State v. McAllister

[Cite as State v. McAllister, 

.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Craig R. Baldwin, J.
-vsCase No. 2017CA00087
JOHN MCALLISTER

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Alliance Municipal Court,
                                                 Case No. 2016-CRB-00507


JUDGMENT:                                        Affirmed

DATE OF JUDGMENT ENTRY:                          October 10, 2017

APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

CAITLYN R. SCHNEIDER                             JOHN MCALLISTER, PRO SE
JENNIFER ARNOLD                                  Stark County Jail
MATTHEW KUHN                                     4500 Atlantic Blvd. NE
Alliance Law Director’s Office                   Canton, Ohio 44705
470 E. Market St.
Alliance, Ohio 44601
Stark County, Case No. 2017CA00087                                                       2

Hoffman, P.J.



       {¶1}   Defendant-appellant John L. McAllister appeals the judgment entered by

the Alliance Municipal Court overruling his motion for medical furlough.         Plaintiff-

appellee is the State of Ohio.

                                 STATEMENT OF THE CASE1

       {¶2}   In May of 2016, Appellant was convicted following jury trial in the Alliance

Municipal Court of one count of theft by deception in violation of R.C. 2913.02(A)(3),

and one count of possessing criminal tools in violation of R.C. 2923.24(A). He was

sentenced to one hundred forty days in jail on the theft by deception count, and one

hundred eighty days on the possession of criminal tools count, to be served

consecutively.   He appealed to this Court, and his conviction and sentence were

affirmed. State v. McAllister, 5th Dist. Stark No. 2016CA00110, 

.

       {¶3}   On February 7, 2017, the trial court granted Appellant’s motion for medical

furlough. He was to be released on February 14, 2017, at 9:30 a.m., and was ordered

to report back to the jail at 1:30 p.m. the same day after an appointment with a dentist.

He failed to return to the jail, and a bench warrant was issued for his arrest. He was

arrested on the warrant on February 20, 2017. On March 10, 2017, the court sentenced

him to sixty days incarceration for contempt of court, to be served consecutively to the

time remaining on his sentence for the underlying criminal offenses.

       {¶4}   Appellant filed a motion to modify his sentence based on his medical

needs on March 27, 2017. The court held a hearing on the motion on April 12, 2017,


        1A statement of the facts underlying Appellant's convictions and sentences is
 not necessary for our resolution of this Appeal.
Stark County, Case No. 2017CA00087                                                        3


and overruled the motion that same day. Appellant filed a motion for medical and

mental health treatment on April 17, 2017. The court entered judgment denying the

motion the same day, recommending Appellant speak to the medical staff at the jail.

      {¶5}   Appellant filed another motion for medical furlough on May 1, 2017. The

court denied the request for furlough on May 4, 2017. It is from that entry Appellant

prosecutes this appeal.

      {¶6}   Although appellant does not specifically assign error to the judgment,

appellant argues the court erred in overruling his motion for medical furlough because

the physician at the jail suggested he seek furlough in order to see a doctor.

      {¶7}   Appellant did not file a praecipe with the court reporter for the transcript of

the April 12, 2017 hearing, and he has not provided this Court with a transcript of the

hearing. On his docketing statement, Appellant indicated no transcript was necessary.

According to Appellant’s brief, seventy-two pages of medical records were presented to

the court at this hearing on his motion to modify sentence based on his medical

condition. In the absence of this transcript at which evidence was presented concerning

Appellant’s medical needs, we cannot determine whether the trial court erred in

overruling his subsequent motion for medical furlough. When portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court's proceedings, and affirm. Knapp v.

Edwards Laboratories, 

, 

 (1980).
Stark County, Case No. 2017CA00087                                       4


      {¶8}   The judgment of the Alliance Municipal Court is affirmed.

By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur