[Cite as State v. Peterson, 2016-Ohio-1334.]


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

STATE OF OHIO                                         C.A. No.       27890

          Appellee

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LUKE VICTOR PETERSON                                  COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
          Appellant                                   CASE No.   CR 2014 09 2954 (B)

                                  DECISION AND JOURNAL ENTRY

Dated: March 30, 2016



          MOORE, Presiding Judge.

          {¶1}   Defendant-Appellant Luke Peterson appeals from the judgment of the Summit

County Court of Common Pleas. We affirm.

                                                 I.

          {¶2}   After being bound over from juvenile court, Mr. Peterson was indicted on four

counts of aggravated robbery, along with four accompanying firearm specifications, and one

count of carrying a concealed weapon. Mr. Peterson pleaded guilty to the four counts of

aggravated robbery and one firearm specification. The remaining count and specifications were

dismissed. The trial court sentenced Mr. Peterson to an aggregate sentence of nine years in

prison.

          {¶3}   Mr. Peterson has appealed, raising two assignments of error for our review.
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                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IMPOSING
       SENTENCE UPON [MR. PETERSON.]

       {¶4}    Mr. Peterson argues in his first assignment that the trial court erred in sentencing

him to six years on each count of aggravated robbery.

       {¶5}    Recently, in State v. Marcum, Slip Opinion No. 2016-Ohio-1002, the Ohio

Supreme Court revisited the law applicable to an appellate court’s review of felony sentences.

The Supreme Court held that, pursuant to R.C. 2953.08(G)(2), “an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing evidence that

the record does not support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” Id. at ¶ 1. The Supreme Court acknowledged that not all felony

sentences would require the findings listed in R.C. 2953.08(G)(2)(a). Id. at ¶ 23. In those cases,

appellate courts are “to review those sentences that are imposed solely after consideration of the

factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing

court.” Id. “That is, an appellate court may vacate or modify any sentence that is not clearly and

convincingly contrary to law only if the appellate court finds by clear and convincing evidence

that the record does not support the sentence.” Id.

       {¶6}    On appeal, Mr. Peterson maintains that the trial court failed to consider R.C.

2929.12(C)(2)-(4) in imposing his sentence. At the sentencing hearing, the trial court stated that

it considered the relevant sentencing factors.         While it did not specifically reference R.C.

2929.12 at the hearing, it did so in its sentencing entry. Moreover, this Court has said “where the

trial court does not put on the record its consideration of [Sections] 2929.11 and 2929.12 [of the

Ohio Revised Code], it is presumed that the trial court gave proper consideration to those
                                                 3


statutes.” (Internal quotations and citations omitted.) State v. Beach, 9th Dist. Summit Nos.

26021, 27124 , 2015-Ohio-3445, ¶ 46.

       {¶7}    In an effort to rebut this presumption and support his argument that the trial court

failed to consider R.C. 2929.12(C)(2)-(4), Mr. Peterson relies upon information contained in the

presentence investigation report (“PSI”) and the Aid in Sentencing report. However, these

documents are not part of the record on appeal, despite the fact that this Court granted Mr.

Peterson’s motion to supplement the record. “It is the appellant’s responsibility to ensure that

the record on appeal contains all matters necessary to allow this Court to resolve the issues on

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

App.R. 9. “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.” Yuncker at ¶ 17. “In cases such as

this where the PSI is necessary to enable an appropriate review of the propriety of the sentence,

[Mr. Peterson’s] failure to ensure that the record includes the PSI requires a presumption of

regularity in the sentencing proceedings.” Id.

       {¶8}    Mr. Peterson’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
       TO MERGE COUNTS 5, 6, 7, AND 8.

       {¶9}    Mr. Peterson argues in his second assignment of error that, because the

aggravated robbery offenses were allied offenses, they should have merged for purposes of

sentencing.

       {¶10} “We apply a de novo standard of review in reviewing a trial court’s R.C. 2941.25

merger determination.” (Internal quotations and citations omitted.) State v. Colburne, 9th Dist.
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Summit No. 27553, 2015-Ohio-4348, ¶ 5.        “In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-

995, the Supreme Court of Ohio clarified how courts are to determine whether offenses are allied

within the meaning of the statute.” Colburne at ¶ 6. “At its heart, the allied-offense analysis is

dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.

[Thus, t]he evidence at trial or during a plea or sentencing hearing will reveal whether the

offenses have similar import.” State v. Evett, 9th Dist. Medina No. 14CA0008-M, 2015-Ohio-

2722, ¶ 36, quoting Ruff at ¶ 26. “[C]ourts must ask three questions when [a] defendant’s

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance?

(2) Were they committed separately? and (3) Were they committed with separate animus or

motivation? An affirmative answer to any of the above will permit separate convictions.” Evett

at ¶ 36, quoting Ruff at ¶ 31. “[T]wo or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving

separate victims or if the harm that results from each offense is separate and identifiable.” Evett

at ¶ 36, quoting Ruff at ¶ 26.

        {¶11} Here, there is no dispute that the aggravated robbery offenses involved four

separate victims. Accordingly, the trial court did not err in concluding that Mr. Peterson’s

conduct supported multiple convictions because the offenses were of dissimilar import. See Ruff

at ¶ 26, 31.

        {¶12} Mr. Peterson’s second assignment of error is overruled.

                                               III.

        {¶13} The judgment of the Summit Count Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
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       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 Summit, 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.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

CHARLES W. OLMINSKY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
