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State v. Atwater

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOSEPH ATWATER DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-01-409121-ZA

          FOR 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 County Prosecutor.

          BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} 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.

         {¶2} 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.[1] 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.

         {¶3} 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.

         {¶4} 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).

         {¶5} 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.

         {¶6} According to the trial court's entry, Atwater pleaded to an agreed sentence of 20 years.[2] "'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, ¶ 10.

         {¶7} ...


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