[Cite as State v. Brown, 2015-Ohio-3912.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26320
:
v. : T.C. NO. 05CR2813
:
JEFFREY A. BROWN : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___25th__ day of ___September_____, 2015.
...........
ANDREW T. FRENCH, Atty, Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, Talbott Tower, Suite 1210, 131 N.
Ludlow Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Jeffrey A. Brown appeals the trial court’s imposition of
a five-year term of post-release control (PRC) at a resentencing hearing held on July 11,
2014. An amended judgment entry of conviction containing the correct PRC term was
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issued on July 15, 2014. On July 21, 2014, the trial court issued an “Order and Entry
Memorializing Correction of Verbal Post Release Control Advisement.” Brown filed a
timely notice of appeal with this Court on July 22, 2014.
{¶ 2} We set forth the history of the case in State v. Brown, 2d Dist. Montgomery
No. 25653, 2014-Ohio-2551 (hereinafter “Brown I”), and repeat it herein in pertinent part:
The underlying case began in August 2005 when a three-count
indictment was returned against Brown. Four months later, a grand jury
issued a new seven-count indictment regarding the same underlying facts,
and the original indictment was dismissed. However, while both
indictments were pending, Brown moved to dismiss all charges, alleging a
speedy-trial violation. In February 2006, the trial court overruled the
motion, and a jury trial commenced.
Ultimately, Brown was convicted of two felonious assaults,
aggravated burglary, possessing weapons while under a disability, and
three firearm specifications. After a separate sentencing hearing, the trial
court imposed an aggregate prison term of nineteen years. During the
hearing, the trial court expressly advised Brown that once he completed the
prison term he would be subject to supervision by the parole board under a
term of post-release control. The trial court did not orally state the duration
of his post-release control. In its final sentencing entry of March 9, 2006,
though, the trial court correctly stated that the duration of post-release
control would be five years.
Brown pursued a direct appeal. In State v. Brown, 2d Dist.
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Montgomery No. 21540, 2007-Ohio-2098, this court upheld the conviction
and sentence. Thereafter, Brown filed two post-judgment submissions with
the trial court over the ensuing four years: a petition for post-conviction relief
and a motion for reconsideration. In both submissions, he essentially
attempted to re-argue the merits of a speedy-trial issue that had been
resolved on direct appeal. As part of the motion to reconsider, he asserted
that the trial court's decision on his motion to dismiss could be reviewed
again because no proper final judgment had been rendered. In support, he
contended that the March 9, 2006 sentencing entry was not final because it
failed to recite the manner of conviction. In relation to each submission, this
court affirmed the trial court’s denial of relief. See State v. Brown, 2d Dist.
Montgomery No. 22645, 2009-Ohio-1274; State v. Brown, 2d Dist.
Montgomery No. 24906, 2012-Ohio-2793. In the latter opinion, we
specifically held that the trial court's speedy-trial determination was not
subject to further consideration because the March 9, 2006 sentencing entry
was a final appealable order.
On May 3, 2012, Brown filed a third post-judgment submission before
the trial court. Therein, he sought either vacation of the March 9, 2006
sentencing entry or correction of a clerical error in the entry. In support of
both prongs of the motion, he contended that, by failing to inform him of the
duration of post-release control at sentencing, the trial court did not satisfy
the “notice” requirements under R.C. 2929.19(B)(3). According to Brown,
this had the effect of rendering his entire sentence illegal; thus, the trial court
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was obligated either to declare the sentencing entry void or to correct the
“error” in the entry by deleting the five-year term of post-release control.
Id., ¶s 2-5.
{¶ 3} In Brown I, we found that the trial court erred by not orally informing Brown
at his original sentencing that he was subject to five years of PRC. Id. at ¶ 16. We further
found that “[c]ontrary to Brown’s argument below and on appeal, however, his entire
judgment entry of conviction and sentence is not void[;] *** only the post-release control
portion of his sentence is void.” Id. at ¶ 21. Accordingly, we found that Brown “was only
entitled to a limited re-sentencing to correct the imposition of [PRC],” and we remanded
the case to the trial court for that purpose. Id.
{¶ 4} Thereafter, on July 11, 2014, the trial court held a resentencing hearing in
order to correct Brown’s PRC term. Brown appeared at the hearing via video
conferencing from the London Correctional Institution. Brown objected to not being
physically present at the resentencing hearing, but the trial court overruled his objection.
The trial court then verbally advised him of his mandatory term of five years of PRC. As
previously mentioned, the trial court issued an amended termination entry on July 15,
2014. Shortly thereafter on July 21, 2014, the trial court issued an entry in which it noted
that Brown had been verbally advised of his five-year PRC term.
{¶ 5} It is from this judgment that Brown now appeals.
{¶ 6} Brown’s first assignment of error is as follows:
{¶ 7} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED APPELLANT’S REQUEST TO BE CONVEYED FOR THE RESENTENCING
HEARING AND WHEN IT OVERRULED APPELLANT’S OBJECTION TO THE
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HEARING PROCEEDING WITH APPELLANT PARTICIPATING VIA VIDEO
CONFERENCE.”
{¶ 8} In his first assignment, Brown contends that the trial court erred in
resentencing him via video conferencing and refusing to allow him to be physically
present at the hearing pursuant to Crim.R. 43.
{¶ 9} Brown is subject to the sentencing correction procedures set forth in R.C.
2929.191. These provisions establish a procedure to remedy a sentence that fails to
properly impose a term of postrelease control. The court must hold a hearing before
issuing a corrected sentencing entry. In pertinent part, R.C. 2929.191(C) provides as
follows:
Before a court holds a hearing pursuant to this division, the court
shall provide notice of the date, time, place, and purpose of the hearing to
the offender who is the subject of the hearing, the prosecuting attorney of
the county, and the department of rehabilitation and correction. 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. * * *
{¶ 10} A criminal defendant has a fundamental right to be present at all critical
stages of his criminal trial. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 100; Sixth and Fourteenth Amendments to the United States Constitution;
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Ohio Constitution, Article I, Section 10. “However, a criminal defendant’s absence does
not necessarily result in prejudicial or constitutional error.” State v. Davis, 116 Ohio St.3d
404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 90. The presence of a defendant is a condition of
due process to the extent that a fair and just hearing would be thwarted by his absence.
Id. at ¶ 90; Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674
(1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 2, 84 S.Ct. 1489, 12
L.Ed.2d 653 (1964), fn. 1. Therefore, a defendant’s absence in violation of Crim.R. 43(A)
can constitute harmless error where he suffered no prejudice, even though such absence
was improper. State v. Morton, 10th Dist. Franklin No. 10AP-562, 2011-Ohio-1488, ¶ 18;
State v. Morris, 10th Dist. Franklin No. 10AP-512, 2011-Ohio-5484, ¶ 15.
{¶ 11} In State v. Al-Mosawi, 2d Dist. Montgomery No. 24633, 2012-Ohio-3385,
we found that any error in regard to the defendant’s physical presence at the hearing was
clearly harmless. Id. at ¶ 19. Specifically, we noted that the defendant’s five-year term
of PRC ordered by the court was mandatory, and he spoke with his attorney privately
before the court went on the record to re-impose PRC. We also noted that the defendant
did not ask to speak with counsel again in response to anything that transpired at the
hearing. Furthermore, trial counsel addressed the court on the defendant’s behalf
regarding sentencing, and the defendant was also allowed to address the court.
Accordingly, we found that the defendant was not prejudiced by the trial court’s decision
to resentence him via video conferencing. See also State v. Jones, 2d Dist. Greene No.
2012 CA 8, 2012-Ohio-4446 (holding that the defendant was not denied his constitutional
rights, including the effective assistance of counsel, when he was resentenced to post-
release control via video conferencing).
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{¶ 12} In the instant case, we find that no prejudice resulted from the trial court’s
decision to conduct the resentencing hearing with Brown via video conferencing.
