State v. Durr
| Decision Date | 06 March 2019 |
| Docket Number | Case No. 18CA78 |
| Citation | 2019 Ohio 807 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JERROD DURR Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P. J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, J.
For Plaintiff-Appellee
GARY BISHOP
Prosecuting Attorney
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
For Defendant-Appellant
JERROD DURR Pro Se
Box 8107
Mansfield, OH 44905
{¶1} Defendant-appellant Jerrod David Durr ["Durr"] appeals the November 26, 2018 judgment entry of the Richland County Court of Common Pleas that denied his petition for post-conviction relief without a hearing.
{¶2} On May 4, 2018, Durr was indicted with three counts of passing bad checks, felonies of the fifth degree and one count of identification fraud, a felony of the fourth degree. At the time that Durr was indicted he was serving a twenty-four month prison sentence out of Huron County for identification fraud and forgery concurrent to a twenty-month sentence from Ottawa County for passing bad checks and forgery.
{¶3} On July 23, 2018, Durr appeared in court with counsel and entered a guilty plea to the charges as indicted2.
{¶4} The admission of guilt judgment entry filed July 24, 2018 indicates that Durr understood that no promises had been made as a part of the plea other than the handwritten interlineation,
{¶5} On August 20, 2018, Durr was before the trial court for sentencing. He was sentenced to fifteen months in prison on the count of identify fraud to be served consecutive to his existing sentences from Huron and Ottawa County. He was sentenced to two years of community control on Counts 1, 2 and 4 to begin upon his release from prison.
{¶6} On August 30, 2018, Durr filed his motion for post-conviction claiming that the sentences in the Richland County case were to run concurrent not consecutively to the sentence in the Huron County case. Motion: Post Conviction Relief Motion to Correct Improper Sentence, filed Aug. 30, 2018. [Docket Number 48]. No affidavits or Exhibits were attached to Durr's motion. The state filed a response on September 4, 2018. [Docket Number 49]. On September 17, 2018, Durr filed Defendants' Response in Response to States [sic.] Opposition to Petition for Post-Conviction Relief. Durr attached his affidavit, a letter from his trial counsel dated August 30, 2018, a letter from his trial attorney dated August 9, 2018 and a letter from his trial attorney dated June 19, 2018. Durr argued that the evidence dehors the record established that he understood through his attorney that the term of incarnation in the Richland case would be sentenced concurrently to the Huron County case. Defendants' Response in Response to States [sic.] Opposition to Petition for Post-Conviction Relief, filed Sept. 17, 2018 at 2. [Docket Number 53].
{¶7} On September 11, 2018, Durr filed a motion for jail time credit. That motion was denied on September 27, 2018.
{¶8} By Judgment Entry filed November 26, 2018, the trial court issued Findings of Facts and Conclusions of Law overruling Durr's Petition for Post-Conviction Relief.
{¶9} Durr's request for appointed counsel to file an appeal was denied by Judgment Entry filed November 27, 2018. [Docket Number 57].
{¶10} We note Durr did not separately present Assignments of Error in his brief. Under App.R. 16(A)(3), the brief shall contain "[a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected." Admiral Ins. Co. v. Seifert Techs., Inc., 5th Dist. Stark No. 2011CA00002, 2011-Ohio-5196, ¶ 34.
Pro se Appellants
{¶11} We understand that Durr has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted). We note that the underlying action was a criminal case. Durr requested appointed counsel; however, a Petition for Post-Conviction Relief is a civil matter. An indigent criminal defendant has neither a federal nor a state constitutional right to be represented by an attorney in a post-conviction relief proceeding. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539(1987); State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652(1991).3 However, when a person is convicted of a criminal offense and claims that his or her constitutional rights were violated, the person, pursuant to R.C. 2953.21, may petition the court that imposed the sentence and request that the court vacate or set aside the judgment or sentence. Crowder, 60 Ohio St.3d at 153, 573 N.E.2d 652. Therefore, apetition for post-conviction relief is a means to reach constitutional issues that would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000 WL 1877526(Dec. 26, 2000); Accord, State v. Zich, 6th Dist. Lucas No. L-15-1263, 2017-Ohio-414, ¶9.
{¶12} Accordingly, this is not a typical civil case for monetary damages in which an appellant has chosen to represent himself. Under these circumstances, an indigent appellant is given no other choice then to file an appeal pro se. Therefore, it seems unduly harsh to hold that a litigant who wishes to challenge the trial court's ruling, but who is lacking the financial resources to hire an attorney to file an appeal from the denial of his or her Petition for Post-Conviction Relief, is bound by the same rules and procedures as those litigants who can afford to retain counsel.
{¶13} In the case at bar, there is at least some semblance of compliance with the appellate rules. "[I]t is a fundamental tenet of judicial review in Ohio that courts should decide cases on the merits." DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189,192 431 N.E.2d 644(1982), citing Cobb v. Cobb, 62 Ohio St.2d 124, 403 N.E.2d 991(1980). We can sufficiently discern the facts supporting Durr's argument from the record in this matter. Therefore, in the interests of justice, we shall attempt to consider Durr's argument.
Failure to File transcript with the Trial Court
{¶14} However, we first must address Durr's failure to present a transcript to this Court of his plea hearing and his sentencing hearing.
{¶15} Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980), citing State v. Skaggs, 53 Ohio St.2d 162, 163, 372 N.E.2d 1335(1978). This requirement is set forth in App.R. 9(B), which provides, in pertinent part, as follows: "*** the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record * * *." Further, "[w]hen portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp, 61 Ohio St.2d at 199, 400 N.E.2d 384.
{¶16} In the case sub judice, Durr did not meet his burden, under App.R. 9(B), and supply this Court with a transcript of the proceedings from his original plea and the original sentencing hearings. If such transcript were unavailable, other options were available to Durr in order to supply this Court with a transcript for purposes of review. Specifically, under App.R. 9(C), Durr could have submitted a narrative transcript of the proceedings, subject to objections from appellee and approval from the trial court. Also, under App.R. 9(D), the parties could have submitted an agreed statement of the case in lieu of the record. The record in this matter indicates Durr did not attempt to avail himself of either App.R. 9(C) or 9(D).
{¶17} "When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 at 199, 400 N.E.2d 384. If a partial record does not conclusively support the trial court's decision, it is presumed that the omitted portion provides the necessary support. Knapp, 61 Ohio St.2d at 199, 400 N.E.2d 384.
I.
{¶18} After reviewing Durr's brief including his contentions, we have interpreted Durr's assignment of error in the following manner: The trial court erred in overruling Durr's Petition for Post-Conviction Relief without a Hearing.
Standard of Appellate Review - Post-conviction relief.
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