[Cite as State v. Hunt, 2018-Ohio-4849.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105769



                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           JEIMIL HUNT

                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                     Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                            Case No. CR-91-273936-C, CR-93-300402-D,
                                 CR-94-305667-D, CR-94-307512-B

        BEFORE: Laster Mays, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                  December 6, 2018
                                                -i-
ATTORNEY FOR APPELLANT

William Norman
600 E. Granger Road, Second Floor
Brooklyn Heights, Ohio 44131


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113



ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Jeimil Hunt (“Hunt”) appeals his convictions and asks this

court to vacate his sentence, reverse his convictions, and remand to the trial court for a new trial.

 After a review of the record, we affirm.

       {¶2} On March 11, 1992, Hunt pleaded guilty to attempted aggravated burglary, a

first-degree felony, in violation of R.C. 2911.11 and 2923.02. Hunt was sentenced to 4 to 15

years imprisonment.     The trial court suspended the sentence and ordered Hunt to serve three

years of probation.    Hunt violated his probation, and on August 12, 1992, the trial court

sentenced him to three to 15 years imprisonment. On July 7, 1993, the trial court granted

Hunt’s motion to suspend further execution of his sentence and placed Hunt on five years

probation.

       {¶3} On May 31, 1994, Hunt pleaded guilty to aggravated murder, a first- degree felony,
in violation of R.C. 2903.01, and aggravated robbery, a first- degree felony, in violation of R.C.

2911.01.   He was sentenced to life in prison for aggravated murder and 15 to 25 years

imprisonment for aggravated robbery, to be served consecutively.

I.     Facts

       {¶4} The transcripts of all the proceedings are unavailable. Hunt submitted a statement

of the record as required by App.R. 9(C)(1). The trial court, on October 17, 2017, indicated,

       While the court now accepts the representation that all transcripts relating to the
       this case are unavailable and impossible to obtain, this court does not, in any way,
       intend to agree with defendant’s statement of the evidence in whole or in part.
       The court’s recollection of it’s practices both then and now would cause this court
       to disagree with some portion of the statement presented.

Journal entry No. 100961827.

       {¶5} These are the facts that Hunt has submitted to the court in his brief:

       In January 1992, [a]ppellant Hunt was indicted for one count of attempted
       aggravated burglary, in violation of R.C. 2923.02, 2911.11, with a three-year
       frearm specification under Section 2941.141; one count of conspiracy to commit
       aggravated robbery, in violation of Section 2923.01, 2911.01, with a three-year
       firearm specification under Section 2941.141; and one count of possessing
       criminal tools, in violation of Section 2923.24. See Statement of the Record at 1-2.

       On March 11, 1992, [a]ppellant Hunt, in open court and with counsel present, was
       fully advised of his constitutional rights. Id. On behalf of [a]ppellant Hunt, the
       public defender was present. On behalf of the [s]tate, Prosecutor Tony Kellon
       was present. On recommendation of the prosecutor, Count One of the
       indictment was amended by deleting the firearm specification. Appellant Hunt
       pled guilty to one count of attempted aggravated burglary, in violation of Section
       2923.02, 2911. Counts Two and Three were nolled. Judge Patricia Anne
       Gaughan presided over the proceeding. Id.

       On April 13, 1992, the case proceeded to sentencing and Judge Gaughan
       sentenced [a]ppellant Hunt to 4-15 years, execution of sentence suspended.
       Appellant Hunt was ordered to serve three years of probation with conditions that
       he (1) be supervised by intensive special probation unit, (2) obtain employment
       within [60] days, and (3) pay court costs at $15.00 per month. Id.

       On August 13, 1992, Judge Gaughan held [a]ppellant Hunt to be a probation
violator and sentenced him to 3-15 years. On July 7, 1993, Judge Gaughan
granted [a]ppellant Hunt’s motion to suspend further execution of sentence as
provided for by Section 2944.061. Appellant Hunt was placed on five years
probation with the conditions that he (1) be supervised by intensive special
probation, (2) serve [100] hours community service, (3) obtain employment, and
(4) pay court costs at the rate of $20.00 per month. Id.

On May 31, 1994, at the request of Kathleen Ann Sutula and Administrative
Judge James J. Sweeney, a probation violation hearing regarding [a]ppellant Hunt
was transferred to Judge Kathleen Ann Sutula. Id.

