[Cite as State v. Merrick , 2012-Ohio-4449.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 24971

v. : T.C. NO. 11CR1669 MARCUS A. MERRICK : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 28th day of September , 2012.

. . . . . . . . . . CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JAMES C. STATON, Atty. Reg. No. 0068686, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant MARCUS A. MERRICK, #655-159, Southeastern Co rrectional Institute, 5900 B.I.S. Road, Lancaster, Ohio 43130 Defendant-Appellant

. . . . . . . . . .2 DONOVAN, J. {¶ 1} Appointed counsel for defendant-appella nt Marcus A. Merrick submitted an appellate brief under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that no arguab ly meritorious issues exist for appeal. After a thorough review of the record, this Court agrees that the trial court’s proceedings were proper, and we affirm the trial court’s judgment. {¶ 2} Merrick was originally charged with two counts of feloni ous assault, both felonies of the second degree, and two count s of endangering children (serious physical harm), also felonies of the second degree. Initially, Merrick pled not guilty by reason of insanity and requested a competency evaluati on. The trial court or dered that a mental competency evaluation be conducted first. An evaluation was complete d, and the trial court found Merrick competent to stand trial. Merrick subsequently pled no contest to all of the charges in the indictment. {¶ 3} The plea transcript reflects the prosecutor’s reading of the indictment (which tracks the statute) and Merrick’s acknowledgme nt and understanding of the charges against him. Prior to his no contest pleas, the trial court conducted a thorough Crim. R. 11 dialogue with Merrick, and his pleas we re entered in a knowing and vol untary fashion. There was no agreement regarding sentencing. In fact, we note that in a sentencing memorandum filed on March 3, 2010, the State requested that the trial court impose the maximum consecutive sentences allowed by law. On November 15, 2011, the trial court senten ced Merrick to four years for Count I, endangering children; four years for Count II, felonious assault; six years

for Count III, endangering children; and six years for C ount IV, felonious assault. The trial3 court merged Count I with Count II and Count III with C ount IV and ordered that the

sentences be served consecutiv ely for an aggregate sentence of ten years in prison. {¶ 4} Merrick filed a timely notice of a ppeal with this Court on December 29, 2011. On May 16, 2012, appointed counsel representing Merrick submitted an Anders brief, alleging that no arguably meritorious issues exist for appeal. By magistrate’s order of May 31, 2012, we informed Merrick that his counsel filed an Anders brief and informed him of the significance of an Anders brief. We invited Merrick to file a pro se brief assigning any error for our review within sixty days of May 31, 2012. Merrick has not filed anything with this

Court. {¶ 5} Although arguing that there are no mer itorious claims to raise on Merrick’s behalf, his attorney identified three potential assignments of error; to wit: 1) the trial court erred in sentencing him to consecutive senten ces; 2) the trial court erred by sentencing Merrick to an aggregate prison term of ten y ears; and 3) the trial court erred when it found Merrick competent to stand trial. Upon review , we agree with appellate counsel that these potential assignments of erro r have no arguable merit. {¶ 6} Under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, a

trial court has disc retion when imposing a felony sentence. We cannot say that the trial court abused its discretion when imposing the senten ce that it did. The offenses that Merrick committed, two counts each of feloni ous assault and endangering ch ildren, are all felonies of the second degree, and involved the extreme phy sical abuse of his own infant daughter while under his care and responsibility. Merrick’s actions toward his daughter resulted in potential irreversible brain da mage, seizures, hearing loss, mental retardation, learning4 disabilities, and paralysis. {¶ 7} Lastly, appellate counsel argues that a potential assignment is whether the trial court erred by finding Merrick competent to stand trial. The record establishes that the

trial court ordere d Merrick to undergo a competency evaluation on June 15, 2011. After the evaluation was conducted, the tria l court held a competency hearing on August 2, 2011. In an entry issued on August 12, 2011, the trial c ourt found Merrick competent to stand trial after both parties stipulated to the contents of the mental evaluation. Notably, Merrick has not provided us with a typed or printed copy of the transcript from the competency hearing so that we may properly review the record regardin g this potential error, as required by App. R. 9(A). {¶ 8} Absent such a transcript, we cannot determine whether the record supports findings the trial court made when it found Merrick competent to stand trial. We must, therefore, accept these findings as an accurate representation of the evidence adduced. Without a transcript, Moore’s poten tial argument n ecessarily fails. State v. Smith , 2d Dist. Montgomery No. 20835, 2005-Ohio-5588, ¶9-10. We mu st, therefore, assume regularity in the proceedings. State v. Morris , 2d Dist. Montgomery No. 21125, 2006-Ohio-2129. Assuming regularity in the tria l court’s proceedings, we will presume that the trial court conducted a full evidentiary hearing and gave Merrick a full opportunity to be heard regarding his competency to stand trial. Furthermore, Merrick’s responses at the plea hearing reveal cogent responses , twelve years of schooling a nd no indication of the use of psychotropic medications which woul d potentially impact his competency. {¶ 9} In the performance of our duty, under Anders v. California, to conduct an5 independent review of the r ecord, we have found no potential assignments of error having arguable merit. We conclude that this appeal is wholly frivolous. Therefore, the judgment of

the trial court is Affirmed.

. . . . . . . . . . FAIN, J. and HALL, J., concur. Copies mailed to: Carley J. Ingram James C. Staton Marcus A. Merrick Hon. Frances E. McGee