[Cite as State v. Lee, 2011-Ohio-4634.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95776
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
VIAMONTE LEE DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-460656
BEFORE: Rocco, J., Stewart, P.J., and Cooney, J. 2
RELEASED AND JOURNALIZED: September 15, 2011
-i-
ATTORNEY FOR APPELLANT
Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Anna M. Faraglia Mark J. Mahoney Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Viamonte Lee appeals from his resentencing
hearing held pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,
868 N.E.2d 961, as modified by State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus.
{¶ 2} Lee presents four assignments of error. He argues: 1) his “video
conference” resentencing hearing was improper because the trial court did not 3
obtain a knowing waiver of his right to be physically present; 2) his
resentencing hearing was improper because the trial court conducted it only
days prior to his release from prison; 3) his right to effective assistance of
counsel was compromised at the resentencing hearing because counsel had
been newly-appointed to his case; and, 4) the trial court should have vacated
his plea rather than resentencing him.
{¶ 3} Having reviewed the record with Lee’s arguments in mind, this
court finds merit to none of them. Consequently, his assignments of error
are overruled, and his sentence is affirmed.
{¶ 4} Lee originally was indicted in January 2005 on three counts,
charged with the forcible rape, gross sexual imposition upon, and kidnapping
of his teenaged niece. After a lengthy period of discovery, Lee eventually
entered into a plea agreement with the state.
{¶ 5} By the terms of the agreement, in exchange for the state’s
amendment of the indictment to the charges of attempted rape in Count 1
and a fourth-degree felony gross sexual imposition in Count 2, and the state’s
dismissal of Count 3, Lee would enter guilty pleas. The trial court informed
Lee during the colloquy that, upon release from any prison term, he would be
placed on postrelease control “for a period of up to 5 years.” 4
{¶ 6} The trial court accepted Lee’s guilty pleas to the two amended
counts. The court ultimately sentenced him in October 2005 to concurrent
prison terms of five years and seventeen months, respectively. However, at
both the sentencing hearing and in the journal entry, the trial court did not
specifically impose the mandatory five-year term of postrelease control.
{¶ 7} On August 27, 2010, the trial court called Lee’s case for a
resentencing hearing. The record reflects Lee was represented by counsel.
The court noted at the outset that Lee’s presence in court was “via video,” and
asked Lee if he waived his physical presence for the purpose of the hearing.
Lee answered, “Yes.”
{¶ 8} The trial court proceeded to conduct a full resentencing hearing.
After giving the prosecutor, defense counsel, and Lee the opportunity to
address the court, the court noted the offenses to which Lee pleaded guilty,
the sentences originally imposed, and reminded Lee about his duties with
respect to his classification as a sexually-oriented offender.
{¶ 9} The trial court then stated that, since Lee would be released from
prison by September 2, 2010, his sentence on Count 2 had expired, but the
five-year sentence for attempted rape remained appropriate. Along with this
sentence on Count 1, the trial court informed Lee he was subject to a
mandatory five-year term of postrelease control. 5
{¶ 10} Lee appeals from his resentencing and presents the following four
assignments of error for review.
{¶ 11} “I. Defendant was denied due process of law when the
court did not get a proper waiver of defendant’s right to appear in
person.
{¶ 12} “II. Defendant was denied due process of law when he
was resentenced six days before his release.
{¶ 13} “III. Defendant was denied the assistance of counsel for
reason of late appointment of counsel.
{¶ 14} “IV. Defendant was denied due process of law when his
plea was not vacated by reason of a proper advice concerning
mandatory post-release.”
{¶ 15} Lee argues in his first assignment of error that the trial court
violated Crim.R. 43 in obtaining his waiver of his right to be present in
person at the resentencing hearing. Lee apparently asserts that the trial
court was required to explain to him his Crim.R. 43 rights before conducting
the resentencing. The rule has no such requirement.
{¶ 16} Lee had the representation of counsel at the resentencing
hearing. This case thus presents a similar situation to that presented to this
court in State v. Steimle, Cuyahoga App. No. 95076, 2011-Ohio-1071. In 6
Steimle, this court observed that, when the court called the case for
resentencing, neither the defendant nor his attorney either objected to the
video conference or invoked Crim.R. 43; therefore, the issue had been waived
for appellate purposes.
{¶ 17} In any event, the record in this case demonstrates the trial court
complied with each of the requirements set forth in Crim.R. 43(A)(2), and Lee
voluntarily waived his right to be physically present. Lee’s first assignment
of error, accordingly, is overruled.
