[Cite as State v. Hunt, 2019-Ohio-1982.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                          No. 105769
                 v.                              :

JEIMIL HUNT,                                     :

                 Defendant-Appellant.            :


                         JOURNAL ENTRY AND OPINION EN BANC

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 23, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
           Case Nos. CR-91-273936-C; CR-93-300402-D; CR 94-305667-D;
                                  CR-94-307512-B


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel T. Van, Assistant Prosecuting
                 Attorney, for appellee.

                 Norman & Tayeh, L.L.C., and William Norman, for
                 appellant.


SEAN C. GALLAGHER, J.:

                   Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland

State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court

determined that a conflict exists between the original panel majority decision in
State v. Hunt, 8th Dist. Cuyahoga No. 105769, 2018-Ohio-4849, and State v. Kelley,

8th Dist. Cuyahoga No. 87324, 2006-Ohio-5432, on the question of whether the

Ohio Supreme Court’s decision in State v. Green, 81 Ohio St.3d 100, 105, 1998-Ohio-

454, 689 N.E.2d 556, can be applied retroactively. The panel decision in this case

found State v. Burrage, 8th Dist. Cuyahoga No. 63824, 1993 Ohio App. LEXIS 4849

(Oct. 7, 1993), to be controlling. According to Green, when a defendant pleads guilty

to aggravated murder in a capital case, a three-judge panel is required to examine

witnesses and to hear any other evidence properly presented by the prosecution in

order to make a Crim.R. 11 determination as to the guilt of the defendant under R.C.

2945.06. Id. at syllabus. Burrage concluded that R.C. 2945.06 conflicted with

Crim.R. 11, and therefore, the statutory section was not effective. We vacate the

decision in Hunt released December 6, 2018. We continue to adhere to the law set

forth in Kelley — Green applies to Jeimil Hunt’s guilty plea despite Hunt’s plea

occurring earlier in time. Green at 103 (noting that Burrage was inconsistent with

the Ohio Supreme Court’s holding in State v. Post, 32 Ohio St.3d 380, 392, 513

N.E.2d 754 (1987), that a three-judge panel must hear testimony in order to

determine whether the accused is guilty of aggravated murder under R.C. 2945.06).

               In addition, the parties asked us to resolve the following question en

banc: When a criminal defendant alleges a violation of Crim.R. 11, the transcript of

the plea hearing is unavailable, and the trial judge lacks a specific recollection of the

plea, under what circumstances can our court presume regularity in the plea

proceedings? In State v. Jones, 71 Ohio St.3d 293, 643 N.E.2d 547 (1994), this
question was answered. The appellant, in Jones, was granted leave to file a delayed

appeal of his convictions following a jury trial; however, the transcript of the trial

had been destroyed. The defendant and the prosecuting attorney offered competing

App.R. 9(C) statements, and the trial court concluded that it could not settle an

App.R. 9(C) statement because of the lack of an independent recollection of the

proceedings. In that situation, the Ohio Supreme Court held that “[a] criminal

defendant must suffer the consequences of nonproduction of an appellate record

where such nonproduction is caused by his or her own actions.” Id. at 297. If the

defendant causes the nonproduction of the record, the appellate court may presume

regularity in the trial court proceedings. However, “an appellant is entitled to a new

trial where, after an evidentiary hearing, a record cannot be settled and it is

determined that the appellant is not at fault.” (Emphasis added.) Id. at 298.

              This same concept was applied four years earlier in State v. Frazier,

8th Dist. Cuyahoga No. 56484, 1990 Ohio App. LEXIS 1457 (Apr. 12, 1990) — in

considering a delayed appeal after the transcript of proceedings becomes

unavailable through time and as permitted under R.C. 2301.20, the defendant is

considered to be at fault for the lack of a record. Under R.C. 2301.20(B), the notes

and electronic records for a capital case are preserved for the longer of ten years or

until the final disposition of the action and exhaustion of all appeals. Frazier

implicitly held that the failure to timely file a notice of appeal under App.R. 4 is

considered the “exhaustion of all appeals.” Id. When considering that type of a
situation, an appellate court may presume regularity in resolving the merits of the

appeal. Hunt has not asked us to revisit Frazier.

