[Cite as State v. Weems, 2011-Ohio-3589.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95977
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRIAN WEEMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-474343
BEFORE: Stewart, P.J., Celebrezze, J., and Rocco, J.
RELEASED AND JOURNALIZED: July 21, 2011
ATTORNEY FOR APPELLANT
Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
The court conducted a de novo resentencing of defendant-appellant, Brian Weems,
by video conference just days before his scheduled release from prison for the purpose of
imposing a term of postrelease control. On appeal, Weems argues that his right to
counsel was violated because the video conferencing format employed by the court
prohibited him from meeting in private with his attorney, in violation of Crim.R.
43(A)(2)(d). Noting that a new sentencing hearing for the purposes of imposing
postrelease control is no longer possible given his release from prison, he asks that his
term of postrelease control be vacated.
Crim.R. 43(A)(1) ensures a defendant’s right to be physically present at every
stage of a criminal proceeding. Nevertheless, a defendant can waive the right to be
present in the courtroom and may participate in the proceedings “by remote
contemporaneous video” upon certain conditions. See Crim.R. 43(A)(2)(d). As
applicable here, these conditions include providing “private communication between the
defendant and counsel.” Id.
When the court convened for resentencing, Weems appeared by video link from
prison; defense counsel and the assistant prosecuting attorney were in the courtroom with
the judge. Weems expressed some initial concern over the appointment of defense
counsel and voiced a desire to be present in the courtroom. The court told Weems that it
would allow him to converse with defense counsel and decide whether he should waive
his right to be physically present for resentencing. It stated: “[w]e’ll all step out of the
room, you’ll have your privacy and [defense counsel] can answer any of the questions you
need.” Weems spoke off-the-record with defense counsel and then agreed to waive his
physical presence in the courtroom. The court resentenced Weems to the same prison
term that had been previously imposed along with a mandatory three-year term of
postrelease control.
Weems argues that despite waiving his right to be physically present in the
courtroom, the court failed to afford him an opportunity to speak in private with defense
counsel. He maintains that the video conferencing system is located in the courtroom
and that while the judge might have left the courtroom to allow a defendant and counsel
to speak, “this type of setting is not private” because of the large amount of foot-traffic in
a typical courtroom, including attorneys, deputies, and other court personnel who
typically move through the courtroom.
Weems may not challenge the video conference on appeal because he expressly
agreed to participate in that format. State v. Steimle, 8th Dist. No. 95076,
2011-Ohio-1071, ¶17. He acknowledges his waiver, but argues that plain error exists
with the failure to provide him complete privacy.
Nowhere in Weems’s argument is the claim that he actually lacked privacy in the
course of his conversation with defense counsel. The record does not show that anyone
else was actually present in the courtroom when Weems discussed waiving his physical
presence with defense counsel. Even if we were to credit Weems’s assertion that people
were moving in and out of the courtroom at the time he spoke with defense counsel, that
fact alone would not suggest that he lacked the necessary privacy to confer with counsel.
The Crim.R. 43(A) guarantee of “privacy” does not require a one-to-one conversation
with counsel, alone in a secured room. Private conversations frequently occur when
others are present but not listening, whether in the courtroom, the court hallways, or even
at the sidebar, because there might not be any other logistically possible alternatives. As
long as the contents of the conversation stay between a defendant and defense counsel,
the privacy guarantee contained in Crim.R. 43(A) is satisfied.
Judgment affirmed.
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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution. 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.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR