State v. Reynolds
| Decision Date | 27 December 2022 |
| Docket Number | 12-22-07 |
| Citation | 2022 Ohio 4690 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMES ROBERT REYNOLDS, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Timothy J. Hoover for Appellant
Todd C. Schroeder for Appellee
{¶1} Defendant-appellant, James Robert Reynolds ("Reynolds"), appeals the June 28, 2022 judgment of sentencing of the Putnam County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On September 22, 2021, the Putnam County Grand Jury indicted Reynolds on three criminal charges including Count One for escape in violation of R.C. 2921.34(A)(1), (C)(2)(b), a third-degree felony; Count Two for domestic violence in violation of R.C. 2919.25(A), (D)(3), a fourth-degree felony and Count Three of vandalism in violation of R.C 2909.05(B)(2), (E). On September 27, 2021, Reynolds appeared for arraignment and entered not-guilty pleas.
{¶3} However, on May 16, 2022, Reynolds entered guilty pleas under a negotiated-plea agreement. The negotiated-plea agreement between Reynolds and the State provided that, in exchange for Reynolds's guilty pleas and his agreement to pay $447.00 in restitution to the Fort Jennings Police Department, the State agreed to amend Count One to attempted escape in violation of R.C. 2923.02(A) and 2921.34(A)(1), a fourth-degree felony; to amend Count Two to domestic violence in violation of R.C. 2919.25(A), a first-degree misdemeanor; and to dismiss Count Three.[1] Furthermore, the State agreed to defer to the trial court as to the sentence and imposition of any judicial sanction for the post-release-control violation. The trial court conducted its Crim.R. 11 colloquy accepting Reynolds's guilty pleas, found him guilty, and ordered a presentence investigation.
{¶4} On June 27, 2022, the trial court sentenced Reynolds to a 17-month definite prison term under Count One, and he was given 301 days jail-time credit. Then, the trial court sentenced Reynolds to 180 days in jail under Count Two giving him 180 days of jail-time credit, which resulted in time served. Next, the trial court acknowledged that Reynolds was on post-release control in Paulding County in case number CR18670 at the time he was convicted and sentenced under Count One, a new felony. Thereafter, the trial court terminated Reynolds's term of post-release control under R.C. 2929.141 and imposed his remaining 398 days (of post-release control) as a judicial sanction. The trial court then ordered the 17-month prison term under Count One to be run consecutively to the 398 days imposed under postrelease control.
{¶5} Reynolds filed a timely notice of appeal and raises one assignment of error for our review.
The trial court denied Appellant due process of law in imposing the judicial sanction pursuant to Section 2929.141 of the Ohio Revised Code.
{¶6} In his assignment of error, Reynolds argues the trial court denied him due process of law by imposing a prison term for his violation of post-release control. In his brief, however, Reynolds challenges the trial court's use of a letter, from the Adult Parole Authority ("APA"), arguing that such letter is not contained in the record, but was utilized by the trial court to calculate its judicial sanction imposed pursuant to R.C. 2929.141.
{¶7} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence "only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that "'which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.'" Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶8} Notably, Reynolds did not raise an objection at his sentencing hearing in the trial court on due-process grounds. Rather, in the trial court, Reynolds asserted that he was entitled to an additional 80-day reduction in the judicial sanction based upon a discrepancy between the trial court's and his trial counsel's calculations. Thus, appellant's failure to raise this issue in the trial court constitutes a forfeiture of that issue absent plain error. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23. {¶9} Crim.R. 52(B) governs plain error in criminal cases. The Supreme Court of Ohio has held that "'the plain error rule is to be invoked only in exceptional circumstances to avoid a miscarriage of justice.'" State v. Long, 53 Ohio St.2d 91, 95 (1978), quoting United States v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971), citing Eaton v. United States, 398 F.2d 485, 486 (5th Cir. 1968). Because Reynolds did not object in the trial court on due-process grounds, we apply the plain-error rule to the facts before us.
{¶10} As an initial matter, we must address the State's attachment of a document captioned "Special Minutes - R/W/A/L PRC" as an appendix to its brief offering an explanation for the disputed 80 days in the post-release-control calculations.[2] "To determine whether a trial court's sentence is appropriate, an appellate court's review is limited to (1) the pre-sentence investigation report (PSI); (2) the record from the trial court; and (3) any oral or written statements made to or by the court at the sentencing hearing." State v Hale, 3d Dist. Marion No. 9-13-17, 2014-Ohio-262, ¶ 30 (Rogers, J. concurring in part and dissenting in part), citing R.C. 2953.08(F) and State v. Tolliver, 9th Dist. Wayne No. 03CA0017, 2003-Ohio-5050, ¶ 24. See also R.C. 2929.19(A). Significantly, the appendix of a brief is not considered part of the record on appeal. See State v. Burgett, 3d Dist. Marion No. 9-10-37, 2010-Ohio-5945, ¶ 30; App.R. 9(A). Moreover "[i]t is well established, [] that '"'[a] reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.'"'" State ex rel. Municipal Construction Equipment Operators' Labor Council v. Cleveland, 162 Ohio St.3d 195, 2020-Ohio-3197, ¶ 19, quoting State ex rel. Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, ¶ 20, quoting State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730 (1995), quoting State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. Consequently, we cannot and will not consider the "Special Minutes - R/W/A/L PRC" submitted by the appellee.
{¶11} We now turn to Reynolds's argument that the trial court denied him due process of law in imposing the judicial sanction under R.C. 2929.141. Even though Reynolds's assignment of error mentions due process, there is absolutely no argument regarding due process in his brief. Put more plainly-Reynolds fails to identify whether he is challenging substantive- or procedural-due process; fails to set forth a standard of review; fails to discuss the law regarding due process; and fails to argue facts and cases that support his due-process argument. Rather, Reynolds challenges the trial court's reference to Thomas Stafford's ("Stafford") letter, Reynolds's parole officer, at his sentencing hearing when conversing with Reynolds's trial counsel regarding the calculation of Reynolds's maximum-prison term under R.C. 2929.141(A)(1). Reynolds asserts that the letter was outside the record. As such, Reynolds is challenging the amount of post-release control imposed as a judicial sanction.
{¶12} Importantly, App.R. 12(A)(1)(b) provides that we must "[determine [an] appeal on its merits on the assignments of error set forth in the briefs" under App.R. 16. Consequently, App.R. 16(A)(7) obligates the appellant to include within his or her brief "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." Further, App.R. 12(A)(2) provides that we "may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A)." Because Reynolds set forth no argument regarding due process in this assignment of error, we need not address whether he was denied due process. See State v. Baker, 12th Dist. Butler No. CA2021-10-133, 2022-Ohio-3271, ¶ 13-14; State v. McClendon, 12th Dist. Fayette No. CA2021-09-021, 2022-Ohio-1441, ¶ 24; State v. Constable, 12th Dist. Clermont No. CA2006-12-107, 2007-Ohio-6570, ¶ 5-8. Moreover, since Reynolds failed to craft a plain-error argument, on appeal, we decline to fashion one for him.
{¶13} Notwithstanding our conclusion, we acknowledge that the trial court may have reviewed several letters at Reynolds's sentencing hearing that were outside of what would constitute the record (on appeal). Nevertheless, we acknowledge that those letters were discussed by the trial court and Reynolds's trial counsel on the record, and in open court, even though none were admitted as exhibits. See R.C. 2929.19(A), (B)(1)(a).
{¶14} Importantly, the trial court is permitted to consider any information presented at the sentencing hearing by any person provided it is with the approval of the trial court, and the offender is afforded the opportunity to address the trial court, as Reynolds was in the instant case.[3] See RC 292919(...
To continue reading
Request your trial