Brown’s PRC term of five years was mandatory. Brown’s attorney was in the courtroom
during the hearing, while Brown was present via video conferencing. Moreover, the
record establishes that both before and during the hearing, Brown was afforded the
opportunity to speak with his attorney privately. Specifically, during the hearing, Brown
requested permission to consult with his attorney privately. Thereafter, the trial court
took a recess, cleared the courtroom, and permitted Brown to speak with his attorney in
private. At no point did Brown give any indication that he was unable to hear or
understand the proceedings. Nothing in the record indicates that any additional
information could have been submitted on Brown’s behalf or that his physical presence
at the hearing would have affected the outcome of the hearing.
{¶ 13} Brown’s first assignment of error is overruled.
Supplemental Assignments of Error
{¶ 14} After filing his initial appellate brief with this Court, we granted Brown leave
to supplement his brief in an order issued on March 20, 2015. Brown subsequently filed
his supplemental brief on April 17, 2015, containing the following two additional
assignments of error.
{¶ 15} Brown’s first supplemental assignment of error is as follows:
{¶ 16} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS
TERMINATION ENTRY, FILED ON MARCH 9, 2006; SAID ENTRY VIOLATED BOTH
OHIO AND FEDERAL CRIMINAL RULE 43(A), AS THE FIVE-YEAR PERIOD OF POST-
RELEASE CONTROL REFLECTED IN THE ENTRY WAS NOT PRONOUNCED IN THE
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PRESENCE OF APPELLANT AT HIS ORIGINAL SENTENCING.”
{¶ 17} In his first supplemental assignment, Brown argues that his original
termination entry issued on March 9, 2006, was void and not a final appealable order
because the trial court failed to properly advise of the length of his mandatory PRC. As
previously stated, however, this very issue was addressed and resolved by this Court in
Brown I, wherein we found that “[c]ontrary to Brown’s argument below and on appeal,
however, his entire judgment entry of conviction and sentence is not void[;] *** only the
post-release control portion of his sentence is void.” Id. at ¶ 21.
{¶ 18} The principle of “[r]es judicata may be applied to bar further litigation of
issues that were raised previously or could have been raised previously in an appeal.”
State v. Houston, 73 Ohio St.3d 346, 347, 652 N.E.2d 1018 (1995), citing State v. Perry,
10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Since we have already determined that only
the PRC portion of Brown’s original termination entry was void in Brown I, his first
supplemental assignment of error is barred by res judicata, and therefore without merit.
{¶ 19} Brown’s first supplemental assignment of error is overruled.
{¶ 20} Brown’s second supplemental assignment of error is as follows:
{¶ 21} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
IMPOSED POST-RELEASE CONTROL WITHOUT CONDUCTING A DE NOVO
SENTENCING HEARING MANDATED BY DECISIONS OF THE OHIO SUPREME
COURT, AND THEREBY VIOLATING APPELLANT’S STATE AND FEDERAL RIGHTS
TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW.”
{¶ 22} In his second supplemental assignment, Brown reiterates his argument that
the trial court erred by limiting his resentencing hearing to the correction of the imposition
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of his mandatory PRC and failing to conduct a de novo sentencing hearing.
{¶ 23} However, Brown’s resentencing hearing was for the limited purpose of
correcting a defect in the imposition of post-release control. It is well established that
when a trial court errs in imposing a term of post-release control at sentencing, “that part
of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶ 26. “[O]nly the offending portion of the sentence is subject
to review and correction.” Id. at ¶ 27. Where post-release control has been improperly
imposed, res judicata applies to all other aspects of the conviction and sentence, including
the determination of guilt and the lawful elements of the sentence. Id. at ¶ 34. See also
State v. Wilson, 2d Dist. Montgomery Nos. 24461, 24496, 24501, 2012-Ohio-1660, ¶ 19.
The case upon which Brown relies, State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-
6434, 920 N.E.2d 958, was overruled by Fischer. Thus, no issues other than post-
release control were subject to review by the trial court at Brown’s resentencing hearing,
and the trial court correctly limited the resentencing to this aspect of disposition and was
not required to conduct a de novo hearing in all other respects.
{¶ 24} Brown’s second supplemental assignment of error is overruled.
{¶ 25} All of Brown’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Jeffrey T. Gramza
Hon. Mary L. Wiseman
State v. Brown
Combined Opinion