[Cite as State v. Rini, 2013-Ohio-745.]


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

STATE OF OHIO                                        C.A. No.      12CA0045-M

           Appellee

           v.                                        APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JEFFREY A. RINI                                      COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
           Appellant                                 CASE No.   11CR0527

                                  DECISION AND JOURNAL ENTRY

Dated: March 4, 2013



           BELFANCE, Judge.

           {¶1}   Defendant-Appellant Jeffrey Rini appeals from his conviction in the Medina

County Court of Common Pleas. For the reasons set forth below, we affirm in part and reverse

in part.

                                                I.

           {¶2}   In September 2011, Mr. Rini was indicted on one count of trafficking in drugs

within the vicinity of a juvenile in violation of R.C. 2925.03(A)(1)(C)(6)(b), a felony of the

fourth degree. The matter proceeded to a bench trial, after which Mr. Rini was found guilty and

sentenced to eighteen months in prison. Mr. Rini has appealed, raising six assignments of error

for our review, which will be rearranged and addressed out of sequence to facilitate our review.
                                                  2


                                                  II.

                                   ASSIGNMENT OF ERROR II

         THE TRIAL COURT ERRED IN NOT GRANTING MR. RINI’S RULE 29
         MOTION AT THE CLOSE OF THE STATE’S CASE IN CHIEF BECAUSE
         THERE WAS NOT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.

         {¶3}   Mr. Rini asserts in his first assignment of error that the trial court erred in denying

his Crim.R. 29 motion as there not sufficient evidence to support a finding of guilt. We do not

agree.

         {¶4}   “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. No. 24769, 2010–

Ohio–634, ¶ 33. In order to determine whether the evidence before the trial court was sufficient

to sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

         An appellate court’s function when reviewing the sufficiency of the evidence to
         support a criminal conviction is to examine the evidence admitted at trial to
         determine whether such evidence, if believed, would convince the average mind
         of the defendant’s guilt beyond a reasonable doubt. 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.

Id. at paragraph two of the syllabus. We further note that “the interest in the administration of

justice dictates that the appellate court review the issue of sufficiency in consideration of all

evidence presented by the State in its case in chief, whether such evidence was properly admitted

or not.” State v. Denny, 9th Dist. No. 08CA0051, 2009-Ohio-3925, ¶ 12.

         {¶5}   Mr. Rini was found guilty of violating R.C. 2925.03(A)(1)(C)(6)(b).               R.C.

2925.03(A)(1) states that, “[n]o person shall knowingly * * * [s]ell or offer to sell a controlled

substance[.]” R.C. 2925.03(C)(6)(b) provides that
                                                  3


       [w]hoever violates division (A) of this section is guilty of one of the following * *
       * [i]f the drug involved in the violation is heroin or a compound, mixture,
       preparation, or substance containing heroin, whoever violates division (A) of this
       section is guilty of trafficking in heroin. The penalty for the offense shall be
       determined as follows: * * * Except as otherwise provided in division (C)(6)(c),
       (d), (e), (f), or (g) of this section, if the offense was committed in the vicinity of a
       school or in the vicinity of a juvenile, trafficking in heroin is a felony of the fourth
       degree, and division (C) of section 2929.13 of the Revised Code applies in
       determining whether to impose a prison term on the offender.

“A person acts knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge of

circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).

Pursuant to R.C. 2925.01(BB),

       [a]n offense is “committed in the vicinity of a juvenile” if the offender commits
       the offense within one hundred feet of a juvenile or within the view of a juvenile,
       regardless of whether the offender knows the age of the juvenile, whether the
       offender knows the offense is being committed within one hundred feet of or
       within view of the juvenile, or whether the juvenile actually views the
       commission of the offense.