On June 14, 1994, Judge Kathleen Sutula held a probation hearing, found
[a]ppellant Hunt to be a probation violator, and sentenced [a]ppellant Hunt to his
original sentence. Id.

Later, [a]ppellant Hunt was charged with receiving stolen property. On May 31,
1994, at the request of Judge Kathleen Ann Sutula and Administrative Judge
James J. Sweeney, the case was transferred to the docket of Kathleen Ann Sutula.
 Id. On May 31, 1994, the [s]tate of Ohio, with leave and good cause shown,
entered a nolle prosequi for the indictment. Judge Kathleen Ann Sutula signed the
journal entry. Id.

Appellant Hunt was charged with capital murder, with specifications, kidnapping,
and robbery. On May 31, 1994, [a]ppellant Hunt was present with counsel,
Attorneys Donald Butler and Alan Rossman, and was fully advised of his
constitutional rights. Appellant Hunt pled guilty to aggravated murder, capital
case, under R.C. 2903.01, as charged in Count Three of the indictment. Id.
The plea was accepted by a three-judge panel, consisting of Judge Kathleen Ann
Sutula, Judge Patricia A. Cleary, and Judge James J. Sweeney. Prosecutor
Richard Bombik represented the state of Ohio. Id. at 3.

On June 14, 1994, [a]ppellant Hunt proceeded to sentencing. The panel asked
[a]ppellant Hunt if he had anything to say as to why judgment should not be
pronounced. Appellant Hunt stated that he had nothing to offer other than what
he had already said. Appellant Hunt, present with counsel, was sentenced to life
in prison, with parole eligibility after [30] years. Appellant Hunt was also
sentenced to the three-year mandatory consecutive term which attached to the gun
specification, (to be served prior and consecutive to the 30 year to life term).
Id.

On May 31, 1994, at the request of Judge Kathleen A. Sutula and Administrative
Judge James J. Sweeney, the case was transferred to the docket of Judge Kathleen
Ann Sutula. Id. at 4.
       On May 13, 1994, [a]ppellant Hunt, present with counsel, [a]ttorneys Donald
       Butler and Alan Rossman, was fully advised of his constitutional rights. Id.

       Prosecutor Richard Bombik represented the [s]tate of Ohio.

       Appellant Hunt pled guilty to aggravated robbery, in violation of R.C. 2911.01,
       with a prior aggravated felony specification.

       Appellant Hunt was sentenced to a term of 15-25 years, to be ran consecutive to
       the sentences imposed in CR-94-305667-D. Id. The remaining counts were
       nolled.

Appellant’s Brief (pg. 6-8.)

       {¶6} Hunt filed an appeal and assigns nine assignment of errors for our review:

       I.      Appellant Hunt’s panel fatally erred, under State v. Green, 81 Ohio St.3d
               100 (1998), by accepting, his guilty plea to capital murder, with
               specifications, absent requiring evidence, testimony, and witnesses
               establishing appellant Hunt’s guilt beyond a reasonable doubt, and by
               further failing to enter a journal entry reflecting Green compliance.

       II.     Insufficient evidence exists to sustain appellant Hunt’s conviction for
               capital murder, with specification.

       III.    Appellant Hunt’s guilty plea to capital murder with specifications was not
               knowing, intelligent, and voluntary as required by Article I, Section 10, to
               the Ohio Constitution and Amendments V and XIV to the United States
               Constitution.

       IV.     The panel’s complete failure to comply with Crim.R. 11 required vacatur
               of appellant Hunt’s guilty plea to capital murder, with specifications.

       V.      Appellant Hunt’s guilty plea to aggravated robbery with a firearm
               specification was not knowing, intelligent, and voluntary, as required by
               Article I, Section 10, to the Ohio Constitution and Amendments V and
               XIV to the United States Constitution.

       VI.     The trial court’s complete failure to comply with Crim.R. 11, when
               accepting appellant’s Hunt’s guilty plea to aggravated robbery, with a
               firearm specification, requires vacatur of his plea and sentence.

       VII.    Appellant Hunt’s guilty plea to aggravated burglary was not knowing,
               intelligent, and voluntary as required by Article I, Section 10 to the Ohio
               Constitution and Amendments V and XIV to the United States
               Constitution.

