[Cite as State v. Miller, 2011-Ohio-2403.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 95684




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  RAYMOND MILLER
                                                      DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED


                          Criminal Appeal from the
                  Cuyahoga County Court of Common Pleas
     Case Nos. CR-225759, CR-225777, CR-225778, CR-225779, CR-225780,
             CR- 225781, CR-225782, CR-227170, and CR-227351

        BEFORE:              Sweeney, J., Stewart, P.J., and Keough, J.

    RELEASED AND JOURNALIZED:                            May 19, 2011
FOR APPELLANT
Raymond A. Miller, Pro Se
No. 582-394
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mary McGrath, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-appellant Raymond A. Miller (“defendant”) appeals the

trial court’s denial of his motion to resentence him for multiple felonies to

which he pled guilty to and received his sentences for in 1988. In the interim,

defendant has been released and returned to prison for new convictions and to

serve out the balance of the sentences that underlie this appeal.          The

gravamen of defendant’s motion for resentencing is that the trial court did not

advise him of his appellate rights in accordance with Crim.R. 32(B)(2). The

trial court denied the motion from which defendant has appealed.
      {¶ 2} Defendant’s sole assignment of error provides: “The trial court

erred and violated Appellant’s due process rights when it did not advise him of

his appellate rights at sentencing hearing.”

      {¶ 3} Defendant relies on State v. Hunter, Cuyahoga App. No. 92626,

2010-Ohio-657, and contends he is entitled to a new sentencing hearing on the

grounds that he was not advised of his appellate rights pursuant to Crim.R.

32(B)(2). The rule requires that “after imposing sentence in a serious offense,

the court shall advise the defendant of the defendant’s right, where applicable,

to appeal or to seek leave to appeal the sentence imposed.” Crim.R. 32(B)(2).

In Hunter, this court found it was “clear” from the record that the trial court

failed to advise Hunter of his right to appeal his sentence in violation of

Crim.R. 32. Id. at ¶17. We are unable to make that determination from the

record that is before us in this case.

      {¶ 4} In support of his motion, defendant attached the 1988 sentencing

journal entries to his motion for resentencing but presented no other evidence

as to what transpired at the sentencing hearing. The record does not contain

the transcripts of the sentencing hearing, if still available, or any alternative

form of the record as permitted by App.R. 9. See State v. Kennedy (Dec. 9,

1993), Cuyahoga App. No. 64065. “Absent a complete and adequate record,

‘[a]n appellate court reviewing a lower court’s judgment indulges in a

presumption of regularity of the proceedings below.’” State v. Miller, Putnam
App. No. 12-10-13, 2011-Ohio-1459, ¶9 (holding it “must presume that the

trial court properly informed [defendant] of his right to appeal” where the

transcript of the sentencing hearing is not provided.)

      {¶ 5} We note that defendant seeks the resentencing in order to “restart

the clock to file a timely appeal that was denied him twenty-three (23) years

ago by the ineffectiveness of his Juvenile counsel and Common Pleas court

counsel.” The record reflects that defendant has challenged the effectiveness

of his counsel as well as the validity of his pleas through the numerous

motions and petitions he has filed throughout the years in the underlying

cases. The trial court denied these motions and petitions and defendant did

not pursue the matters on appeal.

      {¶ 6} For the above reasons, the trial court did not err by denying

defendant’s motion for resentencing and this assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant's

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.
     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE

MELODY J., STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