               Instead, Hunt argues that the panel’s decision in this case conflicts

with State v. Costella, 8th Dist. Cuyahoga Nos. 61898, 61899, 61900, 61901, 1993

Ohio App. LEXIS 3388 (July 1, 1993); State v. Carlozzi, 8th Dist. Cuyahoga No.

59784, 1992 Ohio App. LEXIS 395 (Jan. 30, 1992); and State v. Polk, 8th Dist.

Cuyahoga No. 57511, 1991 Ohio App. LEXIS 900 (Mar. 7, 1991). Hunt is mistaken.

Although the panel decision in this case could be construed as conflicting with the

body of law that has developed, these cases are factually distinguishable and in

harmony with Frazier.

               In Costella, the trial court settled the record under App.R. 9 based on

the trial court’s independent recollection of the proceedings. Id. at 9 (noting that

the record was not silent for the purposes of the presumption of regularity doctrine

in light of the App.R. 9(C) statement issued by the trial court). Thus, the record was

complete for the purposes of resolving the merits of the delayed appeal and there

was no need to resort to the presumption of regularity. In Carlozzi and Polk, the

records of proceedings were destroyed by fire. In light of the accidental destruction

of the records, the defendants in Carlozzi and Polk were held blameless for the

nonproduction of the record in prosecuting their delayed appeals. In that situation,

according to Jones, the presumption of regularity could not be applied and a new

trial is warranted if the trial court is unable to settle the record. Thus, the cases Hunt

cited are inapplicable to his situation. In a delayed appeal, and one in which the
record is not kept beyond the period prescribed by R.C. 2301.20, the defendant is

considered to be “at fault” as contemplated under Jones for nonproduction of the

record. In such cases, the presumption of regularity applies. Frazier.

               With respect to the merits of this appeal, Hunt pleaded guilty to

attempted aggravated burglary, aggravated murder, and aggravated robbery in

1994. The trial court sentenced him to an aggregate term of life in prison, with the

possibility of parole after 48 years, in consideration of the sentences on the

aggravated robbery, aggravated murder, and a firearm specification being

consecutively imposed. Hunt did not timely appeal his convictions. Instead, in 2012

Hunt filed a motion to withdraw his plea in the aggravated robbery case, in which

Hunt noted that he had never filed a direct appeal in his cases. That motion was

denied, and Hunt again failed to perfect a timely appeal from the post-dispositive

motion.

               In May 2017, over 23 years after his final convictions were entered,

Hunt filed a motion for delayed appeal claiming that he was unaware of his right to

an appeal and his indigent status precluded him from pursuing an appeal in a more

timely fashion. The motion was granted. In hindsight, granting a delayed appeal

from a 23-year-old conviction may have been improvident. App.R. 5(A) is a

powerful exception to an appellate court’s jurisdictional barrier. “Once granted, a

delayed appeal proceeds as any timely appeal would proceed, and the assertion of

error is virtually the same as it would have been but for the delayed filing.” State v.

Silsby, 119 Ohio St.3d 370, 2008-Ohio-3834, 894 N.E.2d 667, ¶ 14. However, the
rule does not give an offender the indefinite right to appeal a conviction. Time is a

factor that must be considered. State v. Cathcart, 10th Dist. Franklin No. 17AP-505,

2017 Ohio App. LEXIS 3596, 2 (Aug. 22, 2017) (six-year delay in seeking a delayed

appeal was excessive and warranted denial of the motion for a delayed appeal). This

is especially concerning given the potential for the lack of a complete record under

R.C. 2301.20. Nevertheless, an offender is under no obligation to present potential

assigned errors in seeking a delayed appeal. App.R. 5, Staff Notes (the 1994

amendment of the rule deleted a requirement that the person seeking leave to file a

delayed appeal set forth the potential errors for review). Even without a transcript

of proceedings, defendants are entitled to present legal errors as assigned errors.

