[Cite as State v. Edwards, 2011-Ohio-3472.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95976
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MALEIK EDWARDS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-473528
BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 14, 2011
ATTORNEY FOR APPELLANT
Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Maleik Edwards, brings the instant appeal
challenging the procedures used during his 2010 de novo resentencing
hearing. After a thorough review of the record and law, we affirm.
{¶ 2} Appellant was arrested and charged with counts stemming from
the assault of a female on March 2, 2006. He pled guilty to one count of
felonious assault, a second degree felony, and one count of domestic violence,
a first degree misdemeanor. He was sentenced on April 13, 2006 to an
aggregate prison term of five years and informed of a mandatory five-year
period of postrelease control. However, the appropriate mandatory period of
postrelease control for the second degree felony conviction in this case is three
years. R.C. 2967.28(B)(2).
{¶ 3} The state sought to have appellant resentenced at a de novo
sentencing hearing to properly impose postrelease control. The trial court
held a hearing on October 7, 2010, 15 days prior to appellant’s stated release
date from prison. Appellant was given an opportunity to meet in private
with his attorney using the video conferencing equipment set up in the
courtroom. Appellant specifically waived his physical presence in the
courtroom at the outset of the resentencing hearing. When asked if he would
like to address the court prior to the announcement of the sentence, appellant
stated, “I’m perfectly fine with what I was told by the attorney so I have
nothing really to say.” The trial court then imposed appellant’s original
sentence with the exception of properly imposing a three-year term of
postrelease control.
{¶ 4} Appellant then filed the instant appeal raising a single
assignment of error.
Law and Analysis
Right to Counsel
{¶ 5} Appellant claims on appeal that “[t]he trial court erred by
conducting a de novo sentencing hearing by video conference for the purpose
of imposing postrelease control in violation of Article I, Section 10 of the Ohio
Constitution and Criminal Rule 43.”
{¶ 6} Appellant appropriately points out that Article I, Section 10 of the
Ohio Constitution requires that a criminal defendant “[i]n any trial, in any
court, * * * be allowed to appear and defend in person and with counsel[.]”
Appellant also correctly reads this provision together with Crim.R. 43(A)(1),
which states that “the defendant must be physically present at every stage of
the criminal proceeding and trial, including the impaneling of the jury, the
return of the verdict, and the imposition of sentence, except as otherwise
provided by these rules[,]” to conclude that appellant must be given the
opportunity to appear at the resentencing hearing with counsel. However,
Crim.R. 43(A)(2) goes on to provide for appearance via video conference. It
states, “[n]otwithstanding the provisions of division (A)(1) of this rule, in * * *
felony cases where a waiver has been obtained in accordance with division
(A)(3) of this rule [a waiver in writing or on the record], the court may permit
the presence and participation of a defendant by remote contemporaneous
video for any proceeding if all of the following apply:
{¶ 7} “(a) The court gives appropriate notice to all the parties;
{¶ 8} “(b) The video arrangements allow the defendant to hear and see
the proceeding;
{¶ 9} “(c) The video arrangements allow the defendant to speak, and to
be seen and heard by the court and all parties;
{¶ 10} “(d) The court makes provision to allow for private
communication between the defendant and counsel. The court shall inform
the defendant on the record how to, at any time, communicate privately with
counsel. Counsel shall be afforded the opportunity to speak to defendant
privately and in person. Counsel shall be permitted to appear with
defendant at the remote location if requested.”
{¶ 11} Appellant failed to raise any objection to his appearance via video
conference during the proceedings below or to the validity of his waiver of
personal appearance. Therefore, he has waived all but plain error. State v.
Reed, Franklin App. No. 09AP-1164, 2010-Ohio-5819, ¶13.
{¶ 12} To constitute plain error, the error must be obvious on the record,
palpable, and fundamental, so that it should have been apparent to the trial
court without objection. See State v. Tichon (1995), 102 Ohio App.3d 758,
767, 658 N.E.2d 16. Moreover, plain error does not exist unless the
appellant establishes that the outcome of the trial clearly would have been
different but for the trial court’s allegedly improper actions. State v.
Waddell, 75 Ohio St.3d 163, 166, 1996-Ohio-100, 661 N.E.2d 1043. Notice of
plain error is to be taken with utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice. State v.
Phillips, 74 Ohio St.3d 72, 83, 1995-Ohio-171, 656 N.E.2d 643.
{¶ 13} In the present case, appellant was given the opportunity to speak
privately with counsel prior to the start of the hearing. Appellant complains
that this consultation was not private because it took place in the courtroom,
where anyone could walk in at any time. However, there is no evidence that
traffic through the courtroom compromised appellant’s ability to consult with
his attorney. The record indicates that appellant was satisfied with the
information relayed by his attorney. This also indicates that appellant was
given the opportunity to speak with counsel, and appellant had no objection
to the privacy afforded.
{¶ 14} Although the record is devoid of any explanation by the trial court
informing appellant that he could speak privately with counsel at any time,
this lapse must still be analyzed through the rubric of harmless error. See
State v. McCollins, Cuyahoga App. No. 95486, 2011-Ohio-2398, ¶7, citing
State v. Williams (1983), 6 Ohio St.3d 281, 452 N.E.2d 1323 (“the defendant’s
absence in violation of Crim.R. 43(A), although improper, can constitute
harmless error where he suffers no prejudice.”).
{¶ 15} Appellant argues that he was prejudiced by the waiver of his
right to appear in person because the state could not have procured his
presence to resentence him before he finished serving his prison term.
Appellant provides no evidence that the state could not have secured his
presence within 15 days. Further, appellant was afforded the opportunity to
speak with his attorney in private and indicated he was satisfied with that
opportunity. He received the same sentence, with the addition of a shorter
but required period of postrelease control. Appellant has failed to show any
prejudice that resulted from his waiver of appearance in person at his
resentencing hearing.
{¶ 16} Appellant’s rights were adequately protected by counsel at the
resentencing hearing, and appellant never requested that counsel appear
with him at the institution where he was incarcerated. The error raised by
appellant involving a lack of notice of his ability to consult with counsel at
any time was harmless error. Therefore, appellant’s assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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. 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.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR