[Cite as State v. Sheppard , 2011-Ohio-3516.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. KELSEY L. SHEPPARD Appellant C.A. No. 10CA0041-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 09CR0517

DECISION AND JOURNAL ENTRY Dated: July 18, 2011

BELFANCE, Presiding Judge. {¶1} Appellant Kelsey L. Sheppard appeals from the judgment of the Medina County

Court of Common Pleas. This Court affirms.

I. {¶2} Ms. Sheppard pleaded no contest and was convicted on a single charge of theft from an elderly person, a third-degree felony. At the sentencing hearing, th e trial court permitted

the victim to address th e court and defense counsel did not object. The victim, Ms. Lakowski, stated that Ms. Sheppard had lied and “told [Ms. Lakowski] that [Ms. Sheppard] had HIV with only six months to live and that her family had di sowned her.” Ms. Lakowski stated that while she and her family were spending money on Ms. Sheppard, Ms. Sheppard stole from her. She requested that Ms. Sheppard receive the maximum sentence, which was five years. R.C. 2929.14(A)(3).2

{¶3} The trial court sentenced Ms. Sheppard to a one-year prison term. Ms. Sheppard appeals from that judgment, presen ting two assignments of error.

II.

ASSIGNMENT OF ERROR I “Appellant, Kelsey L. She ppard, was denied her Si xth Amendment right to effective assistance of counsel, to her prejudice.” {¶4} In her first assignment of error, Ms. Sheppard asserts that she was denied effective assistance of counsel during he r sentencing. This Court disagrees. {¶5} Courts apply a two-part test in determining whether a criminal defendant was

denied effective counsel. A de fendant “must show (1) deficien t performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for couns el’s errors, the proceeding’s result would have

been different.” State v. Mundt , 115 Ohio St.3d 22, 2007-Ohio-4836, at ¶62, citing Strickland v. Washington (1984), 466 U.S. 668, 687-688, 694. {¶6} Ms. Sheppard challenges her counsel’s fa ilure to request a continuance after the trial court allowed Ms. Lakowski, during the sentencing hearing, to make a statement at the sentencing hearing in which Ms. Lakowski allegedly articulated new material facts. R.C. 2930.14(A) requires the court to pe rmit a victim statement before imposing sentence, but R.C. 2930.14(B) provides that “[i]f the statement includes new material facts, th e court shall not rely

on the new material facts unless it continues the sentencing * * * or takes other appropriate action to allow the defendant * * * an adequate op portunity to respond to the new material facts.” Ms. Sheppard argues that she was prejudiced by he r counsel’s failure to request an opportunity to respond to the new material facts articulat ed in Ms. Lakowski’s statement.3

{¶7} The trial court received and considered a pr esentence investigation report. This report has not been included in the record befo re us, and, therefore, we do not know what the contents of the report were. As we do not know what was in the report, we cannot determine whether the victim’s statements constituted new material facts. Presentence investigations may

include interviews with the victim. R.C. 2930.13(B) (if a probation officer prepares a presentence investigation report, the victim may make a written or oral statement and the probation officer shall use the statement in preparing the report). Accordingly, the statements made by the victim at Ms. Sheppard’s sentencing hearing could well have been in the report and

thus would not constitute new material facts. Thus, we cannot determine whether counsel was ineffective for not requesting a continuance. {¶8} Further, Ms. Sheppard has not ar gued how she was prejudiced. See Mundt at ¶62, citing Strickland , 466 U.S. at 687-88, 694. She does not allege that the victim’s statements were not true and she does not set forth any actions sh e would have taken had her counsel requested a continuance or sought the opportunity to respond to the allegedly new facts. We observe that any evidence supporting her argument that she wa s prejudiced would likely take the form of

affidavits or other evidence that would be out side the record on appeal, making postconviction relief the more appropriate avenue for her to seek relief. {¶9} Ms. Sheppard has failed to meet either prong of the ineffective assistance of counsel test. Her first assign ment of error is overruled.

ASSIGNMENT OF ERROR II “The Trial Court erred to the prejudice of Appellant, Kelsey L. Sheppard when, after wrongfully considering new material facts provided for in the victim’s statement at sentencing in violation of Ohio Revised Code section 2930.14(B), it imposed a one (1) year prison term rather than sentencing Ms. Sheppard to a period of probation and ordering restitution based on the absence of a prior criminal record and her mental issues identified in the pre-sentence investigation report.”4

{¶10} Ms. Sheppard asserts, in her second assignment of error, that the trial court imposed a sentence that was contrary to law and that the trial court abused its discretion in imposing a prison sentence of one year. {¶11} This Court applies a two part test when reviewing sentencing. State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26. Firs t, the Court must “examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-ofdiscretion standard.” Id. {¶12} Ms. Sheppard argues that her sentence is clearly and convincingly contrary to law because, at sentencing, the court considered ne w material facts introduced in Ms. Lakowski’s statement, as prohibited by R.C. 2930.14(B). As discussed above, in the absence of the presentence investigation report, we cannot conc lude that Ms. Lakowski’s statement contained new material facts. Accordingly, we cannot conc lude that the trial cour t failed to comply with R.C. 2930.14(B). {¶13} Further, even if the trial court did not comply with R.C. 2930.14(B), Ms. Sheppard has not cited any aut hority supporting her argument that this would render her sentence clearly and convincingly contrary to law. See App.R. 16(A)(7). In Kalish , the Supreme Court determined that a sentence is not clearly and convincingly contrary to law when the sentence is within the permissible range, postrelease control is properly imposed, and the trial court considered purposes and principles of R.C. 2929.11 and the factors listed in R.C. 2929.12. Id. at ¶18. Beyond her unsupported argu ment concerning R.C. 2930.14, Ms. Sheppard does not argue that her sentence was clearly and convincingly contra ry to law. Because her sentence is within5

the statutory range for a third-degree felony, be cause the trial court properly imposed postrelease control, and because the trial court considered th e principles of felony sentencing, we conclude that Ms. Sheppard’s sentence is not clea rly and convincingly contrary to law. {¶14} Ms. Sheppard argues that the trial court abused its discretion in imposing a oneyear prison term, citing facts contained, apparently, in the presentence investigation report. The transcript of the sentencing indicates that the trial court did consider the presentence investigation report prior to sentencing Ms. Shep pard. The report, however, was not included in

the record before this Court. Because we are unable to review the report, we cannot conclude that the trial court abused its discretion in imposing the one-year sentence. State v. Hultz , 9th Dist. No. 07CA0043, 2008-Ohio-4153, at ¶13. {¶15} Ms. Sheppard has not demonstrated that her one-year prison term was clearly and convincingly contrary to law or th at the trial court abused its disc retion. Accordingly, her second assignment of error is overruled.

III. {¶16} Ms. Sheppard’s assignments of error ar e overruled, and the judgment of the Medina County Court of Co mmon Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.6

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

WHITMORE, J. CONCURS CARR, J. CONCURS IN JUDGMENT ONLY

APPEARANCES: ROBERT B. CAMPBELL, Attrorney at Law, for Appellant. DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant Prosecuting Attorney, for Appellee.