[Cite as State v. Collins , 2020-Ohio-317.]

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

STATE OF OHIO Appellee

v. JAMES (JAMIE) COLLINS Appellant C.A. No. 19CA011462

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 16CR95076

DECISION AND JOURNAL ENTRY Dated: February 3, 2020

CARR, Judge. {¶1} Defendant-Appellant James Collins appeals from the judgment of the Lorain County Court of Common Pl eas. This Court affirms.

I. {¶2} In November 2016, an indictment was filed charging Collins with one count of felonious assault, four counts of endangering children, and one count of domestic violence. In December 2017, a supplemental indictment was filed charging Col lins with three additional counts of felonious assault, thr ee additional counts of endange ring children, and three additional counts of domestic violence. It was alleged that, during 2016, Collins had repeatedly abused her boyfriend’s three-year old daughter. {¶3} In October 2018, Collins entered a guilty plea to the indictmen t. A presentence investigation (“PSI”) report was ordered. Both the State and C ollins filed a sentencing memorandum. At the sentencing hea ring, the trial court heard f rom Collins, Collins’ counsel, the2

State, the victim’s caseworker, the victim’s maternal grandfath er, and the victim’s mother. The

trial court sentenced Collins t o an aggregate term of 26 years in prison. {¶4} Collins moved for leave to file a delayed appeal, which this Co urt granted. Collins has raised four assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT’S GUILTY PLEA AFTER IMPROPERLY INSTRUCTING ON THE EFFECT OF SAID PLEA DURING THE CRIMINAL RULE 11 COLLOQUY[.] {¶5} Collins argues in her first assignment of error that the trial court erred in accepted her guilty plea as the trial court failed to inform her that he r guilty plea was a complete admission of her guilt. See Crim.R. 11(B); see also Crim.R. 11(C)(2)(b). {¶6} “To satisfy the requirement of in forming a defendant of the eff ect of a plea, a trial

court must inform the defendant of the appropriate language und er Crim.R. 11(B).” (Internal quotations and citation omitted.) State v. Johnson , 9th Dist. Summit No. 27550, 2016-Ohio-480, ¶ 7. Because Collins pleaded guilty to the charges in this mat ter, the trial court consequently had to inform her, that “[t]he plea of guilty is a complete admissi on of the defendant’s guilt.” Id. , quoting Crim.R. 11(B). “While [l]iteral compliance with Crim.R . 11 is preferred, such compliance is not required when the trial court informs the def endant of a nonconstitutional right, such as [t]he right to be informed that a guilty plea is a complete admission of guilt[.]” (Internal quotations a nd citations omitted.) Id. “Consequently, in cases involving the trial court’s explanation of the effect of a guilty plea, we must onl y engage in ‘a substantial compliance analysis.’” Id. , quoting State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12.3

{¶7} “Under this standard, a slight deviation from the text of the r ule is permissible; so long as the totality of the circumstances indicates that the de fendant subjectively understands the implications of h[er] plea and the rights [s]he is waiving, the plea may be upheld.” (Internal quotations and citation omitted.) State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31. “When the trial judge does not substantially comply with Crim.R . 11 in regard to a nonconstitutional right, reviewing courts must determine whethe r the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a pre judicial effect.” (Emphasis om itted.) Id. at ¶ 32. “If the trial judge completely failed to comply with the rule, e.g., by not i nforming the defendant of a mandatory period of postrelease c ontrol, the plea must be vacat ed.” Id. {¶8} At the plea hearing, the trial court asked Collins if she wishe d to change her plea to guilty to the charges in th e indictment. Collins responded that she did. Contrary to Collins’ argument on appeal, the trial court then described each of the 15 counts and listed the possible penalties. After a discussion of Collins’ constitutional right s, the trial court had the following colloquy with Collins: [Trial court:] Now, since you are entering a plea of guilty, w e are not going to have a trial obviously. And if ther e’s no trial, your rights t o appeal a sentence that I impose, those rights are more limited now. Do you understand that? In other words, you can’t say, well, I’m going to appeal becaus e I’m not guilty, because you are making an admission here today of guilt. Do yo u understand that? [Collins:] Yes, Your Honor.

* * * [Trial court:] When someone com es to court, Ms. Collins, and s ays, Judge, I want to change my plea from not guilty to guilty, you are making an admission to me on the record. You are saying, you know, Judge, I am taking re sponsibility for4

violating the law and I am willing to give up my constitutional right to have a trial and all these other rights you have just gone over on the recor d with me. I just want to get the case over wit h, put it behind me and try to mov e on with my life. Is that a pretty fair summa ry of what you understand? [Collins:] Yes, Your Honor. {¶9} The trial court then discussed the written plea form, which Col lins acknowledged signing. Collins stated that she reviewed the agreement with c ounsel, that counsel explained it to her, and that she read every word of it. That agreement includ ed a statement that Collins’ counsel explained the consequences of her plea. At the end of the colloquy, the trial court accepted Collins’ plea and found that Collins “underst[ood] the nature of the charges, the effect of her plea, as well as the max imum penalties which could be im posed.” {¶10} Here, while the trial court did not use the exact language from Crim.R. 11(B), we conclude that it substantially complied with the required notif ication. See Clark at 31. The trial court informed Collins that she was “making an admission here t oday of guilt[,]” while Crim.R. 11(B) provides that “[t]he plea of guilty is a complete admissi on of the defendant’s guilt.” Considering the totality of the circumstances, we conclude that Collins subjectively understood the implications of her plea and the rights she was waiving. See id. Moreover, even if we were to conclude that the trial court only partially complied with t he required notifi cation, Collins has not set forth any argument dem onstrating that she was prejudice d. See id. at ¶ 32. {¶11} Collins’ first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT FAILED TO ALLOW APPELLANT TO RESPOND TO OR REBUT THE NEW MATERIAL INTRODUCED DURING THE VICTIM IMPACT STATEMENT AS REQUIRED UNDER R.C. 2930.14(B)[.]5

{¶12} Collins argues in her second assignm ent of error that the trial court erred in failing to allow her to respond to new information introduced during th e victim impact statement at the sentencing hearing. Collins argues that the trial court improp erly relied upon statements made by the victim’s caseworker. {¶13} In support of her argument, Collins points to R.C. 2930.14(B), which states:

The court shall consider a vic tim’s statement made under divisi on (A) of this section along with other factors that the court is required to consider in imposing sentence or in determining the order of disposition. If the st atement includes new material facts, the court shall not rely on the new material fa cts unless it continues the sentencing or dispositional proceeding or takes other appro priate action to allow the defendant or alleged juvenile offender an adequate op portunity to respond to the new material facts. {¶14} “[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincin g evidence” that: (1) “the rec ord does not support the trial court’s findings under relevant statutes,” or (2) “the sentence is otherwise contrary to law.” State

v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. This Court is unabl e to properly review this assignment of error, however, as the record does not conta in the PSI report, which the trial court considered in imposing sentence. Accordingly, we cannot determine whether the facts allegedly relied upon by the trial court were in fact “new mate rial facts” as required by the

statute. See R.C. 2930.14(B). “It is the appellant’s responsibility to ensu re that the record on appeal contains all matters necessary to allow this Court to re solve the issues on appeal. [If] an appellant does not provide a com plete record to facilitate our review, we must presume regularity in the trial court’s proceedings and affirm.” (Internal citati ons and quotations omitted.) State v.