{¶ 18} In his second assignment of error, Lee argues it was “unjust” to
resentence him only days before his release from prison. The Ohio Supreme
Court, however, has endorsed the procedure utilized by the trial court in this
case. Fischer, paragraph two of the syllabus. See, also, State v. Simpkins,
117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at the syllabus, where
the court held that, in a case in which postrelease control is required but not
included in the sentence, “ * * * the state is entitled to a new sentencing
hearing to have postrelease control imposed on the defendant unless the
defendant has completed his sentence” on that count. (Emphasis added.) Cf.,
State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at
¶70; Bezak at ¶18. 7
{¶ 19} Since the trial court did not act outside its jurisdiction in
conducting Lee’s resentencing hearing, his second assignment of error also is
overruled. State v. Deskins, Lorain App. No. 10CA009875, 2011-Ohio-2605.
{¶ 20} Lee argues in his third assignment of error that he was deprived
of his right to effective assistance of counsel because counsel was appointed
for him solely for purposes of the resentencing hearing. In making this
argument, Lee presents assertions that are unsupported in the record.
{¶ 21} The record reflects Lee’s appointed counsel accomplished all of
the following at the resentencing hearing: he had developed an
attorney-client relationship with Lee, he had sufficient opportunity to confer
with Lee, he had advised Lee not to challenge his sexual offender
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[Cite as State v. Lee, 2011-Ohio-4634.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95776
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
VIAMONTE LEE DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-460656
BEFORE: Rocco, J., Stewart, P.J., and Cooney, J. 2
RELEASED AND JOURNALIZED: September 15, 2011
-i-
ATTORNEY FOR APPELLANT
Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Anna M. Faraglia Mark J. Mahoney Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Viamonte Lee appeals from his resentencing
hearing held pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,
868 N.E.2d 961, as modified by State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus.
{¶ 2} Lee presents four assignments of error. He argues: 1) his “video
conference” resentencing hearing was improper because the trial court did not 3
obtain a knowing waiver of his right to be physically present; 2) his
resentencing hearing was improper because the trial court conducted it only
days prior to his release from prison; 3) his right to effective assistance of
counsel was compromised at the resentencing hearing because counsel had
been newly-appointed to his case; and, 4) the trial court should have vacated
his plea rather than resentencing him.
{¶ 3} Having reviewed the record with Lee’s arguments in mind, this
court finds merit to none of them. Consequently, his assignments of error
are overruled, and his sentence is affirmed.
{¶ 4} Lee originally was indicted in January 2005 on three counts,
charged with the forcible rape, gross sexual imposition upon, and kidnapping
of his teenaged niece. After a lengthy period of discovery, Lee eventually
entered into a plea agreement with the state.
{¶ 5} By the terms of the agreement, in exchange for the state’s
amendment of the indictment to the charges of attempted rape in Count 1
and a fourth-degree felony gross sexual imposition in Count 2, and the state’s
dismissal of Count 3, Lee would enter guilty pleas. The trial court informed
Lee during the colloquy that, upon release from any prison term, he would be
placed on postrelease control “for a period of up to 5 years.” 4
{¶ 6} The trial court accepted Lee’s guilty pleas to the two amended
counts. The court ultimately sentenced him in October 2005 to concurrent
prison terms of five years and seventeen months, respectively. However, at
both the sentencing hearing and in the journal entry, the trial court did not
specifically impose the mandatory five-year term of postrelease control.
{¶ 7} On August 27, 2010, the trial court called Lee’s case for a
resentencing hearing. The record reflects Lee was represented by counsel.
The court noted at the outset that Lee’s presence in court was “via video,” and
asked Lee if he waived his physical presence for the purpose of the hearing.
Lee answered, “Yes.”
{¶ 8} The trial court proceeded to conduct a full resentencing hearing.
After giving the prosecutor, defense counsel, and Lee the opportunity to
address the court, the court noted the offenses to which Lee pleaded guilty,
the sentences originally imposed, and reminded Lee about his duties with
respect to his classification as a sexually-oriented offender.
{¶ 9} The trial court then stated that, since Lee would be released from
prison by September 2, 2010, his sentence on Count 2 had expired, but the
five-year sentence for attempted rape remained appropriate. Along with this
sentence on Count 1, the trial court informed Lee he was subject to a
mandatory five-year term of postrelease control. 5
{¶ 10} Lee appeals from his resentencing and presents the following four
assignments of error for review.
{¶ 11} “I. Defendant was denied due process of law when the
court did not get a proper waiver of defendant’s right to appear in
person.
{¶ 12} “II. Defendant was denied due process of law when he
was resentenced six days before his release.
{¶ 13} “III. Defendant was denied the assistance of counsel for
reason of late appointment of counsel.
{¶ 14} “IV. Defendant was denied due process of law when his
plea was not vacated by reason of a proper advice concerning
mandatory post-release.”
{¶ 15} Lee argues in his first assignment of error that the trial court
violated Crim.R. 43 in obtaining his waiver of his right to be present in
person at the resentencing hearing. Lee apparently asserts that the trial
court was required to explain to him his Crim.R. 43 rights before conducting
the resentencing. The rule has no such requirement.
{¶ 16} Lee had the representation of counsel at the resentencing
hearing. This case thus presents a similar situation to that presented to this
court in State v. Steimle, Cuyahoga App. No. 95076, 2011-Ohio-1071. In 6
Steimle, this court observed that, when the court called the case for
resentencing, neither the defendant nor his attorney either objected to the
video conference or invoked Crim.R. 43; therefore, the issue had been waived
for appellate purposes.
{¶ 17} In any event, the record in this case demonstrates the trial court
complied with each of the requirements set forth in Crim.R. 43(A)(2), and Lee
voluntarily waived his right to be physically present. Lee’s first assignment
of error, accordingly, is overruled.
{¶ 18} In his second assignment of error, Lee argues it was “unjust” to
resentence him only days before his release from prison. The Ohio Supreme
Court, however, has endorsed the procedure utilized by the trial court in this
case. Fischer, paragraph two of the syllabus. See, also, State v. Simpkins,
117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at the syllabus, where
the court held that, in a case in which postrelease control is required but not
included in the sentence, “ * * * the state is entitled to a new sentencing
hearing to have postrelease control imposed on the defendant unless the
defendant has completed his sentence” on that count. (Emphasis added.) Cf.,
State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at
¶70; Bezak at ¶18. 7
{¶ 19} Since the trial court did not act outside its jurisdiction in
conducting Lee’s resentencing hearing, his second assignment of error also is
overruled. State v. Deskins, Lorain App. No. 10CA009875, 2011-Ohio-2605.
{¶ 20} Lee argues in his third assignment of error that he was deprived
of his right to effective assistance of counsel because counsel was appointed
for him solely for purposes of the resentencing hearing. In making this
argument, Lee presents assertions that are unsupported in the record.
{¶ 21} The record reflects Lee’s appointed counsel accomplished all of
the following at the resentencing hearing: he had developed an
attorney-client relationship with Lee, he had sufficient opportunity to confer
with Lee, he had advised Lee not to challenge his sexual offender
classification, and he spoke eloquently on Lee’s behalf. On the record before
this court, Lee can demonstrate neither that counsel fell below an objective
standard of reasonable representation, nor that counsel’s performance
prejudiced him. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373;
State v. Samuels, Summit App. No. 25283, 2011-Ohio-2631.
{¶ 22} Consequently, his third assignment of error also is overruled.
{¶ 23} In his fourth assignment of error, Lee argues that the trial court
should have, sua sponte, vacated his guilty plea on Count 1 because it failed 8
to fully apprise him at the plea hearing that five years of postrelease control
was mandatory. This argument is outrageous.
{¶ 24} Lee never sought to withdraw his plea. Cf. State v. Hubbard,
Summit App. No. 25141, 2011-Ohio-2770. Had the trial court done as Lee
now suggests, he would be arguing that the trial court had abused its
discretion1 by sua sponte vacating his plea just days before his sentence had
been completed.
{¶ 25} In State v. Padgett, Cuyahoga App. No. 95065, 2011-Ohio-1927,
this court observed at ¶7 as follows:
{¶ 26} “ * * * Fischer clarified the holding in Bezak, explaining that
while a sentence that lacks proper postrelease control is void, ‘only the
offending portion of the sentence is subject to review and correction.’ Fischer
at ¶27. The court concluded, ‘although the doctrine of res judicata does not
preclude review of a void sentence, res judicata still applies to other aspects of
the merits of a conviction, including the determination of guilt and the lawful
elements of the ensuing sentence. The scope of an appeal from a
resentencing hearing in which a mandatory term of post release control is
1 This court remains skeptical that Lee actually desires to re-institute the original prosecution, and wonders if such an assignment of error should be raised without a showing that appellate counsel obtained the express written consent of the appellant to do so. 9
imposed is limited to issues arising at the resentencing hearing.’ Fischer at
¶40.”
{¶ 27} A challenge to the validity of a plea is an issue that should have
been raised on direct appeal. Hence, the doctrine of res judicata applies to
such a challenge and bars Lee from raising it in this appeal of his sentencing.
{¶ 28} Accordingly, Lee’s fourth assignment of error also is overruled.
{¶ 29} The trial court’s judgment is 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
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.
__________________________________ KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., CONCURS; and COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY