[Cite as State v. Turner, 2011-Ohio-4522.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :
                                             :
        Plaintiff-Appellee                   :
                                             :
-vs-                                         :
                                             :
TIMOTHY TURNER                               :
                                             :
        Defendant-Appellant                  :

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.


Case No. 11-COA-006

OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Municipal Court, Case No.
                                                 10CRB01153



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT ENTRY:                          September 1, 2011




APPEARANCES:
For Plaintiff-Appellee                      For Defendant-Appellant

W. DAVID MONTAGUE                           TIMOTHY TURNER, PRO SE
1213 East Main Street                       1454 Galaxy Drive
Ashland, OH 44805                           Mansfield, OH 44903

Farmer, J.

       {¶1}   On October 20, 2010, a complaint was filed against appellant, Timothy

Turner, alleging one count of menacing in violation of R.C. 2903.22 and one count of

disorderly conduct in violation of R.C. 2917.11. On October 22, 2010, appellant pled

not guilty.

       {¶2}   On January 11, 2011, the state filed an amended complaint, reducing the

menacing count to attempted menacing. On same date, appellant pled no contest to

the charges. The trial court found appellant guilty and ordered him to pay an aggregate

fine of $300.00 plus court costs. A final judgment order was filed on February 18, 2011.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

       {¶4}   "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR

PREJUDICIAL TO THE DEFENDANT-APPELLANT BY ASSUMING JURISDICTION

OVER A COMPLAINT WHICH WAS NOT PROPERLY EXECUTED."

                                           II

       {¶5}   "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR

PREJUDICIAL TO THE DEFENDANT-APPELLANT BY ACCEPTING THE PLEA OF

NO-CONTEST WITHOUT THE DEFENDANT UNDERSTANDING THE CHARGES

AGAINST HIM."
                                             III

       {¶6}   "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR

PREJUDICIAL TO THE DEFENDANT-APPELLANT BY ACCEPTING THE PLEA OF

NO-CONTEST WHEN THE AMENDED COMPLAINT WAS NOT FILED UNTIL AFTER

A FINAL JUDGMENT HAD BEEN RENDERED."

                                             IV

       {¶7}   "AS A MATTER OF LAW, THE TRIAL COURT COMMITTED ERROR

PREJUDICIAL TO THE DEFENDANT-APPELLANT BY CONVICTING HIM AND

SENTENCING HIM ON A NO-CONTEST PLEA SINCE THE STATEMENT AND

EXPLANATION        OF FACTS        AND    CIRCUMSTANCES           PRESENTED        BY    THE

PROSECUTION WERE INSUFFICIENT TO MEET ALL THE ELEMENTS OF THE

CHARGED CRIMES."

                                            I, III

       {¶8}   Under these assignments of error, appellant challenges the trial court's

jurisdiction to accept his no contest plea to the reduced charge of attempted menacing.

Appellant claims the amended complaint was not filed prior to entering his plea and was

not properly executed. We disagree.

       {¶9}   Because a transcript was not filed, we are left to address these

jurisdictional challenges via the trial court's journalized entries. In a judgment order filed

February 18, 2011, the trial court memorialized the reduced charge as follows:

       {¶10} "WHEREAS, on January 11, 2011, an amended complaint was filed by the

Assistant Law Director to amend the charge of Menacing to Attempted Menacing, and

the Defendant entered a plea of No Contest to the amended complaint."
       {¶11} Upon review, we find this judgment order sufficiently established the trial

court's jurisdiction.

       {¶12} Assignments of Error I and III are denied.

                                            II, IV

       {¶13} Under these assignments of error, appellant challenges the sufficiency of

the facts given his no contest plea, and the trial court's failure to determine that the plea

was knowingly and intelligently entered. Appellant claims he did not understand the

amended charge, and the facts presented by the prosecutor did not establish or support

a conviction. We disagree.

       {¶14} As we noted in the previous assignments of error, a transcript was not

filed. In Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, the Supreme

Court of Ohio held the following:

       {¶15} "The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing

error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d

162. This principle is recognized in App.R. 9(B), which provides, in part, that '***the

appellant shall in writing order from the reporter a complete transcript or a transcript of

such parts of the proceedings not already on file as he deems necessary for inclusion in

the record.***.' When portions of the transcript necessary for resolution of assigned

errors are omitted from the record, the reviewing court has nothing to pass upon and

thus, as to those assigned errors, the court has no choice but to presume the validity of

the lower court's proceedings, and affirm." (Footnote omitted.)
      {¶16} The result of the failure to file a transcript is that we are left with the

presumption of regularity and the trial court's judgment order which included the

following statements:

      {¶17} "WHEREAS, on January 11, 2011, the Defendant with counsel present

stated that he was freely and voluntarily withdrawing his plea of Not Guilty and entering

a plea of No Contest to the charge of Disorderly Conduct in violation of O.R.C.

2917.11A1.

      {¶18} "Thereupon, the Court Granted permission to the Defendant to withdraw

his former plea of Not Guilty and accepted a plea of No Contest.

      {¶19} "The Court made its FINDINGS, to wit:

      {¶20} "Based on the facts stated in the complaint and on the State's explanation

of the circumstances existing at the time of the violation the Court found the Defendant

Guilty to the above aforesaid charge in violation of O.R.C. 2903.22A and Guilty to the

above aforesaid charge in violation of O.R.C. 2917.11A1.           Counsel for Defendant

having been given an opportunity to speak on behalf of Defendant, and Defendant

having personally been given the opportunity to make a statement in his own behalf and

present information in mitigation and no good and sufficient cause being shown to

mitigate punishment and nothing said by Defendant as to why sentence should not be

imposed, SENTENCE AND JUDGMENT WAS PRONOUNCED AS FOLLOWS:

      {¶21} "For the above state offense in violation of O.R.C. 2903.22A, the

Defendant was sentenced to pay a fine of $150.00 plus court costs.

      {¶22} "For the above stated offense in violation of O.R.C. 2917.11A1, the

Defendant was sentenced to pay a fine of $150.00."
       {¶23} Upon review, we find the trial court's judgment order established that

sufficient facts were presented and appellant's plea was knowingly and intelligently

entered into.

       {¶24} Assignments of Error II and IV are denied.

       {¶25} The judgment of the Municipal Court of Ashland County, Ohio is hereby

affirmed.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.




                                           _s/ Sheila G. Farmer__________________




                                           _s/ W. Scott Gwin____________________




                                           _s/ Julie A. Edwards__________________

                                                          JUDGES

SGF/sg 0802
          IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT



STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                   :        JUDGMENT ENTRY
                                       :
TIMOTHY TURNER                         :
                                       :
       Defendant-Appellant             :        CASE NO. 11-COA-006




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Ashland County, Ohio is affirmed.   Costs to

appellant.




                                       _s/ Sheila G. Farmer__________________




                                       _s/ W. Scott Gwin____________________




                                       _s/ Julie A. Edwards__________________

                                                      JUDGES
