holding that "[a]ttaching a photocopy of a transcript to a brief does not fulfill the appellant's obligation to furnish the transcript as part of the record on appeal or comply with the requirements of App.R. 9"Summary of this case from State v. Bumu
Nos. 77-577 and 77-578
Decided June 21, 1978.
Criminal law — Appeal — Transcript of proceedings — Cannot be added to record.
1. A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.
2. Where a trial court, in denying a petition for post-conviction relief pursuant to R.C. 2953.21, does not consider a transcript of proceedings of the hearing at which the guilty pleas were entered, a Court of Appeals cannot add that transcript to the record before it and then decide the appeal on the basis of matter disclosed by the transcript.
APPEALS from the Court of Appeals for Hamilton County.
On January 28, 1975, Mohammed Ishmail, Jr., and Dudley Donald, co-defendants, entered pleas of guilty to the crimes of burglary and grand theft. Each was sentenced to the Ohio Penitentiary on both counts, the sentences to be served concurrently.
Subsequent to their confinement, defendants petitioned for post-conviction relief, pursuant to R.C. 2953.21.
The trial court, after reviewing the dockets, records and journal entries in each case and without reading the transcript of proceedings of the hearing at which the guilty pleas were entered, denied defendants' petitions for post-conviction relief without a hearing. The court filed findings of fact and conclusions of law as required by R.C. 2953.21(C).
Defendants appealed to the Court of Appeals. The record in each case as transmitted by the trial court did not include a transcript of proceedings of the hearing at which the pleas were entered. Defendants requested leave of the Court of Appeals to supplement the record before the court by adding that transcript. The court, over objection, granted defendants' requests.
The Court of Appeals reversed the judgments of the trial court and set aside the pleas of guilty.
These causes are now before this court pursuant to the allowance of the state's motions for leave to appeal.
The causes have been consolidated herein for purposes of review as they involve the same question of law.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Leonard Kirschner, for appellant in Cases Nos. 77-577 and 77-578.
Mr. Max A. Levin, for appellees in Cases Nos. 77-577 and 77-578.
The threshold issue in each case is whether a reviewing court can add matter to the record before it, which was not part of the trial court proceedings, and then decide the appeal on the basis of the new matter.
In the causes sub judice, the trial court did not consider the transcript of proceedings of the hearing at which the guilty pleas were entered in denying defendants-appellees' petitions for post-conviction relief. The Court of Appeals granted leave for the record to be supplemented by the addition of that transcript. The Court of Appeals then reversed the judgments of the trial court and vacated the guilty pleas on the basis that the trial court failed to adhere scrupulously to Crim. R. 11(C)(2) in accepting the guilty pleas, a conclusion gleaned from the transcript of the plea proceedings. But see State v. Stewart (1977), 51 Ohio St.2d 86 .
We find no reported cases in Ohio deciding this precise question. However, there are several reported cases which are helpful in determining the issue.
In State, ex rel. Klorer, v. Fimple (1914), 91 Ohio St. 99, the relatrix in a mandamus action sought an order requiring the trial judge to allow and sign a bill of exceptions in a matter which had been referred to a referee and the referee had not returned a bill of exceptions to the trial judge. This court discussed the function of a bill of exceptions in such a case and the statutory duty, pursuant to G.C. 11484, of the referee to return such a bill of exceptions to the court. This court stated at pages 102-103:
"The function of a bill of exceptions is to bring upon the record matters material to further judicial inquiry which would not otherwise appear. The trial judge here naturally and properly answers that he has no personal knowledge respecting the proceedings before the referee. For information upon that subject he was confined to the referee's report. That report was before him as the sole basis of his action in overruling exceptions and in rendering judgment. It is equally available to the court of appeals. It is to be observed that in this case the report of the referee was confirmed and judgment rendered upon it and upon it alone. There could, therefore, have been no evidence whatever before the court of commom pleas that was not embraced in the report of the referee, already a part of the record." (Emphasis added.)
The Court of Appeals for Montgomery County in Bennett v. Dayton Mem. Park Cemetery Assn. (1950), 88 Ohio App. 98, relied upon Klorer in holding in paragraph one of its syllabus:
"In an appeal on questions of law the reviewing court may consider only that which was considered by the trial court and nothing more."
In the Bennett case, a bill of exceptions was not allowed and signed by a referee and returned with his report to the Court of Common Pleas, as required by law, and no bill of exceptions was before the Court of Common Pleas at the time of entry of judgment on the report of the referee, from which judgment an appeal was taken.
The Court of Appeals stated, at page 101, in its opinion:
"It is axiomatic that in an appeal on questions of law the reviewing court may consider only that which was considered by the trial court and nothing more. 2 Ohio Jurisprudence (App. Rev., Pt. I), 296, Section 150. Inasmuch as the trial court did not have before it the bill of exceptions and could not have considered its contents, this court may not consider it. A reviewing court may not consider the contents of a bill of exceptions filed by the referee when it appears that the bill was not returned to the trial court until after final judgment was rendered by the trial court on the report of the referee. The record in this case shows clearly the underlying reason for the statutory requirement that the referee return the bill of exceptions to the court with his report; otherwise the court, in rendering final judgment, may consider only the report of the referee, and, in that event, it necessarily follows that the reviewing court, in reviewing the final judgment, may consider only the report of the referee."
Since a reviewing court can only reverse the judgment of a trial court if it finds error in the proceedings of such court, it follows that a reviewing court should be limited to what transpired in the trial court as reflected by the record made of the proceedings.
The record in the instant causes indicates the trial court did not review the transcript of proceedings of the hearing at which the guilty pleas were entered prior to denying appellees' petitions for post-conviction relief. Therefore, that transcript was properly not involved in the record of the trial court proceedings transmitted to the Court of Appeals.
We conclude it was prejudicial error to the state of Ohio, appellant herein, for the Court of Appeals to add the transcript to the record before it and to render its decision based upon the contents of that transcript.
The judgments of the Court of Appeals are reversed and the causes are remanded to that court for further proceedings not inconsistant with this opinion.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, COLE and LOCHER, JJ., concur.
COLE, J., of The Third Appellate District, sitting for P. BROWN, J.
COOK, J., of The Eleventh Appellate District, sitting for SWEENEY, J.