[Cite as State v. Jackson , 2021-Ohio-3070.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

MARKUS L. JACKSON, Appellant. :

:

:

:

:

: CASE NO. CA2020-12-073

O P I N I O N 9/7/2021

CRIMINAL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case Nos. 20CR195; 20CR383

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nich olas A. Horton, Assistant Prosecuting Attorney, for appellee. Gossett & Associates, and Vivian L. Poe, for appellant.

M. POWELL, P.J. {¶ 1} Appellant, Markus Jackson, appeals his felony sentences in the Clermont County Court of Common Pleas. {¶ 2} This case involves two criminal cases. In Case No. 2020-CR-195 , appellant was indicted on two counts of robbery and one count of aggravat ed robbery, each with a repeat violent offender specification, one count of failure to comply with an order or signalClermont CA2020-12-073

- 2 - of a police officer ("failure to comply"), one count of theft, and one count of operating a vehicle while under the influence of alcohol or drug of abuse ( "OVI"). In Case No. 2020- CR-383, appellant was indicted on three counts of OVI, one coun t of cocaine possession, and one count of possession of fentanyl-related compound. The cases were consolidated at the state's request. {¶ 3} The charges stemmed from events that occurred on February 11, 2 020, during which appellant stole several clothing items from a Meij er store, and then robbed a Food Mart store by pointing a pellet gun into the face of a cas hier, cocking back the hammer of the gun, and demanding money. The record indicates that the pellet gun looked identical to a .357 revolver. Following the Food Mart robbery, a high-sp eed chase ensued during which appellant travelled up to 94 m.p.h. and ran a red light, nearly striking vehicles in the process, before he lost control and wrecked his vehicle. Polic e found cocaine and fentanylrelated compound in the vehicle. Appellant was arrested and su bsequently indicted as

detailed above. {¶ 4} On October 28, 2020, pursuant to plea negotiations, appellant p led guilty to one count of aggravated robbery, a felony of the first degree, one count of failure to comply, a felony of the third degree, and one count of OVI, a first-deg ree misdemeanor, in Case No. 2020-CR-195, and one count of possession of fentanyl-related co mpound, a felony of the fourth degree, in Case No. 2020-CR-383. The repeat violent off ender specifications and remaining counts in the two cases were dismissed. {¶ 5} A sentencing hearing was held on December 2, 2020. Appellant's counsel advised the trial court that appellant had no recollection of t he February 11, 2020 events, has significant mental health issues such as schizophrenia and bipolar disorder, and was self-medicating with drugs. Counsel noted that only appellant was injured in the incident and that the weapon he used was a BB gun. Counsel asked that a ppellant be sentencedClermont CA2020-12-073

- 3 - to prison for seven or eight years. Appellant advised the tria l court that he had spent most of his adult life in prison, that he had no recollection of wha t he did on February 11, 2020, "something just snapped," and that he was taking responsibility for his actions. Appellant recognized he had serious issues that needed to be addressed an d asked for leniency. {¶ 6} The state advised the trial court that although the weapon used by appellant was not a real firearm, it was indistinguishable from a .357 re volver, and in fact, it took some time for police to realize it was not a real firearm. The stat e further advised the court that the incident so impacted the Food Mart cashier that she had to change jobs and move. The state noted that although appellant had been out of prison for nearly eight years at the time of the incident, he had nonetheless been convicted of numerous misdemeanor offenses during that period of time. The state asked that the trial cou rt impose a lengthy period of incarceration, in part to protect the public from appellant "sn apping" again. {¶ 7} The trial court sentenced appellant to 36 months in prison for the failure to comply offense, 18 months in prison for the possession of fenta nyl-related compound offense, and 180 days in jail for the OVI offense. The trial c ourt further sentenced appellant to an indefinite prison term of 10 to 15 years for the aggravat ed robbery offense. The trial court ordered that the terms for the OVI, possession of fentany l-related compound, and failure to comply be served concurrent to one another, but cons ecutive to the sentence for aggravated robbery. In sentencing appellant, the trial court n oted the seriousness of appellant's conduct, the risk of harm he caused himself and oth ers during the commission of the offenses, and the seri ous psychological harm suffered by the Food Mart cashier. The court further noted appellant's extensive criminal history, whi ch dates back to 1988 and includes felony convictions for aggravated robbery, robbery, an d failure to comply; appellant's failure to respond positively to prior rehabilitati ve interventions; his history of alcohol and drug abuse; and the fact this case represented his ninth and tenth felonyClermont CA2020-12-073

