[Cite as State v. Sherrell, 2011-Ohio-1033.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2010 CA 00208
HOMER NORMAN SHERRELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2006 CR 00814(B)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 28, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO RICHARD DRAKE
PROSECUTING ATTORNEY 303 Courtyard Centre
RONALD MARK CALDWELL 116 Cleveland Avenue, NW
ASSISTANT PROSECUTOR Canton, Ohio 44702
Stark County, Case No. 2010 CA 00208 2
Wise, J.
{¶1} Appellant Homer Norman Sherrell, aka Kenneth Sherrell, appeals from his
felony resentencing in the Court of Common Pleas, Stark County. The relevant facts
leading to this appeal are as follows.
{¶2} On June 20, 2006, the Stark County Grand Jury indicted appellant on one
count of robbery, R.C. 2911.02(A)(2). Appellant ultimately entered a plea of guilty, and
was sentenced on July 13, 2006 to four years in prison. The trial court also notified
appellant of mandatory post-release control “up to a maximum of three (3) years.”
Appellant did not appeal therefrom.
{¶3} In 2007 and 2008, appellant filed motions for judicial release, both of
which were overruled by the trial court.
{¶4} On March 8, 2010, the trial court sua sponte ordered a resentencing
hearing. On April 12, 2010, appellant appeared for resentencing via a video link. The
trial court corrected the PRC notification at that time to “a mandatory period of three (3)
years of post-release control, pursuant to R.C. 2967.28(B).”
{¶5} On September 2, 2010, this Court granted leave for appellant to file a
delayed appeal. He herein raises the following sole Assignment of Error:
{¶6} “I. THE TRIAL COURT VIOLATED THE APPELLANT’S RIGHT TO BE
PRESENT IN COURT AT HIS SENTENCING HEARING.”
I.
{¶7} In his sole Assignment of Error, appellant contends the trial court's
procedure to impose corrected PRC requirements was violative of his right to be
present at his sentencing hearing. We disagree.
Stark County, Case No. 2010 CA 00208 3
{¶8} R.C. 2929.191 sets forth the mechanism for correcting a sentence that
fails to properly impose post-release control. Said provision applies prospectively to
sentences entered on or after July 11, 2006. State v. Pearson, Montgomery App.No.
23974, 2011-Ohio-245, f.n. 3, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-
6434, ¶¶ 35-36. See, also, State v. Nesser, Licking App.No. 10CA61, 2011-Ohio-94, f.n.
1.
{¶9} In the case sub judice, appellant’s sentencing entry was filed on July 13,
2006; hence, we apply the requirements of R.C. 2929.191 as set forth in Singleton.
Subsection (C) of the statute reads in pertinent part as follows: “On and after the
effective date of this section, a court that wishes to prepare and issue a correction to a
judgment of conviction of a type described in division (A)(1) or (B)(1) of this section shall
not issue the correction until after the court has conducted a hearing in accordance with
this division. *** The offender has the right to be physically present at the hearing,
except that, upon the court's own motion or the motion of the offender or the
prosecuting attorney, the court may permit the offender to appear at the hearing by
video conferencing equipment if available and compatible. An appearance by video
conferencing equipment pursuant to this division has the same force and effect as if the
offender were physically present at the hearing. ***.”1
{¶10} Accordingly, we find no merit in appellant’s challenge to his PRC video
conference resentencing hearing. We additionally note that appellant, raising a
constitutional challenge for the first time on appeal, has recited Sec. 10, Article I of the
Ohio Constitution in support of his “right to be present” argument. However, we find his
1
See, also, Crim.R. 43(A)(2), which provides criteria for allowing proceedings via
remote contemporaneous video without a defendant’s physical presence.
Stark County, Case No. 2010 CA 00208 4
brief lacks development of this argument in accordance with App.R. 16(A)(7). The case
law cited by appellant, particularly State v. Marshall, Lucas App. No. L-00-1381, 2002-
Ohio-4826, is focused on the issue of disruptive courtroom behavior by a defendant
warranting exclusion from proceedings. We thus find no reversible error in appellant's
PRC resentencing under the circumstances presented.
{¶11} Appellant’s sole Assignment of Error is overruled.
{¶12} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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___________________________________
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JUDGES
JWW/d 0210
Stark County, Case No. 2010 CA 00208 5
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
HOMER NORMAN SHERRELL :
:
Defendant-Appellant : Case No. 2010 CA 00208
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES