[Cite as State v. Little, 2014-Ohio-1342.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2012-L-093

 - vs - :

JEFFREY M. LITTLE, :

 Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 

11CR000740. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 

Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 

44077 (For Plaintiff-Appellee). 

Aaron T. Baker, 38109 Euclid Avenue, Willoughby, OH 44094 (For DefendantAppellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Jeffrey M. Little, appeals his conviction, following a guilty plea, 

to two counts of robbery. Appellant argues the trial court erred in continuing his 

sentencing hearing to make findings in support of his consecutive sentences because 

the record does not show he was present at the continued hearing. At issue is whether 

the record shows that appellant was not present at his sentencing hearing. For the 

reasons that follow, we affirm. 
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{¶2} On March 9, 2012, appellant was charged by information with two counts 

of robbery, each being a felony of the second degree, in violation of R.C 2911.02(A)(2). 

Appellant and the state entered a plea bargain pursuant to which appellant would plead 

guilty to both counts and the state would recommend no more than ten years in prison. 

On March 23, 2012, appellant waived his right to prosecution by indictment, and 

requested that he be charged by information. On the same date, appellant pled guilty to 

both counts of robbery. The trial court found that appellant’s guilty plea was voluntarily 

entered; accepted his plea; found him guilty of both charges of robbery; and deferred 

sentencing for a pre-sentence report. 

{¶3} The record reflects that on November 8, 2011, at about 11:30 p.m., the 

victims Sara Mooney and Stephanie Vivod were standing in front of a restaurant in 

downtown Willoughby when appellant walked passed them. The two women walked 

across the street to Ms. Vivod’s car. While they were talking, appellant approached 

them and said, “I don’t want to have to hurt you, give me your purses.” As appellant 

walked toward Ms. Vivod, she ran away from him and appellant chased her in the 

middle of the street. Appellant yelled out to her, “I’ll cut you.” At that point, Ms. Mooney 

saw appellant pull out a knife. She shouted to Ms. Vivod, “run, he’s got a knife.” Ms. 

Vivod took off running and appellant then began chasing Ms. Mooney. A truck suddenly 

approached the scene and appellant fled down a nearby alley. 

{¶4} Later that same night, at about 1:00 a.m., on November 9, 2011, appellant 

approached the victim Vince Canganelli outside a restaurant in nearby Willoughby Hills. 

Appellant pulled out a knife and placed the blade up to Mr. Canganelli’s neck, 

demanding his wallet. Mr. Canganelli gave appellant his wallet containing $35 and 
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various credit and debit cards. Appellant then ran away. Later that night, appellant 

used Mr. Canganelli’s debit card to make purchases at Wal Mart, Walgreen’s, and a 

Shell gas station, totaling $1,200. 

{¶5} The court held appellant’s sentencing hearing on May 14, 2012. The 

record reflects that appellant and his attorney were present. Appellant’s counsel spoke 

on appellant’s behalf and requested a six-year sentence. Appellant also addressed the 

court, apologizing to the victims for his crimes. 

{¶6} The victim Stephanie Vivod testified that appellant threatened to cut her 

and chased her with a knife. She said that appellant’s crime has had such a huge 

impact on her, it will affect her for the rest of her life. She asked that the court impose 

the maximum sentence. 

{¶7} Consistent with the parties’ plea bargain, the prosecutor recommended 

that appellant be sentenced to a total of ten years in prison. 

{¶8} The court noted that in 1996, appellant was convicted of theft. In 1998, he 

was convicted of leaving the scene of an accident. Later that year, he was convicted of 

assault. In 2001, he was convicted of drug abuse. In 2002, he was convicted of 

domestic violence. Later in 2002, he was convicted of possession of drugs. In 2003, he 

was convicted of drug abuse. In 2005, he was convicted of robbery, a felony of the 

second degree, for which he was sentenced to four years in prison. He was released 

from prison in July 2009. Then, in January 2010, he was convicted of disorderly 

conduct. Later that year, he was convicted of contempt of court. The court noted that 

just two years after appellant was released from prison in 2009 for another robbery, he 

committed the robberies in this case. 
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{¶9} The court sentenced appellant to two mandatory six-year terms in prison 

for each count of robbery, the two terms to be served consecutively, for a total of 12 

years in prison. 

{¶10} Two days after the court imposed appellant’s sentence, on May 16, 2012, 

the court reconvened the parties for a continuation of the sentencing hearing for the 

court to make the statutory findings necessary to support appellant’s consecutive 

sentences. 

{¶11} After the court made these findings on the record, the court asked 

appellant’s counsel if he had any objections to this continued sentencing hearing or if he 

wanted the court to conduct “the whole sentencing hearing over again from beginning to 

end.” Appellant’s counsel said, “No, Your Honor.” 

{¶12} Appellant did not timely appeal. Subsequently, he filed a motion for leave 

to file a delayed appeal, which this court granted. He asserts the following for his sole 

assignment of error: 

{¶13} “The record does not demonstrate that appellant was present for the May 

16, 2012 sentencing hearing, and therefore, the trial court erred in sentencing appellant 

in absentia in violation of Crim.R. 43(A).” 

{¶14} Appellant argues that, because the record does not show he was present 

in court for the continuation of his sentencing hearing, the trial court erred in sentencing 

him. The argument fails for several reasons. 

{¶15} First, we note that the prosecutor in her brief unconditionally states that 

appellant was in fact present at the continued sentencing hearing on May 16, 2012. 

Further, appellant does not dispute that he was present at this hearing. 
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{¶16} Moreover, contrary to appellant’s argument, the record shows that 

appellant was present at the continued sentencing hearing. First, during that hearing, 

the trial court stated on the record that, “we are present once again,” indicating that the 

parties who were present at the May 14, 2012 sentencing hearing, which included 

appellant, were once again present for the May 16, 2012 continued hearing. Second, 

the court’s sentencing entry, filed after the May 16, 2012 hearing, states that appellant 

and his counsel were present in court for the sentencing. 

{¶17} Further, appellant fails to draw our attention to anything in the record 

showing appellant was not present at the continued sentencing hearing. Without an 

affirmative showing on the record that the trial court erred, the reviewing court must 

presume the validity of the trial court proceedings. State v. Bowens, 11th Dist. 

Ashtabula No. 89-A-1463, 1991 Ohio App. LEXIS 3792, *26 (Aug. 9, 1991). In Bowens, 

this court stated, “‘from what has been said about the presumption of validity and 

regularity of proceedings below, it has always been the Ohio rule, and still is, that error 

will not be presumed, but must be made to appear affirmatively on the record, or as it is 

sometimes stated, the burden is upon the appellant to show that error has occurred.’” 

Id., quoting 5 Ohio Jurisprudence 3d (1978) 114-115, Appellate Review, Section 554. 

{¶18} For the reasons stated in this opinion, the assignment of error is overruled. 

It is the judgment and order of this court that the judgment of the Lake County Court of 

Common Pleas is affirmed. 

DIANE V. GRENDELL, J., concurs, 

THOMAS R. WRIGHT, J., concurs with Concurring Opinion. 
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_______________________ 

THOMAS R. WRIGHT, J., concurs with Concurring Opinion. 

{¶19} I agree with the majority’s conclusion that appellant failed to demonstrate 

that he was not present at the continued sentencing hearing and that, therefore, we 

must presume the regularity of the proceedings and affirm. However, I disagree with 

the majority’s conclusion that the record establishes that appellant was actually present 

at the continued sentencing hearing. 

{¶20} While the majority correctly notes that at the beginning of the continued 

sentencing hearing the trial court stated, “we are present once again,” that does not 

show that appellant was actually present. The use of the word “we” is nebulous to say 

the least and its meaning and use in that context is anybody’s guess. “We” could mean 

the court, both counsel but no appellant, or the court, both counsel and appellant. 

Moreover, the judgment entry supporting the majority’s conclusion that appellant was 

present at the continued sentencing hearing misstates its content. The judgment entry 

does not even reference the continued sentencing hearing let alone state that appellant 

was present. To the contrary, the entry simply states, “This day, to-wit: May 14, 2012, 

this matter came on for [appellant’s] sentencing hearing * * *” and that appellant was 

present that day. To construe that entry as a statement that appellant was also present 

at the continued sentencing hearing is erroneous. The entry only states that appellant 

was present on May 14, which is not at issue. 

{¶21} Nevertheless, for the reasons stated, I concur.