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Date: 05-21-2020

Case Style:

STATE OF OHIO vs- ELMER HARVEY

Case Number: CT2019-0062

Judge: Patricia A. Delaney

Court: COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: D. MICHAEL HADDOX
TAYLOR P. BENNINGTON

Defendant's Attorney:

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A statement of the facts underlying appellant’s convictions upon two counts
of rape is not necessary to our resolution of this appeal.
{¶3} Appellant was charged with four counts of rape pursuant to R.C.
2907.02(A)(2) and one count of kidnapping pursuant to R.C. 2905.01(A)(4), all felonies
of the first degree, and entered pleas of not guilty. Counsel was appointed to represent
appellant.
{¶4} On May 26, 2015, appellant withdrew his previously-entered pleas of not
guilty and entered pleas of guilty to two counts of rape pursuant to R.C. 2907.02(A)(2),
both felonies of the first degree. Appellant’s guilty pleas were entered pursuant to a
negotiated plea agreement whereby appellee agreed to dismiss the remaining counts at
sentencing. Further, appellee agreed to recommend a prison term of 6 years. The trial
court found appellant guilty and classified him as a Tier III sex offender.
{¶5} The matter was continued for sentencing pending completion of a presentence investigation (P.S.I.). On July 8, 2015, appellant appeared for sentencing and
the trial court imposed two prison terms of 8 years each, to be served concurrently. The
remaining counts were dismissed.
{¶6} Appellant did not directly appeal from his convictions and sentence.
Muskingum County, Case No. CT2019-0062
3
{¶7} On June 21, 2019, appellant filed a Motion to Withdraw Plea, arguing the
trial court failed to inform him that his prison terms were mandatory.
{¶8} On July 2, 2019, appellee moved the trial court for an extension to respond
to appellant’s motion, noting that a transcript of the plea hearing had been requested and
would not be ready by the trial court’s deadline.
{¶9} On July 5, 2019, the trial court overruled appellant’s motion to withdraw
plea. However, on July 10, 2019, the trial court granted appellee’s motion to extend the
response time and set a new deadline for appellee’s response of August 5, 2019.
{¶10} On July 18, 2019, appellant filed a Notice of Appeal from the trial court’s
entry of July 5, 2019. With the Notice of Appeal was filed a “Statement, Praecipe, and
Notice to the Court Reporter” stating the following in pertinent part regarding the record:
* * * *. “It is my understanding that the State of Ohio has recently requested a copy of the
proceedings from my plea and sentencing hearing, please forward me a copy of such.” *
* * *.
{¶11} The transcripts, if any, of the change-of-plea and sentencing hearings have
not been filed in the instant appeal by either party. A note is in the record to appellant
from the Muskingum County Clerk of Court stating that the Clerk advised appellant that
the transcripts were due by August 27, 2019 and had not yet been filed because no
“motion for transcripts at state’s expense” was filed.
{¶12} Appellant now appeals from the trial court’s judgment entry of July 5, 2019.
Muskingum County, Case No. CT2019-0062
4
{¶13} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶14} “APPELLANT SUBMITS FOR REVIEW THAT HIS GUILTY PLEA WAS
NOT KNOWINGLY AND INTELLIGENTLY ENTERED SINCE THE TRIAL COURT
FAILED TO ADVISE HIM THAT THE RAPE OFFENSES CARRIED A MANDATORY
PRISON SENTENCE AND THE TRIAL COURT FAILED TO EXPRESSLY INFORM THE
APPELLANT THAT HE WAS SUBJECT TO A MANDATORY PRISON SENTENCE AND
WAS NOT ELIGIBLE FOR JUDICIAL RELEASE.”
ANALYSIS
{¶15} Appellant argues the trial court should have granted his motion to withdraw
his guilty pleas. Because the record is incomplete and appellant did not appeal from a
final appealable order, we disagree and dismiss this appeal as premature.
{¶16} Appellant asserts that the trial court failed to advise him that his prison terms
upon two counts of rape were mandatory pursuant to R.C. 2929.13(F)(2) [“* * *[T]he court
shall impose a prison term * * * for any of the following offenses: [a]ny rape * * *.”]
Appellant provided the sentencing entry of the trial court stating “Prison term mandatory
– NO.”
{¶17} It is not apparent from the record why, or if, the prison terms for Counts II
and III are non-mandatory as stated in the entry. We cannot determine this issue upon
the record as filed by appellant because the transcripts of the change-of-plea and
sentencing hearings are not before us. He asked this Court to “take judicial notice” that
appellee ordered transcripts, however, appellant failed to timely move for transcripts at
state expense and failed to file transcripts of the relevant hearings. In reviewing assigned
Muskingum County, Case No. CT2019-0062
5
error on appeal we are confined to the record that was before the trial court as defined in
App.R. 9(A). This rule provides that the record on appeal consists of “[t]he 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” (emphasis added). App.R. 9(B) also provides in part “ * * *[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.”
Appellant argues that appellee mentioned transcripts in a motion for extension to file
appellee’s brief, but the responsibility of filing the record is appellant’s. In Knapp v.
Edwards Laboratories the Ohio Supreme Court stated: “The duty to provide a transcript
for appellate review falls upon the appellant. This is necessarily so because an appellant
bears the burden of showing error by reference to matters in the record.” 61 Ohio St.2d
197, 199, 400 N.E.2d 384 (1980).
{¶18} Based upon the record before us, the trial court’s ruling below are
inconsistent; the trial court overruled appellant’s motion to withdraw his plea and
permitted appellee’s request for an extension to obtain the transcripts and set a new
deadline. Prior to that deadline, appellant filed the instant pro se appeal.
{¶19} It appears that the instant appeal is not, therefore, from a final appealable
order. The trial court did not have the record of the relevant hearings before it, nor the
response of appellee, and set a deadline of August 5, 2019 for those reasons. We are
unable to properly review the trial court’s decision of July 5, 2019, which is not a final
appealable order and is inconsistent with the trial court scheduling a later deadline.
Muskingum County, Case No. CT2019-0062
6
{¶20} Accordingly, this Court is without jurisdiction to review the July 5, 2019
Judgment Entry of the Muskingum County Court of Common Pleas overruling the motion
to withdraw guilty plea.
{¶21} Therefore, we dismiss this appeal as premature.
{¶22} Appeal dismissed

Outcome: Appellant’s assignment of error is overruled and the instant appeal is
dismissed.

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