       {¶6}    Agent John Stayrook with the Medina County Drug Task Force testified that, on

August 25, 2011, he was the case agent investigating a claim by a confidential informant that the

informant could buy heroin from Jennifer Neuendorff. Agent Stayrook was working with Agent

Eric Bors, who was undercover. Agent Bors went with the confidential informant to Jennifer

Neuendorff’s residence on Elmwood in Medina, Ohio. Ms. Neuendorff lived in the top portion

of a duplex, and Mr. Rini lived in the bottom portion. The confidential informant was to

introduce Agent Bors to Ms. Neuendorff, and Agent Bors was to conduct the transaction. Agent

Stayrook followed Agent Bors and the informant to Ms. Neuendorff’s residence.                     Agent

Stayrook’s role was surveillance and listening to the audio being recorded by a device on Agent

Bors. In addition, Agent Bors had a covert device that recorded audio and video. Agent Bors
                                                 4


was provided with $200 to buy heroin. From his position, Agent Stayrook observed a GMC van

being driven by Mr. Rini pull in to the residence with an unknown female in the passenger seat.

          {¶7}   Agent Bors testified that he was briefed that Ms. Neuendorff would be his initial

contact, that there was an additional contact below Ms. Neuendorff in the same house, and that

there had been multiple complaints on possible trafficking with respect to the additional contact.

Agent Bors testified that he initially planned to buy three bindles of heroin for $75. However,

Agent Stayrook provided Agent Bors with $200 in case Agent Bors could acquire additional

heroin.

          {¶8}   Agent Bors arrived at the Elmwood residence with the confidential informant and

saw Ms. Neuendorff exiting the upper portion of the duplex. The two proceeded up the steps,

and Ms. Neuendorff made contact with them right outside the door to her residence. The

confidential source introduced Agent Bors and told Ms. Neuendorff that he was looking to buy

three bindles for $75. Ms. Neuendorff indicated that she might be able to get five bindles for

$100 from her source.        While Agent Bors was discussing the drug purchase with Ms.

Neuendorff, Ms. Neuendorff’s children, who were five and six years of age, kept walking in and

out of the residence. Ms. Neuendorff then made a phone call to the person Agent Bors believed

was her supplier. Ms. Neuendorff indicated that she would be meeting with her neighbor who

resided downstairs. After a while, a GMC van pulled into the driveway with a male driver that

was positively identified as Mr. Rini and an unknown female passenger. Mr. Rini acknowledged

the children and commented about them being in their underwear.            Agent Bors gave Ms.

Neuendorff the money, and she went downstairs to meet the vehicle. Agent Bors remained

upstairs. Agent Bors averred that, “[a]s soon as she got close to the vehicle, the unidentified

white female exited the passenger front seat of the car, walked around to the driver’s side
                                                5


window area of the car, kind of paced back and forth and Ms. Neuendorff entered the passenger

front seat of the vehicle.” Agent Bors observed Ms. Neuendorff give Mr. Rini money and saw

“an exchange hand to hand[,]” but could not see what Mr. Rini gave Ms. Neuendorff. Ms.

Neuendorff walked back upstairs and said that her source did not have the five bindles for $100

but would be getting more, and then Ms. Neuendorff handed Agent Bors the folded up pieces of

paper that were later determined to contain heroin. Agent Bors indicated a desire to purchase

more heroin, and they exchanged phone numbers. As soon as Ms. Neuendorff exited Mr. Rini’s

vehicle, the van began to leave. Shortly after, Mr. Rini pulled back into the driveway, rolled

down his window, and stated that a marked car followed him and that there were other

suspicious vehicles in the area. After the transaction was complete, Agent Bors gave Agent

Stayrook four bindles containing heroin.     At trial, the parties stipulated to the BCI report

confirming that the substance in the bindles was heroin.

       {¶9}    In addition to the above testimony, the audio and video surveillance footage was

submitted into evidence as well as two phone calls between Ms. Neuendorff and the confidential

informant.

       {¶10} Viewing the evidence in a light most favorable to the State, we conclude that

sufficient evidence was presented, if believed, from which a trier of fact could find beyond a

reasonable doubt that Mr. Rini knowingly sold heroin in the vicinity of a juvenile. Agent Bors

provided Ms. Neuendorff with money. Ms. Neuendorff went downstairs and met Mr. Rini,

Agent Bors observed a hand-to-hand transaction take place between Ms. Neuendorff and Mr.

Rini, and Ms. Neuendorff returned up the steps where Agent Bors was waiting and gave him four

bindles of heroin. Moreover, Ms. Neuendorff’s children were present and were acknowledged

by Mr. Rini at the time of the drug transaction. From the above evidence, it is reasonable to
                                                  6


conclude that Mr. Rini sold heroin in the vicinity of a juvenile. Accordingly, Mr. Rini’s second

assignment of error is properly overruled.

                                   ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED IN ADMITTING HEARSAY EVIDENCE IN
        VIOLATION OF THE OHIO RULES OF EVIDENCE, THE UNITED STATES
        CONSTITUTION, AND THE OHIO CONSTITUTION.

        {¶11} Mr. Rini asserts in his first assignment of error that the trial court committed plain

error in admitting hearsay testimony and video from Ms. Neuendorff and the confidential

informant.1 We do not agree.

        {¶12} We note that Mr. Rini did not object to any of the alleged hearsay statements.

Thus, Mr. Rini’s assignment of error is subject to plain error review. See State v. Rodriguez, 9th

Dist. No. 09CA009629, 2010-Ohio-400, ¶ 14; see also Crim.R. 52(B). Generally, to establish

plain error,

        “[f]irst, there must be an error, i.e., a deviation from the legal rule. * * * Second,
        the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an
        error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error
        must have affected ‘substantial rights[ ]’ [to the extent that it] * * * affected the
        outcome of the trial.”

State v. Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶ 9, quoting State v. Barnes, 94 Ohio

St.3d 21, 27 (2002).




        1
         While Mr. Rini appears to assert that the testimony, video, and audio in question violate
Crawford v. Washington, 541 U.S. 36 (2004), he offers no analysis or explanation of why that
would be so and does not even assert or identify which evidence at issue was testimonial. In
addition, it is clear that Ms. Neuendorff was brought to court and was available to testify.
However, ultimately, both the State and defense counsel elected not to call her. See State v.
Hood, Slip Opinion No. 2012-Ohio-6208, ¶ 33, quoting Crawford at 53-54 (noting that Crawford
and the Sixth Amendment only “bars ‘admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination[]’”); see also App.R. 16(A)(7). We are not inclined to sua
sponte speculate about Mr. Rini’s general reference to Crawford in his merit brief.
                                                7


       {¶13} In reviewing the record of the proceedings below, it is evident that the State

presented ample admissible evidence from which it established that, with the assistance of a

confidential informant, Agent Bors contacted Ms. Neuendorff for the purpose of buying heroin.

He arrived with a covert video camera which recorded audio and video and from which he

recorded everything that took place. The State further established that Agent Bors gave Ms.

Neuendorff money and that, after she made a phone call, they waited until a vehicle driven by

Mr. Rini pulled into the driveway. Ms. Neuendorff got in the vehicle, and Agent Bors was able

to watch a hand-to-hand transaction. He also watched Ms. Neuendorff exit the vehicle and

return to Agent Bors, whereupon he was given heroin. We note that, because this matter

involves a bench trial, there is a presumption that “the trial court ‘considered only the relevant,

material, and competent evidence in arriving at its judgment unless it affirmatively appears to the

contrary.’” Akron v. Fowler, 9th Dist. No. 21327, 2003-Ohio-2844, ¶ 7, quoting State v. Post, 32

Ohio St.3d 380, 384 (1987), quoting State v. White, 15 Ohio St.2d 146, 151 (1968). Assuming

the statements at issue are hearsay, Mr. Rini has not pointed to any evidence indicating that trial

court considered them in finding him guilty, nor has this Court found any evidence of the same

in reviewing the record.

       {¶14} Assuming that the testimony referenced in Mr. Rini’s merit brief constituted

inadmissible hearsay, it is also evident from the proceedings that Mr. Rini’s counsel intended to

call Ms. Neuendorff as a witness. As a result Mr. Rini’s trial counsel asked questions concerning

what Ms. Neuendorff said and actually played portions of the video during cross-examination.

For example, Mr. Rini asserts that the following exchange contains inadmissible hearsay:

       [Mr. Rini’s Counsel]: Are there any phone calls with Mr. Rini directly?

       [Agent Stayrook]: There is one during the video that [Ms. Neuendorff] said she’s
       calling him.
                                                 8


       {¶15} To the extent Mr. Rini complains about the admission of this testimony, we see no

merit to his argument. Mr. Rini’s counsel posed the question, and it would seem that Mr. Rini’s

counsel invited any error that might be present. See State v. Armstrong, 152 Ohio App.3d 579,

2003-Ohio-2154, ¶ 41 (9th Dist.). Mr. Rini’s argument is similarly hampered with respect to the

portions of the video and accompanying audio that Mr. Rini’s counsel replayed during the cross-

examination of Agent Bors.

       {¶16} Mr. Rini points to other instances in the transcript that he believes constitute

inadmissible hearsay. He asserts that the statements were admitted “to prove Mr. Rini was

speaking with Ms. Neuendorff on the phone and that Mr. Rini had agreed to make a drug

transaction with her[,]” and that they were vital to the State’s case. Mr. Rini argues that the

“only thing that ties Mr. Rini to the drug trafficking is Ms. Neuendorff[’s] statements.” Even

assuming that all the statements at issue were inadmissible hearsay, we cannot say that their

admission affected the outcome of the trial. See Hardges, 2008-Ohio-5567, at ¶ 9, quoting

Barnes, 94 Ohio St3d at 27.     As noted above, Agent Bors was present for the transaction and

testified to what he observed.      There is no assertion that Agent Bors’ description of his

participation in the transaction or his observations of it would somehow constitute hearsay. Nor

is there any argument that Mr. Rini’s own statements would be inadmissible. Agent Bors’

testimony about his observations and participation in the events provided ample circumstantial

evidence that Mr. Rini sold heroin in the vicinity of juveniles. Moreover, the concern Mr. Rini

expressed to Agent Bors about police being in the area, provides additional circumstantial

evidence that Mr. Rini was involved in the drug transaction. We cannot say that the admission

of the testimony, video with audio and phone calls concerning the details and setup of the

transaction affected the outcome of the trial.
                                                  9


       {¶17} In light of all of the foregoing, and given Mr. Rini’s limited argument, we cannot

say that the trial court committed plain error in admitting the evidence it did, nor is there

evidence that the trial court relied on inadmissible evidence in reaching its determination. Mr.

Rini’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN FINDING AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE THAT JEFFREY RINI VIOLATED OHIO
       REVISED CODE SECTION 2925.03(A)(1).

       {¶18} Mr. Rini asserts in his third assignment of error that the trial court’s finding of

guilt was against the manifest weight of the evidence. We do not agree.

       {¶19} In reviewing a challenge to the weight of the evidence, the appellate court

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶20} Mr. Rini raises similar issues to those discussed in his first and second

assignments of error. He focuses on the fact that Agent Bors did not see what Mr. Rini gave to

Ms. Neuendorff in the hand-to-hand transaction and, thus, he argues that the weight of the

evidence does not support the finding of guilt.

       {¶21} At trial, Mr. Rini’s counsel focused on the theory that Mr. Rini handed Ms.

Neuendorff something other than drugs during the transaction. Mr. Rini’s counsel pointed out to

Agent Bors that, when Agent Bors and the confidential informant arrived on the scene, Ms.

Neuendorff asked them for a cigarette and they did not have one. Additionally, Mr. Rini’s

counsel observed from the video that Ms. Neuendorff did not have a cigarette when she entered
                                                 10


Mr. Rini’s vehicle but that she did have one when exiting. Agent Bors acknowledged it was

possible that Ms. Neuendorff owed Mr. Rini money and Mr. Rini gave her something other than

drugs and acknowledged that the two were neighbors. In addition, Mr. Rini’s counsel brought up

the fact that Mr. Rini’s van had lettering on the side indicating a taxi, thereby implying an

alternate theory for why Mr. Rini and Ms. Neuendorff interacted in the manner they did.

       {¶22} While Mr. Rini’s counsel did bring out testimony that suggested an alternate

theory of the case, we cannot say after a thorough review of the record that the finding of guilt is

against the manifest weight of the evidence. Ms. Neuendorff received money, took the money

down to Mr. Rini’s vehicle, got into the vehicle, a hand-to-hand transaction occurred, and Ms.

Neuendorff returned with bindles containing heroin. All of this activity took place in the vicinity

of Ms. Neuendorff’s two children. While it is possible that Ms. Neuendorff had the heroin all

along and was just setting Mr. Rini up, we cannot say that the trier of fact lost its way in finding

that Mr. Rini sold heroin in the vicinity of a juvenile. Accordingly, Mr. Rini’s third assignment

of error is overruled.

                                 ASSIGNMENT OF ERROR IV

       THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
       COUNSEL THROUGH INEFFECTIVE REPRESENTATION.

       {¶23} Mr. Rini asserts in his fourth assignment of error that he was denied his right to

counsel due to his trial counsel’s ineffectiveness. We do not agree.

       {¶24} In order to prevail on an ineffective assistance of counsel claim, a defendant

“must show (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio
                                                11


St.3d 22, 2007–Ohio–4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687–688, 694

(1984).

          {¶25} Mr. Rini points to trial counsel’s failure to object to the numerous allegedly

inadmissible hearsay statements discussed in his first assignment of error as well as trial

counsel’s failure to object to several leading questions and the admission of testimony related to

a drug overdose in the area.

          {¶26} With respect to trial counsel’s failure to object to the allegedly inadmissible

hearsay, as noted above, it is apparent from the record that trial counsel anticipated that Ms.

Neuendorff would be called as a witness and be subject to cross-examination, thus, likely

eliminating at least some of the hearsay concerns. See Evid.R. 801(D)(1) (noting instances in

which out of court statements are not hearsay when the declarant is subject to cross-

examination). After Agent Bors finished testifying, the prosecutor stated that it was the State’s

understanding that the trial would be continued so that Ms. Neuendorff could be brought in to

testify. Both the State and the defense indicated a desire to have Ms. Neuendorff brought in to

testify. The trial was continued and a warrant for removal was filed. Nonetheless, on the day

that the trial resumed, neither side opted to call Ms. Neuendorff as a witness. Thus, trial

counsel’s failure to object and the manner in which trial counsel questioned the State’s

witnesses, which directly referenced, and in some instances replayed, the now objected to

testimony, appears to be trial strategy. See State v. Carter, 72 Ohio St.3d 545, 558 (1995)

(“Judicial scrutiny of counsel’s performance is to be highly deferential, and reviewing courts

must refrain from second-guessing the strategic decisions of trial counsel. To justify a finding of

ineffective assistance of counsel, the appellant must overcome a strong presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.”). While we
                                                12


are uncertain based upon the record why trial counsel opted not to call Ms. Neuendorff where it

is obvious that such was intended previously, there is nothing which indicates that that decision

was not also part of trial counsel’s strategy. See State v. Treesh, 90 Ohio St.3d 460, 490 (2001)

(“Generally, counsel’s decision whether to call a witness falls within the rubric of trial strategy

and will not be second-guessed by a reviewing court.”).

       {¶27} With respect to any possible remaining hearsay issues, the leading questions, and

the introduction of testimony concerning an overdose in the area, Mr. Rini has not convinced us

that there is a reasonable probability that the outcome of the trial would have been different if

counsel would have proceeded differently. See Mundt, 115 Ohio St.3d 22, 2007–Ohio–4836, at

¶ 62, citing Strickland, 466 U.S. at 687–688, 694. Accordingly, we overrule Mr. Rini’s fourth

assignment of error.

                                 ASSIGNMENT OF ERROR V

       THE COURT FAILED TO INSTRUCT THE DEFENDANT AT SENTENCING
       OF THE POSSIBLE IMPOSITION OF POST[-] RELEASE CONTROL.

       {¶28} Mr. Rini asserts in his fifth assignment of error that the trial court erred in failing

to mention post-release control at his sentencing hearing. The State concedes the trial court

failed to make the proper notification pursuant to R.C. 2967.28(B), (C). We agree.

       {¶29} The Supreme Court of Ohio stated in State v. Qualls, 131 Ohio St.3d 499, 2012-

Ohio-1111, ¶ 18, that

       in order to comply with separation-of-powers concerns and to fulfill the
       requirements of the postrelease-control-sentencing statutes, especially R.C.
       2929.19(B) and 2967.28, a trial court must provide statutorily compliant
       notification to a defendant regarding postrelease control at the time of sentencing,
       including notifying the defendant of the details of the postrelease control and the
       consequences of violating postrelease control.
                                                13


       {¶30} Because Mr. Rini did not receive notification about his post-release control

obligations, he is entitled to a hearing limited to the correct imposition of post-release control.

See id. at ¶ 23; R.C. 2929.191. Mr. Rini’s fifth assignment of error is sustained.

                                 ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ERRED IN ORDERING AN 18 MONTH SENTENCE
       CONTRARY TO THE SENTENCING PRINCIPLES IN OHIO REVISED
       CODE 2929.11[.]

       {¶31} Mr. Rini asserts in his sixth assignment of error that the trial court erred in

sentencing him to 18 months. We do not agree.

       {¶32} A plurality of the Supreme Court of Ohio held that appellate courts should

implement a two-step process when reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d

23, 2008–Ohio–4912, ¶ 26. The Court stated:

       First, they must examine the sentencing court’s compliance with all applicable
       rules and statutes in imposing the sentence to determine whether the sentence is
       clearly and convincingly contrary to law. If this first prong is satisfied, the trial
       court’s decision in imposing the term of imprisonment is reviewed under the
       abuse-of-discretion standard.

Id.

       {¶33} Mr. Rini was sentenced to 18 months in prison, which is the maximum prison

term for a fourth-degree felony. See R.C. 2929.14(A)(4). Mr. Rini’s sole argument with respect

to the validity of his 18 month sentence is that the trial court failed to comply with R.C.

2929.11(B) because Ms. Neuendorff received a much less severe sentence for her similar

conduct. R.C. 2929.11(B) states in part that, “[a] sentence imposed for a felony shall be * * *

consistent with sentences imposed for similar crimes committed by similar offenders.”

       {¶34} Mr. Rini presented no evidence to the trial court indicating that Ms. Neuendorff

was similarly situated to him or that Ms. Neuendorff received a disproportionately shorter
                                                 14


sentence. Accordingly, Mr. Rini’s argument on appeal must fail. Further, the trial court, in

sentencing Mr. Rini, noted that Mr. Rini’s record revealed that he had “nine felony convictions,

16 misdemeanor convictions, three DUI convictions, six separate prison terms. He’s found to be

a parole violator on ten separate occasions. He committed the present offense one day before

turning himself in to the county in order to get a 180-day jail sentence[.]” Mr. Rini has not

asserted that the presentence investigation report was inaccurate or that the trial court’s recitation

of Mr. Rini’s criminal history is inaccurate. Further, the presentence investigation report has not

been made a part of the record on appeal. See State v. Unik, 9th Dist. No. 11CA009996, 2012-

Ohio-307, ¶ 7. Based upon Mr. Rini’s limited argument, and the fact that this Court has

discovered nothing in the record to indicate Mr. Rini’s sentence is contrary to law or that the trial

court abused its discretion in imposing it, we overrule Mr. Rini’s sixth assignment of error.

                                                 III.

       {¶35} In light of the foregoing, we sustain Mr. Rini’s fifth assignment of error and

overrule his remaining assignments of error. The judgment of the Medina County Court of

Common Pleas is affirmed in part, reversed in part, and the matter is remanded for proceedings

consistent with this opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

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

Pleas, County of Medina, 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.
                                                15


       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 equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, P. J.
CONCURS.

CARR, J.
CONCURRING.

       {¶37} Although I concur in the majority opinion, I write separately to note that I would

overrule the fourth assignment of error solely on the basis that Rini has not demonstrated that he

was prejudiced by defense counsel’s performance at trial.


APPEARANCES:

SEAN BUCHANAN, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
