[Cite as State v. Furman, 2014-Ohio-20.]


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

STATE OF OHIO                                       C.A. No.      26825

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
SAMANTHA L. FURMAN                                  COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 11 09 2587 (D)

                                 DECISION AND JOURNAL ENTRY

Dated: January 8, 2014



        HENSAL, Judge.

        {¶1}    Samantha Furman appeals her 18-year sentence for aggravated burglary and

aggravated robbery from the Summit County Court of Common Pleas. For the following

reasons, this Court affirms.

                                               I.

        {¶2}    The following facts were recited by the prosecutor at Ms. Furman’s resentencing

hearing. Ms. Furman worked as a home health-care aide. While she was assigned to care for

James Allen, she told Michael Louthian how he could enter Mr. Allen’s house and where he

could find items of value in the house. On June 25, 2011, Mr. Louthian entered Mr. Allen’s

house with two other men. When they got inside, they were surprised to find that Mr. Allen was

awake, so they went back outside. A short time later, they reentered the house, assaulted Mr.

Allen, and took some of his personal property. Ms. Furman was scheduled to work at Mr.

Allen’s house the next day, but she did not show up. The following day, a home meal-delivery
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volunteer found Mr. Allen on the floor of his house unconscious. Ms. Furman later contacted

law enforcement officers and told them that Mr. Louthian had been involved in the incident.

       {¶3}    Although Ms. Furman claimed that the only reason she told Mr. Louthian about

Mr. Allen’s house was because he threatened her and her family, the Grand Jury indicted her for

aggravated burglary, aggravated robbery, felonious assault, grand theft, and theft from elderly.

Ms. Furman pleaded guilty to aggravated burglary and aggravated robbery. The trial court found

that the charges were not allied offenses, sentenced her to nine years in prison for each offense,

and ordered the terms to run consecutively. On appeal, this Court reversed Ms. Furman’s

sentence and ordered the trial court to resentence her applying the Ohio Supreme Court’s

decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. On remand, the court

applied Johnson and imposed the same sentence. Ms. Furman has appealed, assigning two errors

that this Court will review together.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID
       NOT MERGE THE SENTENCES FOR AGGRAVATED BURGLARY AND
       AGGRAVATED ROBBERY WHICH WERE ALLIED OFFENSES OF
       SIMILAR [IM]PORT.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
       ERROR IN SENTENCING THE APPELLANT-DEFENDANT TO PRISON
       TERMS THAT WERE MORE THAN THE MINIMUM SENTENCE
       PRESCRIBED BY LAW.

       {¶4}    In her first assignment of error, Ms. Furman argues that the trial court incorrectly

found that the aggravated burglary and aggravated robbery charges were not allied offenses

under Revised Code Section 2941.25(A). According to her, she was not present during the
                                                3


crimes, she did not receive a portion of the stolen property, she was not aware that Mr. Allen had

been injured until two days after the incident, and she was the first person to provide information

to law enforcement about the attack.

       {¶5}    Under Section 2941.25(A), “[if] the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import, the indictment or information may

contain counts for all such offenses, but the defendant may be convicted of only one.” In

Johnson, the Supreme Court held that, “[w]hen determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must

be considered.” Johnson at syllabus.

       {¶6}    This Court has recognized “the challenges inherent in allowing a criminal

defendant to raise, on appeal, an allied offense attack to a negotiated guilty plea because the

reviewing court has a limited record of facts, if any, upon which to make an allied offenses

analysis.” State v. Vitt, 9th Dist. Medina No. 11CA0071-M, 2012-Ohio-4438, ¶ 10. The

analysis is even more difficult if the record is incomplete. In this case, one source of facts that

was available to the trial court was the presentence investigation report, which the trial court

ordered the probation department to prepare before Ms. Furman’s sentencing hearing. Under

Section 2951.03(A)(1), a presentence investigation report must include “an inquiry into the

circumstances of the offense * * *.” Id. at ¶ 13. Section 2929.19(B)(1) provides that, if a

presentence investigation report is prepared in a case, the trial court must consider it before

imposing sentence.

       {¶7}    In this case, the record indicates that a presentence investigation was prepared,

and the prosecutor specifically referred to it at Ms. Furman’s first sentencing hearing. According

to the prosecutor, the report contained “many of the facts that are laid out in regards to the
                                                   4


incident[.]” The presentence investigation report, however, has not been made part of the

appellate record.     Under Appellate Rule 9, it was Ms. Furman’s “burden of providing an

adequate record of the trial court’s proceedings, including all the necessary transcripts and

documents, for this Court’s review.” Vitt at ¶ 12, quoting State v. Zeffer, 9th Dist. Summit Nos.

19893, 19963, 2000 WL 1825092, *7 (Dec. 13, 2000). In light of the fact that the record does

not contain the presentence investigation report, we do not have the same information that the

trial court had when it determined whether Ms. Furman’s offenses were allied under Section

2941.25(A).    Accordingly, as in Vitt, “we must presume the validity of the trial court’s

sentencing with regard to its determination, pursuant to Johnson,” that the aggravated burglary

and aggravated robbery offenses do not merge. Id. at ¶ 13. Ms. Furman’s first assignment of

error is overruled.

       {¶8}    In her second assignment of error, Ms. Furman argues that the trial court abused

its discretion when it sentenced her to more than the minimum sentence and ordered the

sentences to run consecutively. She asserts that the only reason she told Mr. Louthian about Mr.

Allen’s house is because he threatened her. She also notes that she was not present during the

incident, and contends that she contacted law enforcement with information about the crimes as

soon as she learned that Mr. Allen had been injured. She also asserts that she does not have a

criminal record and was remorseful for her acts.

       {¶9}    As with her first assignment of error, because the record does not contain the

presentence investigation report, this Court is not able to adequately review the circumstances of

the offense, Ms. Furman’s criminal history, or the affect that the offenses had on Mr. Allen. See

Vitt at ¶ 13, citing R.C. 2951.03(A)(1). We, therefore, must presume the validity of the sentence

that the trial court imposed. Id. at ¶ 15. Ms. Furman’s second assignment of error is overruled.
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                                                III.

       {¶10} Because the appellate record does not contain the presentence investigation

report, we must presume the validity of Ms. Furman’s sentence. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



CARR, P. J.
WHITMORE, J.
CONCUR.
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APPEARANCES:

KERRY O’BRIEN, Attorney at Law, for Appellant.

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