[Cite as State v. Little, 2014-Ohio-1342.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                             LAKE COUNTY, OHIO


STATE OF OHIO,                                        :       OPINION

                  Plaintiff-Appellee,                 :
                                                              CASE NO. 2012-L-093
         - vs -                                       :

JEFFREY M. LITTLE,                                    :

                  Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No.
11CR000740.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Aaron T. Baker, 38109 Euclid Avenue, Willoughby, OH                   44094 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

         {¶1}     Appellant, Jeffrey M. Little, appeals his conviction, following a guilty plea,

to two counts of robbery.              Appellant argues the trial court erred in continuing his

sentencing hearing to make findings in support of his consecutive sentences because

the record does not show he was present at the continued hearing. At issue is whether

the record shows that appellant was not present at his sentencing hearing. For the

reasons that follow, we affirm.
       {¶2}   On March 9, 2012, appellant was charged by information with two counts

of robbery, each being a felony of the second degree, in violation of R.C 2911.02(A)(2).

Appellant and the state entered a plea bargain pursuant to which appellant would plead

guilty to both counts and the state would recommend no more than ten years in prison.

On March 23, 2012, appellant waived his right to prosecution by indictment, and

requested that he be charged by information. On the same date, appellant pled guilty to

both counts of robbery. The trial court found that appellant’s guilty plea was voluntarily

entered; accepted his plea; found him guilty of both charges of robbery; and deferred

sentencing for a pre-sentence report.

       {¶3}   The record reflects that on November 8, 2011, at about 11:30 p.m., the

victims Sara Mooney and Stephanie Vivod were standing in front of a restaurant in

downtown Willoughby when appellant walked passed them. The two women walked

across the street to Ms. Vivod’s car. While they were talking, appellant approached

them and said, “I don’t want to have to hurt you, give me your purses.” As appellant

walked toward Ms. Vivod, she ran away from him and appellant chased her in the

middle of the street. Appellant yelled out to her, “I’ll cut you.” At that point, Ms. Mooney

saw appellant pull out a knife. She shouted to Ms. Vivod, “run, he’s got a knife.” Ms.

Vivod took off running and appellant then began chasing Ms. Mooney. A truck suddenly

approached the scene and appellant fled down a nearby alley.

       {¶4}   Later that same night, at about 1:00 a.m., on November 9, 2011, appellant

approached the victim Vince Canganelli outside a restaurant in nearby Willoughby Hills.

Appellant pulled out a knife and placed the blade up to Mr. Canganelli’s neck,

demanding his wallet. Mr. Canganelli gave appellant his wallet containing $35 and




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various credit and debit cards. Appellant then ran away. Later that night, appellant

used Mr. Canganelli’s debit card to make purchases at Wal Mart, Walgreen’s, and a

Shell gas station, totaling $1,200.

       {¶5}   The court held appellant’s sentencing hearing on May 14, 2012.          The

record reflects that appellant and his attorney were present. Appellant’s counsel spoke

on appellant’s behalf and requested a six-year sentence. Appellant also addressed the

court, apologizing to the victims for his crimes.

       {¶6}   The victim Stephanie Vivod testified that appellant threatened to cut her

and chased her with a knife. She said that appellant’s crime has had such a huge

impact on her, it will affect her for the rest of her life. She asked that the court impose

the maximum sentence.

       {¶7}   Consistent with the parties’ plea bargain, the prosecutor recommended

that appellant be sentenced to a total of ten years in prison.

       {¶8}   The court noted that in 1996, appellant was convicted of theft. In 1998, he

was convicted of leaving the scene of an accident. Later that year, he was convicted of

assault. In 2001, he was convicted of drug abuse.          In 2002, he was convicted of

domestic violence. Later in 2002, he was convicted of possession of drugs. In 2003, he

was convicted of drug abuse. In 2005, he was convicted of robbery, a felony of the

second degree, for which he was sentenced to four years in prison. He was released

from prison in July 2009.      Then, in January 2010, he was convicted of disorderly

conduct. Later that year, he was convicted of contempt of court. The court noted that

just two years after appellant was released from prison in 2009 for another robbery, he

committed the robberies in this case.




