[Cite as State v. Payton, 2018-Ohio-1376.]


                                  IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        SCIOTO COUNTY

STATE OF OHIO,                                       :      Case No. 17CA3793

        Plaintiff-Appellee,                          :

        v.                                           :      DECISION AND
                                                            JUDGMENT ENTRY
DANIEL G. PAYTON,                                    :

        Defendant-Appellant.                         :      RELEASED: 03/30/2018

                                             APPEARANCES:

Daniel G. Payton, Chillicothe, Ohio, pro se.

Mark E. Kuhn, Scioto County Prosecuting Attorney, Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.

Harsha, J.

        {¶1}     Daniel G. Payton agreed to plead guilty to aggravated murder and rape;

he received the jointly recommended sentence of a prison term of 20 years to life for

aggravated murder, to run consecutively to a nine-year prison term for rape, with these

sentences to run consecutively to a 30-year prison term he was serving for other rapes.

Over 11 years later he contested the legality of his sentence in a motion to correct

sentence, which the trial court denied. Payton contends the trial court erred because it

failed to conduct an evidentiary hearing and denied his motion.

        {¶2}     We reject Payton’s assignment of error because a sentence imposed for

aggravated murder is not subject to review under R.C. 2953.08(D)(3) and the sentence

imposed for rape was an agreed sentence, which is likewise not subject to review under

R.C.2953.08(D)(1); it was jointly recommended by the parties, authorized by law, and

imposed by the sentencing court. We overrule Payton’s assignment of error and affirm
Scioto App. No. 17CA3793                                                                    2


the judgment of the trial court, which properly denied the motion without conducting a

hearing.

                                               I. FACTS

       {¶3}   The Scioto County Grand Jury returned an indictment charging Daniel G.

Payton with aggravated murder and rape. Payton subsequently pleaded guilty to both

counts. In October 2005, the court entered a judgment convicting Payton upon his guilty

plea, after finding that his plea was voluntary, knowingly and intelligently made; the

court sentenced him to a prison term of 20 years to life for aggravated murder and nine

years for rape to run consecutively and to run consecutive to a 30-year prison term he

was serving for other rape crimes. Payton did not appeal from the sentencing entry.

       {¶4}   In 2016 Payton filed a “Verified Motion to Correct Sentence,” which

conceded that he was “not challenging his convictions nor his guilty plea.” Rather, he

contended that his sentence was “contrary to law” because it was not an “agreed

sentence.” He contended that it was “open sentencing” and the trial court “erred in

sentencing him to mandatory, more than the minimum, and consecutive terms” without

including “the required language to impose mandatory or consecutive terms” that he

argued were mandatory under R.C. 2929.13(F) and R.C. 2929.14(E)(4). He also

claimed that the trial court failed to notify him in its sentencing entry of his right to

appeal those parts of his sentence that were contrary to law. The trial court denied the

motion, noting that it had reviewed the record and found that Payton “specifically

acknowledged that if the Court accepted the guilty plea that the jointly recommended

sentence was what he received” and that the Court “sentenced exactly according to the

very recommendation [Payton] was jointly making.” The trial court also found that before
Scioto App. No. 17CA3793                                                                    3


accepting Payton’s guilty plea, it reviewed the terms of the agreement and explicitly

asked Payton if he understood the agreement and determined that he had entered into

the agreement knowingly, intelligently, and voluntarily. The court also found that

because the sentence was a jointly-recommended sentence, the court was not required

to make consecutive-sentence findings in order for the sentence to be authorized by law

and not appealable. In the alternative, the court noted that it did make the requisite

sentencing findings even though it did not need to do so.


                               II. ASSIGNMENT OF ERROR

       {¶5}    Payton assigns the following error for our review:

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       DENIED AND OVERRULED DEFENDANT-APPELLANT’S VERIFIED
       MOTION TO CORRECT SENTENCE, WITHOUT HOLDING A HEARING
       TO OBTAIN MITIGATING EVIDENCE AND FACTS OUTSIDE THE
       RECORD AND ON THE RECORD TO PROVIDE THE DEFENDANT-
       APPELLANT THE OPPORTUNITY TO SPEAK AND PRESENT SUCH
       WITHOUT THE INFLUENCE OF DRUGS AND AN ATTORNEY WHO
       COERCED HIM INTO PLEADING GUILTY.

                                 III. LAW AND ANALYSIS

       {¶6}    Payton asserts that the trial court erred by denying his motion to correct

his sentence, which contests the felony sentence for his aggravated murder and rape

convictions.

       {¶7}    As the trial court concluded, Payton cannot contest his sentences and

based upon the record, no evidentiary hearing was necessary to reach this conclusion.

Under R.C. 2953.08(D)(3), “a sentence imposed for aggravated murder or murder * * *

is not subject to review under this section.” Therefore, appellant’s sentence for

aggravated murder is not reviewable.
Scioto App. No. 17CA3793                                                                4


          {¶8}     Under R.C. 2953.08(D)(1), “[a] sentence imposed upon a defendant is not

subject to review under this section if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution in the case, and is imposed

by the sentencing judge.” Therefore, appellant’s rape sentence is not reviewable “ ‘if it

was (1) jointly recommended, (2) authorized by law, and (3) imposed by the sentencing

judge.’ ” State v. Payton, 4th Dist. Scioto No. 17CA3788, 2017-Ohio-7865, ¶ 7 quoting

State v. Coleman, 4th Dist. Highland No. 16CA11, 2017-Ohio-1067, ¶ 5.