- 4 - convictions. {¶ 8} Appellant appeals his felony sentences, raising two assignments of error. {¶ 9} Assignment of Error No. 1: {¶ 10} THE TRIAL COURT ERRED IN SENTENCING. {¶ 11} Appellant argues that the trial court erred in sentencing him t o more than the minimum prison term on each of the three felony counts to which he pled guilty. Appellant asserts he pled guilty to aggravated robbery, failure to comply , and possession of fentanylrelated compound with the understanding that the state would re commend and the trial court would impose minimum prison terms. {¶ 12} Appellant does not identify where the record reflects he was pr omised minimum prison terms in consideration for his guilty pleas. Th e plea forms signed by appellant do not set forth any promise or representation that a ppellant would be sentenced to minimum prison terms. The plea forms show that in exchange for appellant's guilty pleas, the state dismissed three felony offenses, four misdemeanor off enses, and the repeat violent offender specifications. The plea forms fully and clea rly advised appellant of the sentences the trial court might impose, including the maximum s entences he could serve for OVI, failure to comply, and possession of fentanyl-related compound. Thus, there is no indication that appellant did not know "the actual sentencing p ossibilities" and "the consequences of his plea, including the maximum sentence he cou ld actually serve, at the time" he entered his guilty pleas. State v. Trem , 8th Dist. Cuyahoga No. 101265, 2014- Ohio-4934, ¶ 8, 11. {¶ 13} Furthermore, pursuant to App.R. 9(B), an appellant bears the bu rden of ensuring that the record necessary to determine the appeal is f iled with the appellate court.

See State v. Williams , 73 Ohio St.3d 153, 160, 1995-Ohio-275. Although appellant fi led a transcript of the sentencing hearing, he did not file a transcr ipt of his plea hearing. "WhenClermont CA2020-12-073

- 5 - 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 lowe r court's proceedings, and

affirm." Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199 (1980). Without a transcript of the plea hearing, we have no choice but to presum e the regularity or validity of the trial court's proceeding. State v. Bowling , 12th Dist. Butler No. CA2018-07-148, 2019- Ohio-751, ¶ 8. {¶ 14} Appellant's first assignment of error is overruled. {¶ 15} Assignment of Error No. 2: {¶ 16} THE TRIAL COURT ERRED BY PROVIDING DEFENDANT INEFFECTIVE ASSISTANCE OF COUNSEL. (sic) {¶ 17} Appellant argues he received ineffective assistance because his trial counsel represented he would receive minimum prison terms in considerat ion of his guilty pleas. Appellant further argues he received ineffective assistance at sentencing because his trial counsel did not argue for minimum prison terms or object to the disproportionality of the prison sentences imposed by the trial court. {¶ 18} To prevail on an ineffective assistance of counsel claim, appel lant must show his trial counsel's performance was deficient, and that he was prejudiced as a result. State

v. Clarke , 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel 's performance will not be deemed deficient unless it fell below an objective standard of reasonableness.

Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's errors, there is a reasonable probability that the result of hi s trial would have been different.

Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to an ineffective

assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to haveClermont CA2020-12-073

- 6 - rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Burns , 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7. It is "all too tempting" to "second-guess counsel's assistance after

conviction or adverse sentence." Strickland at 689. {¶ 19} As stated above, the plea forms do not support appellant's clai m he was promised minimum prison terms in consideration of his guilty pl eas or that his trial counsel made such representation to induce him to plead guilty. The pl ea forms advised appellant of the potential maximum sentences the trial court could impose and acknowledged that no promises had been made except for those listed on the forms, to wit, the dismissal of the repeat violent offender specifications and remaining counts in the two cases. Again, in the absence of a transcript of the plea hearing, we have no choice but to presume the regularity or validity of the trial court's proceeding. Bowling , 2019-Ohio-751 at ¶ 8. See also State v.

Houseworth , 6th Dist. Lucas No. L-07-1114, 2008-Ohio-874 (even assuming t rial counsel made similar representation, there is no reasonable probability the outcome of the case

would have been different as the trial court sentenced the defe ndant within the permissible statutory range). {¶ 20} We further find that appellant did not receive ineffective assi stance of counsel when his trial counsel failed to argue for minimum prison terms or object to the disproportionality of the sentences imposed by the trial court. The offenses of aggravated robbery and failure to comply were serious and their circumstan ces aggravated. Appellant used a weapon that looked identical to a .357 revolver, ultimat ely causing serious psychological harm to the Food Mart cashier. At the time of th e aggravated robbery, a woman and her child were in the store. Appellant posed a risk of harm to himself, motorists, and others. Considering the foregoing, and given appellant's e xtensive criminal history and felony record, his failure to be successfully rehabilitated des pite several opportunities, andClermont CA2020-12-073

- 7 - his history of alcohol and drug abuse, there is no reasonable p robability that he would have been sentenced to shorter or minimum prison terms had counsel a rgued for minimum prison terms or objected to the disproportionality of the sentences im posed by the trial court. See State v. Douglas , 10th Dist. Franklin No. 09AP-111, 2009-Ohio-6659. {¶ 21} Appellant's second assignment of error is overruled. {¶ 22} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.