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       {¶9}   The court sentenced appellant to two mandatory six-year terms in prison

for each count of robbery, the two terms to be served consecutively, for a total of 12

years in prison.

       {¶10} Two days after the court imposed appellant’s sentence, on May 16, 2012,

the court reconvened the parties for a continuation of the sentencing hearing for the

court to make the statutory findings necessary to support appellant’s consecutive

sentences.

       {¶11} After the court made these findings on the record, the court asked

appellant’s counsel if he had any objections to this continued sentencing hearing or if he

wanted the court to conduct “the whole sentencing hearing over again from beginning to

end.” Appellant’s counsel said, “No, Your Honor.”

       {¶12} Appellant did not timely appeal. Subsequently, he filed a motion for leave

to file a delayed appeal, which this court granted. He asserts the following for his sole

assignment of error:

       {¶13} “The record does not demonstrate that appellant was present for the May

16, 2012 sentencing hearing, and therefore, the trial court erred in sentencing appellant

in absentia in violation of Crim.R. 43(A).”

       {¶14} Appellant argues that, because the record does not show he was present

in court for the continuation of his sentencing hearing, the trial court erred in sentencing

him. The argument fails for several reasons.

       {¶15} First, we note that the prosecutor in her brief unconditionally states that

appellant was in fact present at the continued sentencing hearing on May 16, 2012.

Further, appellant does not dispute that he was present at this hearing.




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       {¶16} Moreover, contrary to appellant’s argument, the record shows that

appellant was present at the continued sentencing hearing. First, during that hearing,

the trial court stated on the record that, “we are present once again,” indicating that the

parties who were present at the May 14, 2012 sentencing hearing, which included

appellant, were once again present for the May 16, 2012 continued hearing.        Second,

the court’s sentencing entry, filed after the May 16, 2012 hearing, states that appellant

and his counsel were present in court for the sentencing.

       {¶17} Further, appellant fails to draw our attention to anything in the record

showing appellant was not present at the continued sentencing hearing. Without an

affirmative showing on the record that the trial court erred, the reviewing court must

presume the validity of the trial court proceedings.        State v. Bowens, 11th Dist.

Ashtabula No. 89-A-1463, 1991 Ohio App. LEXIS 3792, *26 (Aug. 9, 1991). In Bowens,

this court stated, “‘from what has been said about the presumption of validity and

regularity of proceedings below, it has always been the Ohio rule, and still is, that error

will not be presumed, but must be made to appear affirmatively on the record, or as it is

sometimes stated, the burden is upon the appellant to show that error has occurred.’”

Id., quoting 5 Ohio Jurisprudence 3d (1978) 114-115, Appellate Review, Section 554.

       {¶18} For the reasons stated in this opinion, the assignment of error is overruled.

It is the judgment and order of this court that the judgment of the Lake County Court of

Common Pleas is affirmed.



DIANE V. GRENDELL, J., concurs,

THOMAS R. WRIGHT, J., concurs with Concurring Opinion.




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                             _______________________

THOMAS R. WRIGHT, J., concurs with Concurring Opinion.



      {¶19} I agree with the majority’s conclusion that appellant failed to demonstrate

that he was not present at the continued sentencing hearing and that, therefore, we

must presume the regularity of the proceedings and affirm. However, I disagree with

the majority’s conclusion that the record establishes that appellant was actually present

at the continued sentencing hearing.

      {¶20} While the majority correctly notes that at the beginning of the continued

sentencing hearing the trial court stated, “we are present once again,” that does not

show that appellant was actually present. The use of the word “we” is nebulous to say

the least and its meaning and use in that context is anybody’s guess. “We” could mean

the court, both counsel but no appellant, or the court, both counsel and appellant.

Moreover, the judgment entry supporting the majority’s conclusion that appellant was

present at the continued sentencing hearing misstates its content. The judgment entry

does not even reference the continued sentencing hearing let alone state that appellant

was present. To the contrary, the entry simply states, “This day, to-wit: May 14, 2012,

this matter came on for [appellant’s] sentencing hearing * * *” and that appellant was

present that day. To construe that entry as a statement that appellant was also present

at the continued sentencing hearing is erroneous. The entry only states that appellant

was present on May 14, which is not at issue.

      {¶21} Nevertheless, for the reasons stated, I concur.




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