[Cite as State v. Weems, 2013-Ohio-2673.]


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

STATE OF OHIO                                      C.A. No.      26531

        Appellee

        v.                                         APPEAL FROM JUDGMENT
                                                   ENTERED IN THE
WILLIAM L. WEEMS                                   COURT OF COMMON PLEAS
                                                   COUNTY OF SUMMIT, OHIO
        Appellant                                  CASE No.   CR 12 01 0038 (B)

                                DECISION AND JOURNAL ENTRY

Dated: June 26, 2013



        MOORE, Presiding Judge.

        {¶1}    Defendant-Appellant, William Weems, appeals from the June 8, 2012 judgment

entry of the Summit County Court of Common Pleas. We must affirm.

                                              I.

        {¶2}    This matter stems from two robberies that occurred in January of 2012. Mr.

Weems and Rayonte Jones robbed an individual at gun point in the Akron General Medical

Center parking lot and used the victim’s credit card to make several purchases at Chapel Hill

Mall. Upon leaving the mall, Mr. Weems and Mr. Jones became involved in an altercation with

two other individuals and absconded with their packages.

        {¶3}    The next day, Mr. Jones was apprehended by the police when he tried to return

one of the stolen items to Wal-Mart. However, at that point in time, the police were unaware of

Mr. Weems’ identity. The record indicates that surveillance photographs were released on the

internet and Mr. Weems’ parents recognized their son in the photos. Mr. Weems’ parents
                                                  2


advised him to voluntarily surrender and take responsibility for his actions. Accompanied by his

attorney, Mr. Weems went to the Akron Police Detective Bureau, confessed to the crimes, and

agreed to truthfully testify against Mr. Jones.

       {¶4}    Mr. Weems was indicted on two counts of robbery, in violation of R.C.

2911.02(A)(2), felonies of the second degree, one count of aggravated robbery, in violation of

R.C. 2911.01(A)(1), a felony of the first degree, receiving stolen property, in violation of R.C.

2913.51(A), a felony of the fifth degree, misuse of credit cards, in violation of R.C.

2913.21(B)(2), a misdemeanor of the first degree, and a three-year firearm specification as to the

aggravated robbery, pursuant to R.C. 2941.145.

       {¶5}    Mr. Weems pleaded guilty to: (1) one count of robbery and (2) one count of

aggravated robbery, with a one-year firearm specification.       The State dismissed all of the

remaining charges listed in the indictment.

       {¶6}    The trial court sentenced Mr. Weems to a seven-year sentence for aggravated

robbery, to run consecutively with a one-year sentence for the firearm specification, to run

concurrently with a four-year sentence for robbery and his previous sentence imposed in Case

No. 10-10-2980, for a total of eight-years of imprisonment.

       {¶7}    Mr. Weems appealed, raising one assignment of error for our consideration.

                                                  II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT FAILED TO ADHERE TO ALL APPLICABLE RULES
       AND STATUTES AND ABUSED ITS DISCRETION IN IMPOSING THE
       TOTAL SENTENCE OF EIGHT YEARS IN THIS CASE.

       {¶8}    In his sole assignment of error, Mr. Weems argues that his sentence was arbitrary,

unreasonable, and unconscionable because: (1) it bears no rational relationship to his role in
                                                 3


assisting the State in obtaining a conviction against his co-defendant, (2) it fails to acknowledge

his lack of any prior sentence of imprisonment, his tender age, his self-surrender prior to

identification, and the fact that the weapon he carried was never brandished, and (3) it is greater

than Mr. Jones’ subsequent sentence on aggravated robbery even though, according to Mr.

Weems, Mr. Jones refused to accept responsibility for his actions, went to trial, and had

previously been to prison.

