[Cite as State v. Leyh, 2019-Ohio-3640.]


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

STATE OF OHIO                                         C.A. No.       29298

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CLARENCE LEYH                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2018-03-1036

                                 DECISION AND JOURNAL ENTRY

Dated: September 11, 2019



        SCHAFER, Judge.

        {¶1}     Clarence Leyh appeals the sentence imposed by the Summit County Court of

Common Pleas. For the reasons that follow, this Court affirms.

                                                 I.

        {¶2}     Mr. Leyh pleaded guilty to an indictment charging him with two counts of gross

sexual imposition in violation of R.C. 2907.05(A)(5)(C)(1), felonies of the fourth degree; two

counts of gross sexual imposition in violation of R.C. 2907.05(A)(1)(C)(1), felonies of the fourth

degree; one count of sexual imposition in violation of R.C. 2907.06(A)(1)(C), a misdemeanor of

the third degree; and one count of sexual imposition in violation of R.C. 2907.06(A)(3)(C), a

misdemeanor of the third degree. The trial court ordered that a presentence investigation report

with a victim impact statement be prepared, and further ordered a psycho-sexual evaluation with

report to be prepared, and set the matter over for a sentencing hearing.
                                                 2


       {¶3}    Following the sentencing hearing, the trial court sentenced Mr. Leyh to one year

for each of the two counts of gross sexual imposition in violation of R.C. 2907.05(A)(5), one

year for each of the two counts of gross sexual imposition in violation of R.C. 2907.05(A)(1),

and sixty days of jail time for each of the two counts of sexual imposition. In the sentencing

entry, the trial court stated that it “performed an analysis concerning allied offenses in regard to

State v[.] Johnson and [found] that the charges to the [i]ndictment are not allied offenses of

similar import, and do not merge for purposes of sentencing herein.” The trial court further

noted that “[n]either the [S]tate nor defense counsel objected to the [c]ourt’s determination.”

The trial court ordered that the one-year sentences imposed in the first four counts be served

consecutively to each other, while the sixty-day sentences imposed in the fifth and sixth counts

be served concurrently to each other and concurrently to the first four counts, resulting in a total

of four years imprisonment. The trial court also adjudicated Mr. Leyh a Tier I sex offender and

imposed sexual offender registration requirements.

       {¶4}    Mr. Leyh appealed his sentence raising one assignment of error for our review.

                                                II.

                                      Assignment of Error

       The four counts of gross sexual imposition are allied offenses of similar
       import and should have merged for sentencing purposes.

       {¶5}    In his argument on appeal, Mr. Leyh contends that the trial court erred by failing

to conduct an inquiry of the facts to determine his animus as to each of the four counts of gross

sexual imposition. Mr. Leyh argues that, if the trial court had undertaken such an analysis, it

would have found that the charges were simply different theories presented by the State. Mr.

Leyh invites this Court to conduct an inquiry and determine that the four counts of gross sexual

imposition “should be viewed as allied offenses of similar import and sentenced accordingly.”
                                                 3


        {¶6}    Generally, this Court conducts a de novo review of a trial court’s decision

regarding merger of allied offenses. State v. Harris, 9th Dist. Medina No. 16C0054-M, 2017-

Ohio-8263 ¶ 25. However, we are unable to reach the merits of his argument because Mr. Leyh

did not provide a complete record for our review. “[T]he burden of ensuring that the record on

appeal is complete is placed on appellant.” State v. Keene, 9th Dist. Lorain No. 06CA008880,

2006–Ohio–6676, ¶ 22. Mr. Leyh failed to ensure that the transcript of the sentencing hearing be

prepared and made part of the record. Additionally, Mr. Leyh attached a purported copy of the

presentence investigation report to his brief. Upon motion of the State, this Court issued a

magistrate’s order striking the appended document. Consequently, the presentence investigation

report is also not in the record.

        {¶7}    “This Court has consistently held that, where the appellant has failed to provide a

complete record to facilitate appellate review, we are compelled to presume regularity in the

proceedings below and affirm the trial court’s judgment.” State v. Brooks, 9th Dist. Lorain No.

16CA010958, 2017-Ohio-5620, ¶ 6, quoting State v. Farnsworth, 9th Dist. Medina No.

15CA0038–M, 2016-Ohio-7919, ¶ 16. In light of the record before us, we must overrule Mr.

Leyh’s assignment of error.

                                                III.

        {¶8}    Mr. Leyh’s assignment of error is overruled.       The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 4


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

Pleas, County of Summit, 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.

       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.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

THOMAS J. MCGUIRE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
