[Cite as State v. Polke, 2019-Ohio-904.]


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

STATE OF OHIO                                         C.A. No.       18CA0061-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DENNIS J. POLKE                                       MEDINA MUNICIPAL COURT
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   17CRB01395

                                  DECISION AND JOURNAL ENTRY

Dated: March 18, 2019



        HENSAL, Judge.

        {¶1}     Dennis Polke appeals a judgment of the Medina Municipal Court that sentenced

him to 180 days in jail for assault. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     A police officer charged Mr. Polke with one count of assault, two counts of

menacing, and one count of having an open container. Before trial, Mr. Polke agreed to plead

guilty or no contest to the assault charge, one of the menacing charges, and an amended charge

of trespass. The municipal court found him guilty of assault and dismissed the other charges. It

sentenced him to 180 days in jail and fined him $800. Mr. Polke has appealed, assigning five

errors, which we will address together.
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                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY FAILING TO FIND OR STATE
       CIRCUMSTANCES THAT MIGHT BE CONSIDERED THE WORST FORM
       OF THE OFFENSE IN WHICH A MAXIMUM PENALTY COULD BE
       IMPOSED.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE
       SENTENCING FACTORS AS ENUMERATED IN R.C. 2929.22 IN HIS
       MISDEMEANOR SENTENCING OF APPELLANT.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
       CONSIDER APPELLANT’S INDIGENT STATUS WHEN IT IMPOSED
       LARGE FINES AND COSTS IN THIS MATTER.

                                ASSIGNMENT OF ERROR IV

       THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

                                ASSIGNMENT OF ERROR V

       THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
       APPELLANT’S CIVIL RIGHTS WHEN IT SHOWED ACTUAL MALICE,
       RECKLESS INDIFFERENCE TO THE FACTS AND INTENSE PERSONAL
       BIAS.

       {¶3}   Mr. Polke argues that the municipal court incorrectly sentenced him to the

maximum jail term for assault because it did not find any facts that established that his conduct

was the worst form of the offense. He also argues that the court failed to consider the necessary

statutory factors before imposing his sentence. He argues that the court failed to consider the

fact that he is indigent when it imposed a $800 fine on him. Mr. Polke also argues that his trial

counsel was ineffective because he lied to him about the parameters of the plea agreement. He

further argues that the fact that his sentence does not fit with the character of the offense he
                                                3


committed demonstrates that the municipal court judge was biased and had a personal agenda to

punish him as severely as possible.

       {¶4}    Upon review of the record, we conclude that we are unable to review the merits of

Mr. Polke’s arguments because the record does not contain a transcript of his sentencing hearing.

Under Local Rule 5(A)(1)(a)(i), “[i]f the appellant desires a transcript of proceedings to be

prepared for inclusion in the record, the appellant must serve the court reporter with a praecipe *

* *.” We note that Mr. Polke filed a praecipe to the court reporter in his municipal court case.

According to the proof of service, Mr. Polke served the document on the clerk of courts, but not

on the court reporter. We also note that, although the document contains a place for the court

reporter to acknowledge receipt of the praecipe, it is not signed. We, therefore, conclude that

Mr. Polke did not comply with this Court’s local rule. We also note that Mr. Polke indicated on

his appellate docketing statement that the record would only consist of “the original papers,

exhibits, a certified copy of the docket and journal entries, and any transcripts of proceedings

that were filed in the trial court prior to final judgment.” The municipal court record does not

contain any transcript of proceedings.

       {¶5}    “It is an appellant’s duty to ensure that the record, or the portion necessary for

review on appeal, is filed with the appellate court.” Swedlow v. Riegler, 9th Dist. Summit No.

26710, 2013-Ohio-5562, ¶ 14, quoting Shumate v. Shumate, 9th Dist. Lorain No. 09CA009707,

2010-Ohio-5062, ¶ 6; App.R. 9(B). “[If] the transcript of a hearing is necessary to resolve

assignments of error, but such transcript is missing from the record, the reviewing court has ‘no

choice but to presume the validity of the lower court’s proceedings, and affirm.’” Shumate at ¶

9, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
                                                 4


       {¶6}    Because the record does not contain a transcript of the sentencing hearing, we are

unable to review the facts that the municipal court found before it sentenced Mr. Polke. We are

also unable to review whether the court considered the appropriate sentencing factors or the fact

that he was indigent. We are also unable to review the performance of Mr. Polke’s trial counsel.

Mr. Polke’s first, second, third, and fourth assignments of error are overruled.

       {¶7}    Regarding the municipal court’s alleged bias, Revised Code Section 2701.031

provides that, “[i]f a judge of a municipal * * * court allegedly * * * has a bias or prejudice for

or against a party * * * any party to the proceeding * * * may file an affidavit of disqualification

with the clerk of the supreme court.” The affidavit of disqualification is then decided by the chief

justice of the Ohio Supreme Court in accordance with Section 2701.03. R.C. 2701.031; R.C.

2701.03(E). We, therefore, conclude that we do not have authority to review Mr. Polke’s

allegations of judicial bias. State v. Hunter, 151 Ohio App.3d 276, 2002-Ohio-7326, ¶ 21 (9th

Dist.). Mr. Polke’s fifth assignment of error is overruled.

                                                III.

       {¶8}    Mr. Polke’s assignments of error are overruled. The judgment of the Medina

Municipal Court is affirmed.

                                                                                   Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, 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.
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       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




TEODOSIO, P.J.
CONCURS.

CARR, J.
CONCURRING.

       {¶9}    I concur in the majority opinion but write separately with respect to the fifth

assignment of error. To the extent that Polke attempts to raise a due process argument, as

opposed to a judicial bias argument, this Court cannot reach the merits of his argument given the

lack of a sentencing transcript.


APPEARANCES:

DENNIS J. POLKE, pro se, Appellant.

GREGORY HUBER and ROBERT B. CAMPBELL, Prosecuting Attorneys, for Appellee.
