¶ 27.
{¶13} This Court is not authorized to review materials that are not part of the
official record. We are forced to conclude that there is no reviewable evidence in the
record to demonstrate that in Richland County Court of Common Pleas Case Nos. 2002
CR 497 and 2002 CR 573 the trial court did not orally provides all the required
advisements at the sentencing hearing and/or that the sentencing entries did not contain
the following information: (1) whether post-release control is discretionary or mandatory,
(2) the duration of the post-release control period, and (3) a statement to the effect that
the Adult Parole Authority (“APA”) will administer the post-release control pursuant to R.C.
2967.28 and that any violation by the offender of the conditions of post-release control
will subject the offender to the consequences set forth in that statute. State v. Grimes,
supra.
Richland County, Case No. 17CA55 7
{¶14} Brown’s sole assignment of error is overruled.
{¶15} The Judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur
State v. Brown
Combined Opinion