          {¶9}     Payton’s sentence was jointly recommended by the parties and imposed

by the sentencing judge. The record contains the trial court’s unrebutted statement in

Payton’s 2004 sentencing entry that the sentence it imposed constituted “an agreed

sentence pursuant to [R.C.] 2953.08(D).” The record also contains the written plea

agreement signed by Payton and his counsel, which sets forth the jointly recommended

sentence, as well as a “waiver of rights” and “acknowledgement of penalties” both

bearing Payton’s signature. Although Payton claimed in his motion that it was not an

agreed sentence, the transcripts of his plea and sentencing hearings are not part of the

record on appeal.1 We thus presume the validity of the trial court’s statement in its

sentencing entry. See State v. Lamb, 4th Dist. Highland No. 14CA3, 2014-Ohio-2960, ¶

14, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384

(1980) ( “ ‘When portions of the transcript necessary for the resolution of assigned

errors are omitted from the record, the reviewing court has nothing to pass upon and

thus, as to those assignments of error, the court has no choice but to presume the

validity of the lower court’s proceedings, and affirm’ ”).



1   Payton did not include the plea and sentencing transcript in the record.
Scioto App. No. 17CA3793                                                                                5


        {¶10} Therefore, the remaining issue is whether Payton’s rape sentence was

“authorized by law.” “ ‘A sentence is “authorized by law” and is not appealable within

the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing

provisions.’ ” State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.2d 627, ¶

26, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,

paragraph two of the syllabus.

        {¶11} In his motion to correct sentence Payton raised three sentencing claims:

(1) the trial court did not make the findings required to impose mandatory prison terms

under R.C. 2929.13(F); (2) the trial court did not make the requisite findings to impose

consecutive sentences under R.C. 2929.14(C)(4) [former R.C. 2929.14(E)(4)]; and (3)

the trial court did not notify him of his right to appeal from the sentence under R.C.

2953.08(B).2

        {¶12} Our review of the record indicates that the trial court properly imposed a

prison term within the statutory range for his rape conviction because he violated R.C.

2907.02(A)(2), subject to a presumption in favor of prison under R.C. 2929.13(D). See

R.C. 2929.14(A)(1) (first degree felony sentencing ranges).

        {¶13} Moreover, the trial court made the requisite findings to impose consecutive

sentences for the rape convictions. See R.C. 2929.14(C)(4). Even if the court had not

made the required findings, the Supreme Court held in Sergent at ¶ 43, that “in the

context of a jointly recommended sentence that includes nonmandatory consecutive

sentences, a trial court is not required to make the consecutive-sentence findings set


2Payton also contended that he was entitled to a three-judge panel to determine his guilt and that he was
entitled to a sexual-predator classification hearing. However, because he waived right to trial by pleading
guilty and his sexual-predator classification was made in a preceding criminal case, these two arguments
are meritless.
Scioto App. No. 17CA3793                                                                      6


out in R.C. 2929.14(C)(4).” So “when a trial judge imposes such an agreed sentence

without making those findings, the sentence is nevertheless ‘authorized by law’ and not

reviewable on appeal pursuant to R.C. 2953.08(D)(1).”

           {¶14} Finally, the trial court did not violate R.C. 2953.08 by failing to notify

Payton in the sentencing entry that he could appeal his agreed sentence if he believed it

to be contrary to law. See State v. Berecz, 4th Dist. Washington No. 16CA15, 2017-

Ohio-266, ¶ 23 (“Although R.C. 2953.08 confers on a defendant the right to appeal from

the sentence, it contains no requirement that the court notify the defendant of that

right”).

           {¶15} Therefore, Payton’s motion to correct sentence was meritless.

Consequently, the trial court did not err by holding that his agreed sentence was not

reviewable and denying his motion to correct sentence.

           {¶16} Insofar as Payton attempts to raise various new claims contesting the trial

court’s sentencing entry on appeal, he forfeited them by failing to raise them in his

motion to correct sentence. See generally State v. Quarterman, 140 Ohio St.3d 464,

2014-Ohio-4034, 19 N.E.3d 900, ¶ 15 (2014) (It is a well-established rule that “ ‘an

appellate court will not consider any error which counsel for a party complaining of the

trial court's judgment could have called but did not call to the trial court's attention at a

time when such error could have been a waiver of such issue and a deviation from this

state's orderly procedure, and therefore need not be avoided or corrected by the trial

court.’ ”); State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986) (failure to raise an

issue at the trial court level, which issue is apparent at the time of the proceeding,
Scioto App. No. 17CA3793                                                                  7


constitutes a waiver of such issue and a deviation from this state's orderly procedure,

and therefore need not be heard for the first time on appeal).

       {¶17} We overrule Payton’s assignment of error and affirm the judgment of the

trial court denying his motion to correct sentence.

                                                                 JUDGMENT AFFIRMED.
Scioto App. No. 17CA3793                                                                    8



                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, P.J. & McFarland, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