       VIII.   The trial court’s complete failure to comply with Crim.R. 11 when
               accepting appellant Hunt’s guilty plea to aggravated burglary, requires
               vacatur of his plea and sentence.

       IX.     The trial court fatally erred and deprived appellant Hunt due process of
               law, by rejecting his unopposed App.R. 9(C) statement, and submitting a
               record which lacks an intelligent basis in fact.

II.    Accepting a Guilty Plea

       A.      Standard of Review

       {¶7} “The standard for reviewing whether the trial court accepted a plea in compliance

with Crim.R. 11(C) is de novo. It requires an appellate court to review the totality of the

circumstances and determine whether the plea hearing was in compliance with Crim.R. 11(C).

State v. Cardwell, 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart,

51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).” State v. Maddox, 8th Dist. Cuyahoga Nos. 106505

and 106506, 2018-Ohio-3056, ¶ 8.

       B.      Law and Analysis

       {¶8} In Hunt’s first assignment of error, he argues that the three-judge panel erred, under

State v. Green, 81 Ohio St.3d 100, 689 N.E.2d 556 (1998), by accepting his guilty plea to capital

murder, with specifications, absent requiring evidence, testimony, and witnesses establishing

appellant Hunt’s guilt beyond a reasonable doubt, and by further failing to enter a journal entry

reflecting Green compliance.

       [W]e hold that when a defendant pleads guilty to aggravated murder in a capital
       case, a three-judge panel is required to examine witnesses and to hear any other
       evidence properly presented by the prosecution in order to make a Crim.R. 11
       determination as to the guilt of the defendant. Following the presentation of
       evidence, pursuant to R.C. 2945.06, a three-judge panel must unanimously
       determine whether the defendant is guilty beyond a reasonable doubt of
       aggravated murder or of a lesser offense. This finding of guilt must be properly
       journalized to constitute a valid conviction.

Id.

       {¶9} According to the statement of record Hunt submitted to the court under App.R. 9(C),

he was fully advised of his constitutional rights.   Hunt was asked by the panel if he had anything

else to say, and he responded that he had nothing to offer other than what he already said. The

journal entry reflects this as well. Hunt does not give any facts or information as to how the

panel erred. He does not demonstrate through his statement of record that the panel did not

fully comply with Green or Crim.R. 11. “[A]bsent a transcript or alternative record, we must

presume regularity in the proceedings below. Knapp v. Edwards Laboratories (1980), 61 Ohio

St.2d 197, 199, 400 N.E.2d 384.” State v. Ali, 8th Dist. Cuyahoga No. 97612, 2012-Ohio-2510,

¶ 6.

       {¶10} In addition, Hunt’s reliance on Green is misplaced. He was sentenced before the

standard in Green was required.     Hunt pleaded guilty and was sentenced for capital murder in

1994. The trial court complied with the law at that time.           Similarly to Hunt, in State v.

Burrage, 8th Dist. Cuyahoga No. 63824, 1993 Ohio App. LEXIS 4849 (Oct. 7, 1993), the

“[a]ppellant complains that his plea of guilty should not have been accepted by the three-judge

panel. He relies on R.C. 2945.06 and Crim.R. 11(C) and asserts that the court should have

examined witnesses and taken separate pleas to each specification.” The court in Burrage

found that “the trial court substantially complied with the statutory and rule requirements.” Id.

       {¶11} Additionally, the Burrage court provided the standard for which the trial court

needed to follow to accept a guilty plea in a capital case. The court continued, stating,

       In accepting a guilty plea, substantial compliance with Crim.R. 11 is required.
       State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990); State v.
       Strawther, 56 Ohio St.2d 298, 300, 383 N.E.2d 900 (1978); State v. Stewart, 51
       Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977). Substantial compliance with
       Crim.R. 11(C) is determined upon a review of the totality of the circumstances to
       determine that no prejudice has resulted to the defendant. State v. Carter, 60
       Ohio St.2d 34, 38, 396 N.E.2d 757 (1979); State v. Flint, 36 Ohio App.3d 4, 7,
       520 N.E.2d 580 (1986); State v. Rainey, 3 Ohio App.3d 441, 442, 446 N.E.2d 188
       (1982); State v. Calvillo, 76 Ohio App.3d 714, 719, 603 N.E.2d 325 (1991); State
       v. Gibson, 34 Ohio App.3d 146, 147, 517 N.E.2d 990 (1986); State v. Rogers, 8th
       Dist., Cuyahoga No. 51692 (Mar. 5, 1987), unreported.

       Substantial compliance means that under the totality of the circumstances the
       defendant subjectively understands the implications of his plea and the rights he is
       waiving. * * * [A] defendant who challenges his guilty plea on the basis that it
       was not knowingly, intelligently, and voluntarily made must show a prejudicial
       effect.

State v. Nero, supra, at 108 (citations omitted).

       {¶12} The Burrage court continued, providing the parameters regrading adherence to

R.C. 2945.06 by the trial court.

       Furthermore, although R.C. 2945.06 indicates that the court is to conduct an
       examination of witnesses to determine whether the accused is guilty of aggravated
       murder.

       If the accused pleads guilty of aggravated murder, a court composed of three
       judges shall examine the witnesses, determine whether the accused is guilty of
       aggravated murder or any other offense, and pronounce sentence accordingly.

       Crim.R. 11 (C)(3) in comparison states:

       If the indictment contains one or more specifications which are not dismissed
       upon acceptance of a plea of guilty or no contest to the charge, or if pleas of guilty
       or no contest to both the charge and one or more specifications are accepted, a
       court composed of three judges shall; (1) determine whether the offense was
       aggravated murder or a lesser offense; and (b) if the offense is determined to have
       been aggravated murder, proceed as provided by law to determine the presence or
       absence of the specified aggravating circumstances and of mitigating
       circumstances, and impose sentence accordingly.

       Crim.R. 11 does not require the court to examine witnesses; it only requires the
       court to determine whether the offense was aggravated murder or a lesser offense.
        State v. Muenick, 26 Ohio App.3d 3, 4, 498 N.E.2d 171 (1985). The record
       clearly indicates that this determination was made at defendant’s guilty plea
       hearing:

       The record should further indicate the [c]ourt finds there’s a factual basis for the
       plea. (Tr. 15.)

       Section 5(B), Article IV of the Ohio Constitution provides that “the Supreme
       Court shall prescribe rules governing practice and procedure in all courts of the
       [s]tate. * * * All laws in conflict with such rules shall be of no further force or
       effect.” Since the procedure to be followed according to R.C. 2945.06 is
       inconsistent with the procedure to be followed in [Crim.R.] 11(C)(3), a conflict
       exists, and to the extent that R.C. 2945.06 conflicts with Crim.R. 11(C), it is no
       longer effective. In re Coy, 67 Ohio St.3d 215, 219, 616 N.E.2d 1105 (1993);
       Rocky v. 84 Lumber Co., 66 Ohio St.3d 221, 224, 611 N.E.2d 789 (1993); State v.
       Greer, 39 Ohio St.3d 236, 245-246, 530 N.E.2d 382 (1988). As Crim.R. 11 was
       complied with, we find no error.

       Generally, a reviewing court shall not find reversible error for a trial court’s
       failure to follow the procedures under Crim.R. 11(C) where the trial court
       substantially complies with those procedures * * *.

       Here, the trial court substantially complied with all of the requirements under
       Crim.R. 11(C). Further, the defendant cannot demonstrate any prejudice from
       the trial court’s failure to require separate pleas to the aggravated murder
       specifications. State v. Korp, 8th Dist. Cuyahoga No. 56132 (Nov. 2, 1989),
       unreported, at 7.

Id.

       {¶13} In addition, the Burrage case law states nothing about failing to enter a journal

entry reflecting Green’s compliance because Green had not been decided yet. Hunt cannot rely

on the trial court to comply with a law not yet created at the time of his sentencing.   We agree

that Green overruled Burrage. However, Hunt cannot retroactively apply Green to his case.

Therefore, Hunt’s first assignment of error is overruled.

       {¶14} In Hunt’s third, fourth, fifth, sixth, seventh, and eighth assignments or error he

argues that the trial court did not comply with Article I, Section 10, to the Ohio Constitution

and Amendments V and XIV to the United States Constitution or Crim.R. 11 when accepting his
guilty pleas. For the above-stated reasons, we overrule these assignments of error as well.

       {¶15}    In Hunt’s statement of record, he states that he was fully advised of his

constitutional rights, was represented by counsel, and pleaded guilty to all charges. Hunt does

not demonstrate where or how the trial court erred. He simply states that it erred without giving

any facts to support that conclusion. Without a record, it is impossible for us to conclude that

the trial court erred in any way.     We, as “a reviewing court indulges in a presumption of

regularity of the proceedings below. Hartt v. Munobe, 67 Ohio St.3d 3, 7, 615 N.E.2d 617;

State v. Marcus, Cuyahoga No. 79768, 2002-Ohio-970.”             State v. Payne, 8th Dist. Cuyahoga

No. 86367, 2006-Ohio-2085, ¶ 8.         “Without the filing of a transcript, an appellate court

presumes regularity in the proceedings and accepts the factual findings of the trial court as true.

Bailey v. Bailey, 8th Dist. Cuyahoga No. 98173, 2012-Ohio-5073 ¶ 8, citing Snider v. Ohio Dept.

of Rehab. & Corr., 10th Dist. Franklin No. 11AP-965, 2012-Ohio-1665, ¶ 8.”

Henderson-Austin v. Akili, 8th Dist. Cuyahoga No. 106307, 2018-Ohio-2518, ¶ 5.

III.   Sufficiency of the Evidence

       {¶16} In Hunt’s second assignment of error, he argues that insufficient evidence exists to

sustain his conviction for capital murder, with specification.

       The test for sufficiency requires a determination whether the prosecution met its
       burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
       2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the
       evidence in a light most favorable to the prosecution, any rational trier of fact
       could have found the essential elements of the crime proven beyond a reasonable
       doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two
       of the syllabus.

State v. Lester, 8th Dist. Cuyahoga No. 105992, 2018-Ohio-3041, ¶ 12.

       {¶17} Hunt contends that the panel failed to require the state to produce evidence

establishing Hunt’s guilt of capital murder. Again, Hunt merely states a conclusion without
providing any facts or evidence of the conclusion. He does not demonstrate that the panel erred.

 His own statement of record does not provide any facts other than just a recitation of the

journalized entry.   “‘[I]n the absence of documents demonstrating the error complained of, we

must presume regularity in the proceedings.’” State v. Goines, 8th Dist. Cuyahoga No. 105436,

2017-Ohio-8172, ¶ 30, quoting Brandimarte v. Packard, 8th Dist. Cuyahoga No. 67872, 1995

Ohio App. LEXIS 2095, 3 (May 18, 1995). State v. Greene, 8th Dist. Cuyahoga No. 106028,

2018-Ohio-1965, ¶ 56. Therefore, Hunt’s second assignment of error is overruled.

IV.    Statement of the Record

       {¶18} In Hunt’s ninth assignment of error, he argues that the trial court fatally erred and

deprived him due process of law, by rejecting his unopposed App.R. 9(C) statement, and

submitting a record that lacks an intelligent basis in fact.

       “Approval as contemplated by Appellate Rule 9(C) means that, whether or not
       settlement is required, the trial court must determine the accuracy and truthfulness
       of a proposed statement of evidence or proceedings and then approve it.
       Independent of any agreement or disagreement between the parties, the trial court
       has the responsibility, duty, and authority under Appellate Rule 9(C) to delete, add
       or otherwise modify portions of a proposed statement of the evidence or
       proceedings so that it conforms to the truth and is accurate before it is approved.”
        Aurora v. Belinger, 180 Ohio App.3d 178, 2008-Ohio-6772, 904 N.E.2d 916, ¶
       35 (11th Dist.), citing Joiner v. Illuminating Co., 55 Ohio App.2d 187, 380
       N.E.2d 361, (8th Dist.1978), syllabus.

State v. Getzinger, 3d Dist. Henry No. 7-12-06, 2013-Ohio-2146, ¶ 20.

       {¶19} The trial court is permitted to reject Hunt’s statement of record and provide

corrections, which it did. However, Hunt’s statement of record lacks specific information to

demonstrate the errors he assigned for this court to review. We find that the trial court did not

commit any errors and presume regularity in all the proceedings. Therefore, we overrule Hunt’s

ninth assignment of error.
       {¶20} Judgment affirmed.

       It is ordered that the 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.

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

Rules of Appellate Procedure.



______________________________________
ANITA LASTER MAYS, JUDGE

MELODY J. STEWART, P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
