[Cite as State v. Bartlett, 2014-Ohio-4379.]



                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                        No. 100769



                                        STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   DONALD BARTLETT
                                                     DEFENDANT-APPELLANT




                                     JUDGMENT:
                               AFFIRMED AND REMANDED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                         Case Nos. CR-13-571194-A and CR-13-576920-A

        BEFORE: Stewart, J., Blackmon, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                    October 2, 2014
ATTORNEY FOR APPELLANT

Mary Catherine O’Neill
Jordan & Sidoti, L.L.P.
50 Public Square
Terminal Tower, Suite 1900
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Glen Ramdhan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Donald Bartlett pleaded guilty to escape. That plea

made him a probation violator in two other cases in which he had been placed on

community control.      The court imposed concurrent, 18-month sentences on the

community control violations, to be served consecutively to a 10-month sentence on the

escape count. In this appeal, Bartlett claims that the court erred by imposing consecutive

sentences without making the findings required by R.C. 2929.14(C)(4) and that defense

counsel was ineffective for wrongly advising him that he would be not be sentenced for

his community control violations.

                                             I

       {¶2} Bartlett first raises issues relating to the court’s order that he serve his

sentences consecutively.

                                             A

       {¶3} R.C. 2929.14(C)(4) permits a court to impose consecutive sentences if it

determines that: (1) consecutive service is necessary to protect the public from future

crime or to punish the offender; (2) consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public;

and (3) one or more of the following three findings are satisfied:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.
       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

       {¶4}    The court made the requisite findings pursuant to R.C. 2929.14(C)(4),

precisely stating:

       Now, the ten months in this case is to run consecutively to the time that was
       just imposed, the 18 months in the other two cases, and that is because the
       Court finds that the consecutive sentence is necessary to protect the public
       from future crime and to punish the offender and consecutive sentences are
       not disproportionate to the seriousness of the offender’s conduct and to the
       danger the offender poses to the public. And the Court finds specifically
       the offender in this case, Mr. Bartlett, committed the crime in 576920 when
       he was under sanctions, specifically under community control sanctions in
       the prior two cases, and also, the offender’s history of criminal conduct
       demonstrates that consecutive sentences are necessary to protect the public
       from future crime by the offender.

Tr. 18-19.

       {¶5} The court’s findings were completely faithful to the text of R.C.

2929.14(C)(4). The imposition of consecutive sentences is, therefore, not contrary to

law. However, we remand this case to the trial court to put the findings for consecutive

sentences in the sentencing entry, nunc pro tunc, pursuant to State v. Bonnell, Slip

Opinion No. 2014-Ohio-3177.

                                            B
      {¶6} Bartlett next argues that the record does not support imposing consecutive

sentences. He states that consecutive sentences are disproportionate to the seriousness of

his offenses. He concedes that he has three convictions for escape, but argues that these

crimes were victimless and not serious enough to warrant the imposition of consecutive

sentences.

      {¶7} The trial court has discretion to order consecutive sentences. See State v.

Thompson, 8th Dist. Cuyahoga No. 99628, 2014-Ohio-202, ¶ 23. As an appellate court,

we cannot reverse a trial court’s decision to impose consecutive sentences as being an

abuse of discretion; we can only reverse consecutive sentences if we clearly and

convincingly find that the record does not support the sentencing court’s findings under

R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2).

      {¶8} Bartlett has such a lengthy history of failing to abide by the terms of his

community control that we cannot clearly and convincingly find that the court’s findings

are not supported by the record. The court described the following history of Bartlett’s

failure to comply with the terms of community control:

      On 7/13/12 the defendant was sentenced in Case No. 558743 to two years
      of community control with the following conditions: Supervised by group
      D; report weekly for three months and every two weeks thereafter; attend
      programming as indicated in the case plan; and the defendant was ordered
      to pay a monthly supervision fee of $20 and would be eligible for early
      termination request when all conditions were met. He was to submit to
      random drug testing. And the conditions and terms of the probation were
      subject to modification by the probation officer and approval of the Court.
      And he was required to pay court costs.

      On August 23rd, 2012, a capias was issued for the defendant due to his
      failure to report to the probation department after sentencing.
       On September 20th, 2012, the defendant was before the Court for his first
       violation hearing and the defendant was found to be in violation, continued
       with prior conditions, and ordered to successfully complete an inpatient
       treatment program at the Keating Center. And it was on January 7th, 2013,
       that Officer Jessica Alverado actually assumed the defendant’s supervision.
        The previous officer’s records reflect that the defendant completed
       treatment at the Keating Center on 11/26/12, but records indicated that the
       previous officer received a phone call from a caseworker at the Keating
       Center, specifically on November 27, 2012, stating that the, quote,
       defendant had a bad attitude and was contaminating the house, end quote.

       On February 1st, 2013, the Court issued a capias due to the defendant
       failing to report to probation department since 12/18/12, and the defendant
       also failed to report to the Adult Parole Authority as well.

       On February 19th, 2013, the defendant was indicted for escape in Case No.
       571194.

       And on June 19th, 2013, the defendant was before the Court for a second
       violation hearing in Case No. 558743 and sentenced in Case No. 571194.
       The defendant was continued under supervision in Case No. 558743 and
       sentenced to two years of community control with conditions associated
       with group D supervision in the second case, 571194.

       However, the defendant failed to report to the probation officer after the
       violation hearing sentencing on June 19th, 2013, and the Court was then
       notified and another capias was issued on July 24th, 2013. And of course
       then the defendant was indicted for escape in Case No. 576920 and pled
       guilty thereto, and we’re here for sentencing on that as well.

Tr. 4-7.

       {¶9} Bartlett’s conduct went well beyond what he rather casually describes as an

“apathy towards reporting to the Adult Parole Authority” — it was contempt for the

seriousness of community control even in the face of the court showing him lenity in past

situations where it could have found him to be a community control violator. On the

record before us, we cannot say that the consecutive sentence ordered was
disproportionate to Bartlett’s admitted history of ignoring the terms of community

control.

                                              II

       {¶10} Bartlett next claims that defense counsel told him prior to trial that he would

not be sentenced for his community control violations. He argues that defense counsel

was ineffective for so representing, thus rendering his guilty plea involuntary.

       {¶11} We summarily overrule this assignment of error because the record does not

show that defense counsel made any representations regarding whether Bartlett would be

sentenced for his community control violations. Bartlett concedes this point, stating:

“this point of emphasis was not made on the record, before the court, and holds no weight

as to his appeal but it does serve to reinforces [sic] the lack of voluntariness associated

with his plea.” Appellant’s Brief at 10. It is a fundamental principle of appellate review

that a reviewing court is limited to the record of proceedings at trial. Morgan v. Eads,

104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13.                By Bartlett’s own

admission, defense counsel’s statements are not in the record on appeal, so he cannot

exemplify his claimed error. See App.R. 12(A)(1)(b); App.R. 16(A)(7).

       {¶12} Judgment affirmed and remanded.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. Case remanded

to the trial court for correction of sentencing entry and execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., and
TIM McCORMACK, J., CONCUR
