[Cite as State v. Howard, 2012-Ohio-4747.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012-CA-10
vs. : T.C. CASE NO. 2003-CR-730
DAVID E. HOWARD, JR. : (CRIMINAL APPEAL FROM
COMMON PLEAS)
Defendant-Appellant :
.........
OPINION
Rendered on the 12th day of October, 2012.
.........
Stephen K. Haller, Prosecuting Attorney, Nathaniel R. Luken, Assistant Prosecuting
Attorney, Atty. Reg. No. 0087864, 61 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
Ben M. Swift, Atty. Reg. No. 0065745, 333 West First Street, Suite 445, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant David Howard, Jr. appeals from a December 15, 2011 re-sentencing
order that imposed a statutorily-mandated five year term of post-release control.
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{¶ 2} In 2004, Defendant pled guilty to aggravated robbery, R.C. 2911.01(A)(3), a
felony of the first degree, and felonious assault, R.C. 2903.11(A), a felony of the second
degree. The trial court sentenced Defendant to four years in prison for each conviction, with
those sentences to be served consecutively. Defendant did not file a direct appeal.
{¶ 3} On December 15, 2011, the trial court re-sentenced Defendant in order to
address the issue of post-release control, pursuant to the Ohio Supreme Court’s decision in
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. The parties agreed
that under current case law, Defendant’s convictions are allied offenses of similar import, and
the State elected to proceed on the aggravated robbery conviction. The trial court sentenced
Defendant to eight years in prison and advised Defendant of the statutorily-mandated five year
term of post-release control.
{¶ 4} Defendant appeals, raising one assignment of error.
“THE TRIAL COURT ERRED BY NOT PROPERLY SECURING THE PRESENCE OF
THE DEFENDANT-APPELLANT FOR HIS RE-SENTENCING HEARING, NOT
OBTAINING A VALID WAIVER FOR HIS NON-APPEARANCE, AND NOT
INFORMING DEFENDANT-APPELLANT OF HIS HEARING RIGHTS.”
{¶ 5} Defendant offers two arguments in support of his claim that the trial court
failed to comply with the requirements of Crim.R. 43 during his re-sentencing hearing.
Defendant maintains that the court failed to secure his waiver of his right to be physically
present for the re-sentencing hearing and that the court failed to provide a means for him to
speak privately with his attorney during those proceedings. For the following reasons, we
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conclude that any error with regard to the trial court’s failure to fully comply with Crim.R. 43
was harmless beyond a reasonable doubt.
{¶ 6} Revised Code Section 2929.191(A) permits a trial court to correct sentencing
orders when the court originally failed to advise a defendant of post-release control
requirements. Re-sentencing hearings under this section may be conducted via video
conference pursuant to R.C. 2929.191(C), as regulated by Crim.R. 43. Pursuant to Crim.R.
43(A)(1) a “defendant must be physically present at every stage of the criminal proceeding
and trial, including * * * the imposition of sentence.” However, proceedings may be held
with the defendant appearing by video if a waiver is obtained either in writing or on the
record. Crim.R. 43(A)(2) and (3).
{¶ 7} The record supports Defendant’s contention that he was not physically present
in the courtroom for his re-sentencing hearing and that he attended the hearing via video
conference. There is no evidence that Defendant waived his right to be physically present for
the hearing. However, neither Defendant nor his counsel objected to the video conference.
When a defendant fails to object to a video conference appearance, he waives all but plain
error. State v. Morton, 10th Dist. No. 10AP-562, 2011-Ohio-1488; State v. Steimle, 8th Dist.
No. 95076, 2011-Ohio-1071.
{¶ 8} An appellate court has the discretion to notice plain error under Crim.R. 52(B)
“with the utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of
syllabus (1978). Plain error does not exist unless, but for the error, the outcome of the
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proceedings would have been different. State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d
894 (1990). We find no plain error here.
{¶ 9} The trial court had no discretion to exercise with respect to the imposition of
post-release control upon Defendant because, for a first-degree felony, R.C. 2967.28(B)(1)
requires the imposition of a five-year term of post-release control. Therefore, Defendant can
show no prejudice due to the lack of his physical presence at the re-sentencing hearing, and
the error was harmless.
{¶ 10} Crim. R. 43(A)(2) requires the court, when a sentence is imposed via video
conference, to make “provision to allow for private communication between the defendant
and counsel,” and to “inform the defendant on the record how to, at any time, communicate
privately with counsel.” Defendant argues that the trial court failed to comply with Crim.R.
43(A)(2)(d) by failing to establish on the record that there were provisions in place to enable
him to speak privately with his attorney at the re-sentencing hearing.
{¶ 11} The trial court erred when it failed to take the steps necessary to satisfy Crim.
R. 43(A)(2)(d). However, because the court lacked discretion to impose any term of
post-release control except the five year term it imposed, the error was non-prejudicial and
was likewise harmless.
{¶ 12} Defendant’s assignment of error is overruled. The judgment of the trial court
will be affirmed.
Fain, J., and Donovan, J., concur.
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Copies mailed to:
Nathaniel R. Luken, Esq.
Ben M. Swift, Esq.
Hon. Stephen Wolaver