       {¶9}    Although Mr. Weems has sought review of his sentence on the ground that it is

unfair, there are two major impediments to the relief that he seeks. The first is the fact that,

according to his brief, Mr. Jones was tried, convicted and sentenced after Mr. Weems. That

means that the record before us on appeal in Mr. Weems’ case does not, and could not, contain

evidence of the sentence received by Mr. Jones. The only reference to Mr. Jones’ sentence is

found in the discussion in Mr. Weems’ appellate brief. As a result, this Court has nothing with

which to compare Mr. Weems’ sentence. The second impediment is that, although Mr. Weems

challenges the sentence imposed by the trial court, he has failed to include the presentence

investigation (“PSI”) report in the record on appeal.

       {¶10} Our Court has addressed this issue in the past. In State v. Zeffer, 9th Dist. Nos.

19893, 19963, 2000 WL 1825092 (Dec. 13, 2000), we faced a challenge to the severity of a

sentence imposed by the trial court. The record before us demonstrated that the court had

ordered a PSI report. However, the PSI report was not included in the record when the sentence

was appealed. We held that, where a presentence investigation report was requested by the trial

court, there exists a presumption that the court utilized it in imposing sentence. Because the

appellant failed to include it in the record, we could not properly review the court’s sentence, as

we did not have before us the information the trial court had before it when the sentence was
                                                 4


imposed. As a result, we presumed the validity of the sentence and affirmed the trial court’s

judgment. See generally Zeffer, quoting State v. Cox, 9th Dist. No. 19773, 2000 WL 372317, *2

(Apr. 12, 2000.)

       {¶11} Here, as in Zeffer and Cox, the trial court ordered a PSI report. Prior to

sentencing, the trial court inquired as to whether Mr. Weems’ attorney had the opportunity to

read the report, and if he had “[a]ny comments, modifications, [or] corrections[.]” Mr. Weems’

attorney responded that he had none.

       {¶12} R.C. 2951.03(A)(1) provides the contours of a PSI report.            The information

provided includes (1) an inquiry into the circumstances of the offense and the criminal record,

social history, and present condition of the defendant, (2) all information available regarding any

prior adjudications of the defendant as a delinquent child and regarding the dispositions made

relative to those adjudications, and (3) any other matter specified in Crim.R. 32.2. Additionally, a

PSI may include: (1) a physical and mental examination of the defendant, including a drug test,

and (2) a victim impact statement. See State v. Vitt, 9th Dist. No. 11CA0071-M, 2012-Ohio-

4438, ¶ 13.

       {¶13} Mr. Weems has argued that the fact that the trial court did not reference any

significant transgressions at sentencing suggests that no troubling factors existed in the PSI

report. To adopt that argument, however, would require us to ignore our precedent which holds

that the report must be included in the record for our review. It would also set a requirement that

the sentencing judge articulate each factor in the PSI report that he or she relied upon. We have

not done so in the past, and are disinclined to do so now. Rather, we must follow our well

established precedent as set forth above.
                                                 5


       {¶14} Further, “[a] reviewing court cannot add matter to the record before it, which was

not a part of the trial court’s proceedings, and then decide the appeal on the basis of the new

matter.” State v. Ross, 9th Dist. No. 12CA0007, 2013-Ohio-522, ¶ 6, quoting State v. Ishmail,

54 Ohio St.2d 402 (1978), paragraph one of the syllabus. As such, we cannot decide this appeal

on the basis of whether Mr. Jones received a lesser sentence than Mr. Weems, because evidence

of Mr. Jones’ sentence is not part of the trial court’s proceedings or the record on appeal. Mr.

Weems has not provided this Court with an adequate record, and because the record before us

does not, and could not, contain the co-defendant’s sentence, we cannot properly review the

sentence imposed by the trial court. As such, we must presume the validity of the trial court’s

sentencing in this matter.1

       {¶15} Notwithstanding the foregoing, the argument raised in Mr. Weems’ brief is not

insubstantial. It is for the benefit of the justice system that judges and prosecutors cooperate with

regard to recommended sentences for criminal defendants who accept personal responsibility and

cooperate with the State in the prosecution of other crimes. Both judges and prosecutors are in

the business of promoting justice. When a defendant has accepted responsibility for his own role

in criminal activity, and cooperated with the State in an effort to facilitate the prosecution of a

co-defendant, justice requires trial courts to respect the State’s recommendation for leniency lest

others become dissuaded from cooperating. The trial court’s willingness to respect a request for

leniency by the State can only serve to incentivize others to cooperate, thereby facilitating the

ends of justice. The implications of discouraging individuals from cooperating with police

investigations do not escape the attention of this Court and we would encourage sentencing



       1
         We note that nothing in this decision should be read to preclude post-conviction review
by this Court, where appropriate, of matters de hors the record.
                                                 6


judges to bear these interests in mind. While the criminal allegations against him are extremely

serious, guided by the counsel of his family and his attorney, Mr. Weems absolutely did the right

thing in surrendering to the authorities.

       {¶16} Having reviewed the trial court’s colloquy, it appears that the court took into

consideration Mr. Weems’ voluntary confession, and that he took responsibility for his crimes,

testified against Mr. Jones, and did not brandish a weapon.            Additionally, the trial court

acknowledged that Mr. Weems is twenty-years old, and that his attorney put him in the best

possible position he could be in for purposes of sentencing. The trial court also stated that, in

determining Mr. Weems’ sentence, it took into consideration the facts and circumstances of the

case, relevant sentencing factors, seriousness and recidivism factors, and all other relevant

material.

       {¶17} The trial court’s colloquy stated, in part, as follows:

       ***

       Your case has been with me for quite [some time]. I appreciated the fact that you
       took responsibility for this case when you [pled] * * * You had the courage to
       come in and testify in the case, and I know that was not an easy thing to do.

       One of the things that I’ve also considered in this case is how you were basically
       on a 36-hour free-for-all. You put someone’s life at risk by having a weapon on
       you. I do want to note, however, though, you did not pull it out on him.

       You have to understand that in this particular case, regarding the felony of the
       first degree, you face a period of incarceration of three up to [eleven] years; on the
       felony of the second degree, two to eight years, and the one-year firearm
       specification. So you’re looking at a prison term that you could be behind bars
       for a very long time.

       Your attorney has done a remarkable job for you. He has put you, I think, in the
       best position that you possibly can be in.

       And one thing, Mr. Weems, as I watched the video during the trial, watching you
       and Mr. Jones on video, and seeing that you’re 20 years old, I looked at that video
       and I thought to myself does he even understand the consequences of what he is
       doing right now.
                                                7


       But, Mr. Weems, there are consequences for your actions, for all of our actions,
       and with that, based on the facts and circumstances of this case, consideration of
       the relevant sentencing factors, and applying the minimum sanctions that I believe
       will * * * protect the public and punish you without imposing an unnecessary
       burden on the state or local resources, based on the seriousness and recidivism
       factors that I have reviewed in this case and all other relevant material, on Count
       One, the charge of aggravated robbery, I am imposing a sentence of seven years
       to the Ohio Department of Rehabilitation and Corrections.

       ***

       {¶18} Even if the impediments to our review referenced above could be overcome, we

would be hard pressed to find that the trial court abused its discretion in imposing Mr. Weems’

sentence. We again are guided by our precedent that “[w]hen applying the abuse of discretion

standard, an appellate court may not substitute its judgment for that of the trial court.” State v.

Davis, 9th Dist. No. 12CA010256, 2013-Ohio-846, ¶ 6, citing Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993). See also State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶

14,17 (wherein the Supreme Court of Ohio sets forth the two-step approach for reviewing felony

sentencing: (1) determine whether the trial court adhered to all applicable rules and statutes in

imposing the sentence, and (2) determine whether the trial court abused its discretion).

       {¶19} Therefore, based upon the limited record before us, we cannot say that the trial

court abused its discretion in sentencing Mr. Weems to eight years of imprisonment.

       {¶20} Accordingly, Mr. Weems’ assignment of error is overruled.

                                               III.

       {¶21} In overruling Mr. Weems’ sole assignment of error, the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                 8


       There were reasonable grounds for this appeal.

       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.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.


APPEARANCES:

PAUL F. ADAMSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
