[Cite as State v. Carney, 2016-Ohio-2684.]


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

STATE OF OHIO                                        C.A. No.       14CA010706

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
KENNETH CARNEY                                       OBERLIN MUNICIPAL COURT
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   14CRB00375

                                 DECISION AND JOURNAL ENTRY

Dated: April 25, 2016



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Kenneth Carney, appeals the judgment of the Oberlin

Municipal Court convicting him of criminal mischief and sentencing him to a jail term of 60

days with 30 days suspended based on his compliance with several conditions, including the

wearing of an alcohol monitoring device for five years. For the reasons that follow, we affirm.

                                                I.

        {¶2}     The City of Amherst filed a complaint charging Carney on one count of domestic

violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. The complaint

arose from an incident in which Carney was under the influence of alcohol and became

embroiled in a verbal altercation with his then-live-in girlfriend. According to her statement to

responding police officers, the girlfriend was in fear for her safety since Carney poked her chest,

pushed her against a wall, and made a threatening gesture with a telephone.                Carney

subsequently pled “no contest” to the reduced charge of criminal mischief in violation of R.C.
                                                 2


2909.07, a misdemeanor of the third degree. The trial court accepted Carney’s plea and found

him guilty of the reduced charge.

       {¶3}    After accepting Carney’s plea, the matter was referred for a presentence

investigation report (“PSI report”). According to the trial court’s sentencing entry, the PSI report

includes information regarding this incident as well as five previous convictions that are on

Carney’s record. The entry further reflects that based on the background and facts contained in

the PSI report, the trial court decided to impose a 60-day jail term. It suspended 30 days of the

jail term on several conditions, including that Carney wear an alcohol monitoring device for five

years. Upon Carney’s motion, the trial court stayed the execution of his jail term pending the

resolution of this timely appeal, which presents three assignments of error for our review. Since

the second and third assignments of error implicate similar issues, we elect to address them

together.

                                                II.

                                     Assignment of Error I

       The trial court erred when it imposed a sentence that was not consistent with
       sentences for similar defendant[s] pursuant to R.C. 2929.21(B).

       {¶4}    In his first assignment of error, Carney argues that the trial court erred by

imposing a jail term for criminal mischief that was inconsistent with sentences issued in similar

cases with similar offenders. We disagree.

       {¶5}    R.C. 2929.21(B) relevantly provides that “[a] sentence imposed for a

misdemeanor * * * in violation of a Revised Code provision * * * shall be consistent with

sentences imposed for similar offenses committed by similar offenders.” A defendant who

brings an argument based on the trial court’s violation of R.C. 2929.21(B) “‘bears the burden of

providing the court with sentences imposed for similar crimes by similar offenders which
                                                 3


validate the claim of inconsistency.’”1 State v. Tribble, 7th Dist. Mahoning No. 13 MA 50,

2014-Ohio-4164, ¶ 35, quoting State v. Agner, 3d Dist. Logan No. 8-02-28, 2003-Ohio-5458,

¶13, citing State v. Hanson, 6th Dist. Lucas No. L-01-1217, 2002 WL 471677 (Mar. 22, 2002).

“[I]f [a] defendant intends to argue that the sentence imposed in a particular misdemeanor case is

so inconsistent with sentences imposed by the same court for similar offenses committed by

similar offenders as to be disproportionately harsh, [then the] defendant must object or otherwise

raise that issue in the trial court, affording that court an opportunity to correct the question.”

State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, ¶ 53 (2d Dist.).

       {¶6}    Carney never objected to his sentence during the trial court proceedings on the

basis that it was inconsistent with the sentences given to similar offenders under similar

circumstances. As a result, he has forfeited all but plain error on this issue. See id. (holding that

by failing to object in the trial court proceedings to sentence imposed for misdemeanor

conviction on the basis of inconsistency with other cases, the “defendant has waived all but plain

error”); State v. Quine, 9th Dist. Summit No. 20968, 2002-Ohio-6987, ¶ 7 (conducting plain

error analysis of the defendant’s claim that his felony sentence was inconsistent with sentences




       1
         In his merit brief, Carney only attempts to carry his burden by stating that “checking the
electronic record[s]”of the trial court will reveal that no other similarly-situated defendant
received a jail term like the one imposed in this matter. Correctly realizing that such a bare
assertion falls far short of meeting his burden on appeal, Carney’s reply brief lists several cases
from the trial court arguably supporting his position. However, this Court does not consider
items that are asserted for the first time in a reply brief since reply briefs are “restricted to
matters in rebuttal of the appellee’s brief.” Loc.R. 7(D). As a result, even if Carney properly
raised a plain error argument, we would not consider his belated attempt to carry his burden to
prove inconsistent sentences under R.C. 2929.21(B). See State v. Palmison, 9th Dist. Summit
No. 20854, 2002-Ohio-2900, ¶ 32, fn. 2 (stating that additional instances of alleged ineffective
assistance of counsel that were only asserted in the appellant’s reply brief were not properly
before the Court and would not be considered).
                                                  4


imposed for similar crimes committed by similar offenders). Although Carney has preserved a

plain error argument, he has failed to make one on appeal. “As this Court has repeatedly held,

‘[i]f an argument exists that can support [an] assignment of error, it is not this [C]ourt’s duty to

root it out.’” (Alterations sic.) State v. Vu, 9th Dist. Medina No. 11CA0042-M, 2012-Ohio-746,

¶ 12, quoting Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,

1998). Consequently, we decline to sua sponte fashion a plain error argument on Carney’s

behalf and then address it. See State v. McCrae, 9th Dist. Summit No. 27387, 2015-Ohio-1803,

¶ 8 (collecting cases).

       {¶7}       Accordingly, we overrule Carney’s first assignment of error.

                                       Assignment of Error II

       The trial court erred when it failed to consider proper sanctions and the
       overriding principles and purposes of the misdemeanor sentencing law when
       it determined the appellant’s sentence.

                                      Assignment of Error III

       The trial court erred when it sentenced appellant to be attached to an alcohol
       monitoring device for five years.

       {¶8}       In his second assignment of error, Carney argues that the trial court abused its

discretion by failing to properly consider the relevant misdemeanor sentencing factors before

imposing sentence. In his third assignment of error, Carney contends that the trial court abused

its discretion by requiring him to wear an alcohol monitoring device for five years. We disagree

on both points.

       {¶9}       We review the trial court’s misdemeanor sentence for an abuse of discretion.

State v. Endress, 9th Dist. Medina No. 08CA0011-M, 2008-Ohio-4498, ¶ 3. An abuse of

discretion implies that the court’s decision is arbitrary, unreasonable, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion
                                                 5


standard, a reviewing court is precluded from simply substituting its own judgment for that of the

trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶10} Although the trial court’s failure to consider the misdemeanor sentencing factors

in R.C. 2929.22 constitutes an abuse of discretion, we presume that the trial court considered

those factors “absent an affirmative showing to the contrary.” State v. Smith, 9th Dist. Wayne

No. 05CA0006, 2006-Ohio-1558, ¶ 21. “‘The burden of demonstrating this error falls to [the]

appellant.’” State v. Seidowsky, 9th Dist. Medina No. 13CA0037-M, 2015-Ohio-4311, ¶ 6,

quoting Endress at ¶ 4, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).

We are mindful when reviewing a trial court’s purported failure to consider the R.C. 2929.22

factors, “there is no requirement that the trial court state on the record that it considered the

statutory criteria[.]” State v. Jones, 9th Dist. Wayne No. 02CA0018, 2003-Ohio-20, ¶ 7, citing

State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995).

       {¶11} Carney has not “identified anything in the record suggesting the trial court

disregarded the sentencing factors, and this Court’s review of the record fails to yield ‘an

affirmative showing’ that the trial court failed to consider the factors set forth in R.C. 2929.22.”

Seidowsky at ¶ 8. In its extensive sentencing entry, the trial court included five pages of

“sentencing considerations” that emphasized the totality of the circumstances giving rise to the

complaint in this matter as well as Carney’s background, which included three previous OVI

convictions, an attempted assault conviction, and a disorderly conduct conviction. Indeed, on

appeal, Carney concedes that the trial court “focused on his past actions” before imposing

sentencing, which is a misdemeanor sentencing factor that must be considered pursuant to R.C.

2929.22(B)(1)(b). In light of this, we cannot agree with Carney’s assertion that the trial court

failed to consider the sentencing factors contained in R.C. 2929.22.
                                                 6


       {¶12} To the extent that Carney argues that the trial court abused its discretion in

deciding to impose a 60-day jail term with 30 days suspended and a five-year term of alcohol

monitoring, we note that the trial court ordered a PSI report and referred to its consideration of

that report in its sentencing entry. Despite the trial court’s consideration of the PSI report, it is

not included in the appellate record. “This Court has consistently held that, where the appellant

has failed to provide a complete record to facilitate appellate review, this Court is compelled to

presume regularity in the proceedings below and affirm the trial court’s judgment.” State v.

Yuncker, 9th Dist. Medina No. 14CA0068-M, 2015-Ohio-3933, ¶ 17, citing State v. Daniel, 9th

Dist. Summit No. 27390, 2014-Ohio-5112, ¶ 5, citing State v. McGowan, 9th Dist. Summit No.

27092, 2014-Ohio-2630, ¶ 6. As a result, “[g]iven the absence of the PSI report from the record,

we are unable to fully review whether the trial court abused its discretion in sentencing [Carney]

and we must presume regularity.” State v. Vigilante, 9th Dist. Medina No. 14CA0039-M, 2015-

Ohio-4221, ¶ 18, citing McGowan at ¶ 6.

       {¶13} Accordingly, we overrule Carney’s second and third assignments of error.

                                                III.

       {¶14} Having overruled all of Carney’s assignments of error, we affirm the judgment of

the Oberlin Municipal Court.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 7


       We order that a special mandate issue out of this Court, directing the Oberlin Municipal

Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document 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(C). 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.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT




HENSAL, P. J.
CONCURS IN JUDGMENT ONLY.

MOORE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶15} I concur in the judgment. As noted by the majority at the end of its discussion,

there was no PSI report included in the record on appeal. The trial court clearly considered the

PSI report in determining the sentence. The merits of the arguments raised by Mr. Carney all, to

at least some extent, turn on the contents of the PSI. I would therefore presume regularity and

overrule all of the assignments of error on this basis alone. See State v. McGowan, 9th Dist.

Summit No. 27092, 2014-Ohio-2630, ¶ 6 (“When an appellant does not provide a complete

record to facilitate our review, we must presume regularity in the trial court’s proceedings and
                                               8


affirm.      Consequently, when the contents of a presentence investigation [PSI] report are

necessary to review the appropriateness of a sentence, an appellant must move to supplement the

record on appeal with the report to enable our review.”) (Internal quotations and citations

omitted.).


APPEARANCES:

JACK W. BRADLEY, MICHAEL E. STEPANIK, and R. J. BUDWAY, Attorneys at Law, for
Appellant.

FRANK S. CARLSON, Attorney at Law, for Appellee.