Shelton , 9th Dist. Lorain No. 18CA011368, 2019-Ohio-1694, ¶ 7. Given the foregoing, Collins

has not demonstrated that the tr ial court erred in imposing the sentence. {¶15} Collins’ second assignment of error is overruled.6

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER THE PRINCIPLES OF SENTENCING PURSUANT TO R.C. 2929.11, AND WHEN IT FAILED TO BALANCE THE FACTORS OF SERIOUSNESS AND RECIDIVISM PURSUANT TO R.C. 2929.12(D) AND R.C. 2929.12(E) PRIO R TO SENTENCING[.] {¶16} Collins argues in her third assignment of error that the trial court failed to consider the principles and pur poses of sentencing and failed t o balance the seriousness and recidivism factors in sentencing her. {¶17} First, the sentencing transcript makes it clear that the trial court considered the principles and purposes of sentencing outlined in R.C. 2929.11. The trial court, prior to sentencing Collins, specifically listed several of the consider ations set forth in R.C. 2929.11. As to Collins’ claim that the trial court failed to appropriately balance the recidivism factors in R.C. 2929.12, this Court is unable to properly review this assignmen t of error as well. As discussed above, the trial court utilized t he PSI report in fashioning Co llins’ sentence and that report is not part of this Court’s record on appeal. “[W]ithout the context that the PSI report might provide, we cannot conclude that there is clear and convincing evidence in the record that [Collins’] sentence is contrary to law.” Shelton , 2019-Ohio-1694, ¶ 8. Given the incomplete record before us, we are required to presume r egularity in the trial court’s proceedings and overrule this assignment of error. See id. at ¶ 7. {¶18} Collins’ third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT MITIGATION AT THE TIME OF SENTENCING[.] {¶19} Collins argues in her fourth assignment of error that her trial counsel was ineffective in failing to prese nt mitigation evidence at the ti me of sentencing.7

{¶20} In order to prevail on a claim of ineffective assistance of cou nsel, Collins must show that trial “counsel’s perfo rmance fell below an objective standard of reasonableness and that prejudice arose from counsel’s performance.” State v. Reynolds , 80 Ohio St.3d 670, 674 (1998), citing Strickland v. Washington , 466 U.S. 668, 687 (1984). First, Collins must show that counsel’s performance was objectiv ely deficient by producing ev idence that counsel acted unreasonably. State v. Keith , 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second, Collins must demonstrate that but for counsel’s errors, there i s a reasonable probability that the

results of the trial woul d have been different. Keith at 534. {¶21} Collins alleges that “[t]rial counsel failed to mitigate any of the factors set forth in R.C. 2929.12 or present any evidence in mitigation prior to the trial court imposing sentence.” Additionally, she asserts that, “[a]lthough trial counsel menti oned that Appellant had completed programs, he did not highlight a ny of the factors that showed t hat Appellant’s recidivism was low and that community control would not demean the seriousness of the offense and would adequately protect the public.” {¶22} Collins fails to acknowledge tha t her trial counsel submitted a sentencing

memorandum on her behalf that c ontained numerous attachments in cluding, inter alia, letters of support, certificates from progra ms that she had completed, emp loyment records, and records demonstrating that Collins paid child support for her own child ren. When trial counsel was given the opportunity to speak at the hearing, he brought this filing to the trial court’s attention. In addition, at the beginning of the hearing, the trial court n oted that it had just received a packet

of additional information from tr ial counsel that the trial cou rt took the time to review prior to commencing the hearing. Assuming that packet is different from trial counsel’s sentencing8

memorandum, which was filed a c ouple days before the sentencing hearing, that packet is also not part of this Court’s record. {¶23} Collins has not detailed what additional information trial coun sel should have presented on her behalf nor has she developed an argument as to how trial counsel’s behavior prejudiced her. See App.R. 16(A)(7). Further, in light of the absence of the PSI r eport, which

the trial court considered dur ing sentencing, this Court cannot properly review whether anything

trial counsel did or did not do prejudiced Collins. See Shelton , 2019-Ohio-1694, at ¶ 8. {¶24} Collins’ fourth assignment of error is overruled.

III. {¶25} Collins’ assignments of error are overruled. The judgment of t he Lorain County

Court of Common Pl eas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30.9

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

CALLAHAN, P. J. SCHAFER, J. CONCUR.

APPEARANCES: JOSEPH C. PATITUCE, BETHANY R. STEWART, and CATHERINE R. MEEHAN , Attorneys at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.