Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Common Pleas Court Case No.
APPELLANT Joseph Atwater, pro se.
ATTORNEYS FOR APPELLEE Sherri Bevan Walsh Summit County
Prosecutor By: Heaven DiMartino Assistant County Prosecutor
Summit County Safety Building, Michael C. O'Malley
Cuyahoga County Prosecutor By: Diane Smilanick Assistant
BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and E.T.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
Defendant-appellant, Joseph Atwater ("Atwater"),
appeals the trial court's denial of his motion to vacate
a void entry, where he argued that the trial court's
sentence is contrary to law due to the failure to comply with
statutory mandates during sentencing. After a review of the
record, we affirm.
Pursuant to a negotiated plea agreement, Atwater pleaded
guilty to voluntary manslaughter (R.C. 2903.03) with a
three-year firearm specification and attempted murder under
R.C. 2903.01, both felonies of the first degree. Atwater was
sentenced to a total of 20 years. Atwater's current
challenge is that the trial court failed to articulate its
findings and reasons for imposition of maximum and
consecutive sentences, resulting in a void sentence.
The Ohio Supreme Court recently clarified the current
standard for appellate review of felony sentences:
Applying the plain language of R.C. 2953.08(G)(2), we hold
that an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the
trial court's findings under relevant statutes or that
the sentence is otherwise contrary to law. In other words, an
appellate court need not apply the test set out by the
plurality in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, ¶ 1.
We first note that Atwater has not filed a transcript of the
proceedings in this case. "[A]bsent a transcript of the
proceedings or alternative record, we must presume
regularity." State v. Williams, 8th Dist.
Cuyahoga No. 96323, 2011-Ohio-3267, ¶ 9, citing
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,
199, 400 N.E.2d 384 (1980).
R.C. 2953.08(D) governs Atwater's claim. It provides that
a sentence is not subject to review where it is: (1)
authorized by law, (2) jointly recommended by the prosecution
and defendant; and (3) imposed by a sentencing judge.
According to the trial court's entry, Atwater pleaded to
an agreed sentence of 20 years. "'Once a defendant
stipulates that a particular sentence is justified, the
sentencing judge need not independently justify the
sentence.'" State v. Hammond, 8th Dist.
Cuyahoga No. 86192, 2006-Ohio-1570, ¶ 6, citing
State v. Porterfield, 106 Ohio St.3d 5,
2005-Ohio-3095, 829 N.E.2d 690, syllabus; State v.
Sherman, 8th Dist. Cuyahoga No. 84301, 2004-Ohio-6636,