Hunt’s motion for a delayed appeal was granted, and we must resolve the appellate

arguments the same as if Hunt had timely appealed his convictions.

              In this appeal, Hunt asserted nine assignments of error that challenge

different aspects of the guilty plea process, the general crux of which centers on the

knowing, voluntary, or intelligent nature of Hunt’s guilty pleas or the trial court’s

adherence to the guilty plea process in capital cases as set forth in Green, 81 Ohio

St.3d 100, 1998-Ohio-454, 689 N.E.2d 556. The assigned errors would be easily

resolved upon reviewing the transcript of the proceedings. This review, however, is

hampered by the lack of a record from the 1994 convictions. The transcript of

proceedings was not indefinitely preserved, and as permitted under R.C.

2301.20(B), the transcripts are no longer available. One of the exhibits attached to

a motion filed with the trial court dealing with the App.R. 9(C) statement is a letter
from the Cuyahoga County Clerk of Courts confirming that the transcript from

Hunt’s plea hearing was no longer available because ten years had elapsed after his

final conviction.

               Hunt is considered to be “at fault” for the nonproduction of the

transcript necessary to the resolution of all of the assigned errors. Frazier is directly

on point. Frazier, 8th Dist. Cuyahoga No. 56484, 1990 Ohio App. LEXIS 1457, at 4

(Apr. 12, 1990). In that case, the offender filed a delayed appeal after the transcript

of proceedings was no longer kept under R.C. 2301.20. It was concluded that in the

absence of any demonstration from the available record that the trial court failed to

comply with Crim.R. 11(C), the presumption of regularity must be applied.

According to Frazier, it cannot be assumed that the court failed to do its duty under

those circumstances, especially because of the length of time between the final

conviction and the filing of a delayed appeal. Id. The failure to produce the

transcript was directly caused by the defendant’s failure to prosecute the appeal in a

more timely fashion. Id. In other words, the presumption of regularity applies in

instances in which the defendant files a delayed appeal after the record is no longer

available under R.C. 2301.20. Id.

               In light of Frazier and Jones, we must presume regularity in these

proceedings as it applies to Hunt’s claims regarding the plea process, including the

three-judge panel’s adherence to the requirements enumerated in Green.                In

attempting to adhere to the procedures of App.R. 9, the trial court tacitly indicated

the lack of an independent recollection of the proceedings necessary to settling the
record through App.R. 9. In other words, the trial court was unable to settle the

record given the age of the conviction. Our record is silent. Although Hunt filed a

document containing his recollections of the proceedings, such a document is

insufficient against the presumption of regularity that may be applied in light of

Hunt’s failure to timely prosecute this delayed appeal. Frazier. Hunt cannot profit

from self-serving statements that cannot be contested because of his dilatory

behavior. Because Hunt is responsible for the nonproduction of the factual record,

this appeal can only proceed on those issues for which a factual record is

unnecessary. Jones.

               Hunt’s claims that his plea was not knowingly, voluntarily, or

intelligently entered or that the trial court failed to comply with the dictates of

Green, all of which are dependent on the nonexistent transcript, are without merit.

We must presume regularity in the proceedings and that the three-judge panel

complied with Green and Crim.R. 11. Further, the final entry of conviction indicates

that Hunt was notified of his constitutional rights during the plea process and Hunt

has not demonstrated any other legal error from the available record of the

proceedings.

               Hunt’s convictions are affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for

execution of sentence.

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

of the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., PATRICIA ANN BLACKMON, MARY J. BOYLE,
FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, EILEEN T.
GALLAGHER, RAYMOND C. HEADEN, LARRY A. JONES, SR., KATHLEEN ANN
KEOUGH, ANITA LASTER MAYS, and MICHELLE J. SHEEHAN, JJ., CONCUR
