[Cite as State v. Lipscomb, 2013-Ohio-4474.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99533 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs.

MARIO LIPSCOMB

 DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-560883 and CR-564043 

BEFORE: Jones, J., Stewart, A.J., and E.A. Gallagher, J. 

 

RELEASED AND JOURNALIZED: October 10, 2013 
ATTORNEY FOR APPELLANT 

Thomas A. Rein 

The Leader Building 

Suite 940 

526 Superior Avenue 

Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Milko Cecez 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., J.: 

{¶1} Defendant-appellant, Mario Lipscomb, appeals the 18-month prison sentence 

imposed after he violated his probation in Cuyahoga C.P. No. CR-560883. We affirm. 

{¶2} In May 2012, Lipscomb pleaded guilty to one count of domestic violence, in 

CR-560883, a felony of the fourth degree. In June 2012, the trial court sentenced him to 

12 months of community control sanctions and indicated that a violation of the sanctions 

could result in the court imposing a sentence of 18 months in prison and a $5,000 fine. 

{¶3} In September 2012, Lipscomb pleaded guilty to one count of theft and one 

count of criminal damaging in Cuyahoga C.P. No. CR-564043. On October 18, 2012, 

the trial court sentenced him to 12 months of community control sanctions, ordered him 

to pay restitution in the amount of $390, and indicated that if he violated the conditions of 

his sanctions he could be subject to a sentence of 12 months in prison for theft, 90 days in 

jail for criminal damaging, and a fine totaling $3,250. The trial court also ordered 

Lipscomb to complete an offender program at the local community-based correctional 

facility. 

{¶4} Also on October 18, 2012, the trial court issued a journal entry in which it 

stated that it held a probation violation hearing in CR-560883 and found Lipscomb to be 

in violation of his probation, but was continuing him on community control sanctions. 

{¶5} On January 29, 2013, the trial court held a second probation violation 

hearing, this time on both cases. The court determined that Lipscomb violated the 

conditions of his probation as he had been released from the community-based 
correctional facility without successfully completing the program. The trial court 

imposed an aggregate sentence of 18 months in prison, including 18 months for the 

domestic violence conviction in CR-560883. 

{¶6} Lipscomb filed a timely notice of appeal, and raised the following 

assignment of error for our review: 

[I.] The trial court was without jurisdiction and abused its discretion and 

violated Appellant’s constitutional and statutory rights when it sentenced 

Appellant to prison although it never notified Appellant at the violation 

hearing or in the journal entry. 

{¶7} In his sole assignment of error, Lipscomb contends that the trial court was 

without jurisdiction or authority to impose an 18-month prison sentence in CR-560883 

because the trial court did not inform him at his October 18, 2012 violation hearing that 

he could be imprisoned if he violated the terms of his community control sanctions. 

{¶8} To support his argument, Lipscomb cites State v. Brooks, 103 Ohio St.3d 134, 

2004-Ohio-4746, 814 N.E.2d 837, in which the Ohio Supreme Court held that 

[p]ursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court sentencing 

an offender to a community control sanction must, at the time of the 

sentencing, notify the offender of the specific prison term that may be 

imposed for a violation of the conditions of the sanction, as a prerequisite to 

imposing a prison term on the offender for a subsequent violation. 

Id. at paragraph one of the syllabus. 

{¶9} In State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, the 

court expanded upon Brooks, and held, pursuant to the same statutes, that 
a trial court sentencing an offender upon a violation of the offender’s 

community control sanction must, at the time of such sentencing, notify the 

offender of the specific prison term that may be imposed for an additional 

violation of the conditions of the sanction, as a prerequisite to imposing a 

prison term on the offender for such a subsequent violation. 

Fraley at ¶ 18. Thus, before a trial court sentences an offender to prison for a 

subsequent violation of his or her community control sanctions, that offender must have 

been notified at his or her violation hearing that said prison term could be imposed. 

{¶10} As previously mentioned, Lipscomb claims the trial court failed to inform 

him at the October 18, 2012 violation hearing in CR-560883 that he was subject to an 

18-month prison sentence if he violated his sanctions; therefore, the trial court was 

without the authority to impose the sentence at the January 29, 2013 violation hearing. 

Lipscomb bases his argument on the October 18, 2012 journal entry, which did not state 

that Lipscomb would be subject to imprisonment, let alone the specific sentence that 

could be imposed, should he violate the terms of his community control sanctions. 

{¶11} The state argues that the trial court retained the authority to impose the 

sentence because Lipscomb was notified at his initial June 2012 sentencing hearing that if 

he violated the conditions of his community control sanctions he could be subject to an 

18-month prison sentence, and there is no evidence, other than the October 18, 2012 

journal entry, that a probation violation hearing was actually held on that date. 

Therefore, according to the state, although the trial court issued a journal entry stating it 

held a hearing, it probably did not really hold a hearing and, therefore, the initial sentence 

should control. 
{¶12} We disagree with both parties’ arguments. The docket in CR-560883 

indicates that the trial court held a probation violation hearing on October 18, 2012; 

therefore, absent concrete evidence to the contrary, this court will presume that the trial 

court held the hearing. If a court reporter was present for the hearing, the appellant has 

the duty to file the transcript or such parts of the transcript that are necessary for this court 

to evaluate the trial court’s decision.1

 State v. Peterson, 8th Dist. Cuyahoga No. 96958, 

2012-Ohio-87, ¶ 7; App.R. 9(B). 

{¶13} If Lipscomb was unable to secure a transcript from the October 18, 2012 

probation violation hearing in CR-560883, he could have prepared an App.R. 9(C) 

statement of proceedings.2

 

{¶14} The failure to file the transcript or an App.R. 9(C) statement of the 

proceedings prevents this court from reviewing Lipscomb’s argument that he was not 

properly informed at his October 18, 2012 probation violation hearing of the possible 

prison sentence if he violated the terms of his community control sanctions. See 

Peterson at id. Consequently, absent certification of an adequate record, this reviewing 

 1

The record on appeal includes a transcript dated October 18, 2012, but the transcript is from 

the sentencing hearing on CR-564043. 

2

App.R. 9(C) provides, in part, that “[i]f no recording of the proceedings was made, if a 

transcript is unavailable, or if a recording was made but is no longer available for transcription, the 

appellant may prepare a statement of the evidence or proceedings from the best available means, 

including the appellant’s recollection.” The statement is then served on the appellee for objections 

or proposed amendments and then submitted to the trial court for settlement and approval. Id. 

Finally, the clerk of the trial court includes the statement in the record on appeal. Id.
court presumes regularity of the proceedings and affirms the judgment of the trial court. 

Id. at ¶ 8; see also In re B.B., 8th Dist. Cuyahoga No. 96262, 2011-Ohio-3265. 

{¶15} The sole assignment of error is overruled. The case is remanded for 

correction of the October 18, 2012 journal entry to indicate the specific prison sentence 

the trial court imposed. 

{¶16} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

Case remanded to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., JUDGE 

MELODY J. STEWART, A.J., and 

EILEEN A. GALLAGHER, J., CONCUR