COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60023 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ROBERT EDWARD DORLER, SR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 9, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-209801 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES ROBERT E. DORLER, SR. pro se Cuyahoga County Prosecutor A220342 8th Floor, Justice Center P. O. Box 788 1200 Ontario Street Mansfield, Ohio 44901 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Robert E. Dorler, Sr., defendant-appellant, hereinafter Appellant timely appeals his conviction for Aggravated Arson. Appellant assigns three errors that raise the following issues: whether the trial court abused its discretion and failed to sentence Appellant without unnecessary delay; whether the trial court violated Appellant's right to due process in sentencing and refusing to grant his motion to withdraw his guilty plea. For the reasons stated below, we affirm. Appellant was indicted on one count of Aggravated Arson in violation of R.C. 2909.02. On August 28, 1986, Appellant entered a plea of guilty to the indictment. On October 21, 1986, Appellant filed a motion to withdraw his guilty plea. On November 14, 1986, Appellant was transferred to federal custody and incarcerated in a United States Penitentiary. On July 30, 1987, Appellant filed a motion to dismiss on the grounds that the State of Ohio, plaintiff-appellee, hereinafter Appellee failed to honor their plea agreement; the trial court failed to address Appellant's motion to withdraw his guilty plea; the trial court failed to sentence Appellant prior to returning him to Federal custody. On the same day the trial court granted Appellee's petition for a Writ of Ad Audiendam Consideration Curiae to return Appellant for sentencing. On August 30, 1987, Appellant was returned to the trial court for sentencing. Appellant's motion to vacate his plea of guilty and motion to dismiss the indictment were denied. -3- Appellant was sentenced to 13 to 15 years imprisonment and assessed costs. His sentence was ordered to be served consecutively to his federal imprisonment. The transcript of August 30, 1987 is unavailable for review, because it was destroyed by fire in the Justice Center. Appellant's first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW AND ABUSED ITS DISCRETION TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT FAILED TO PRONOUNCE SENTENCE IN A TIMELY MANNER BY RETURNING THE DEFENDANT TO FEDERAL CUSTODY WITHOUT FIRST HAVING COMPLETED ITS CASE AND THEREBY DENIED HIM THE RIGHT TO A SPEEDY TRIAL. Crim. R. 32(A)(1) requires that a sentence be imposed "without unnecessary delay." Unnecessary delay occurs when there is a "lengthy delay between trial and sentencing where there appears to be no proper purpose for the delay." Neal v. Maxwell (1963), 175 Ohio St. 201. A trial court's determination of "without unnecessary delay" is a matter within the sound discretion of the trial court. E.g. State, ex rel. Corrigan v. Griffin (Apr. 27, 1989), Cuyahoga App. No. 57476, unreported. In the instant case, there was no evidence that the trial court abused its discretion in the delay in sentencing Appellant. During a period of over nine months, Appellant was unavailable for sentencing because he was in federal custody. The remaining period of time between October 21, 1986, and November 14, 1986, was not a lengthy period of time. See, Neal v. Maxwell. -4- Thus, Appellant's first assignment of error is not well taken. Appellant's second and third assignments of error state: THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT AND ABUSED ITS DISCRETION TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY FAILING TO ADHERE TO AND ENJOIN SPECIFIC PERFORMANCE OF THE NEGOTIATED PLEA AGREEMENT UNTO THE STATE, WHILE HOLDING THE DEFENDANT LIABLE, AND THEN SENTENCING HIM IRRESPECTIVE TO ITS TERMS, THEREBY DEPRIVING THE DEFENDANT OF HIS LIBERTY WITHOUT THE DUE PROCESS AND EQUAL PROTECTION OF THE LAWS. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT AND ABUSED ITS DISCRETION TO THE DEFENDANT-APPELLANT'S PREJUDICE BY DENYING APPELLANT'S MOTION TO WITHDRAW A PLEA OF GUILTY PRIOR TO SENTENCING AND THEREBY DEPRIVED APPELLANT OF HIS RIGHT TO A TRIAL BY JURY THROUGH DUE PROCESS OF THE LAWS. As Appellant has the burden of providing this court with the necessary transcript for review and, if a transcript is unavail- able, the Appellant has the obligation to provide or complete record pursuant to App. R. 9(C), (D), or (E). State v. Hendrix (June 13, 1991), Cuyahoga App. No. 58519, 58520, unreported. (Citations omitted.) Therefore, this court reviews the Appellant's assignments of error to the extent that it can, where the appellant has met his duty to produce the record. Where the appellant has not performed his duty to produce a 9(C) statement, those proceedings before the trial court must be presumed to be correct. Id. at 5, citing State v. Brown (1988), 38 Ohio St. 3d 305. In the instant case, whether the trial court violated Appellant's right to due process in sentencing him and denying his motion to withdraw his guilty plea requires a review of the sentencing hearing on August 30, 1987. Given the absence of this -5- transcript and no indication that Appellant has met his duty to produce a record under App. R. 9, the trial court must be presumed to be correct. Thus, Appellant's second and third assignments of error are not well taken. Judgment affirmed. -6- It is ordered that Appellee recover of Appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal 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. NAHRA, P.J., and KRUPANSKY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .