State v. Maldonado

2023 Ohio 522, 209 N.E.3d 213

• Court: Ohio Court of Appeals
• Decided: February 23, 2023
• Docket: 110655
• Status: Published

Opinion

[Cite as State v. Maldonado, 2023-Ohio-522.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110655 v. :

ELVIN MALDONADO, :

Defendant-Appellant. :

JOURNAL ENTRY AND DECISION EN BANC

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 23, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634404-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Glen Ramdhan, Assistant Prosecuting Attorney, for appellee.

Eric M. Levy, for appellant.

SEAN C. GALLAGHER, J.:

Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland

State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court sua

sponte determined that State v. Jarmon, 8th Dist. Cuyahoga No. 108248, 2020-

Ohio-101, conflicts with State v. Howard, 8th Dist. Cuyahoga No. 87490, 2006- Ohio-6412, ¶ 7, on a dispositive point of controlling authority. En banc review is

necessary to maintaining harmony in the law of this district. See, e.g., Midland

Funding L.L.C. v. Hottenroth, 2014-Ohio-5680, 26 N.E.3d 269, ¶ 1 (8th Dist.)

(resolving the conflict between two disparate lines of authority interpreting

procedural rules through an en banc proceeding).

Decision of the En Banc Court:

In this en banc proceeding, we must resolve a straightforward

question of law in order for the panel to resolve the merits of the underlying appeal:

Does a defendant have a right to be present at a hearing, or other proceeding, under

Crim.R. 43(A), when a case is remanded for resentencing to vacate and delete any

aspect of a sentence? We continue to adhere to the principle established in Howard.

I. Scope of the Conflict

It has long been held that “‘a defendant’s presence in court is not

required every time judicial action is taken to correct a sentence.’” United States v.

Clark, 816 F.3d 350, 355 (5th Cir.2016), quoting United States v. Erwin, 277 F.3d

727, 730 (5th Cir.2001). Crim.R. 43(A), or any other statutory or constitutional

provision for that matter, does not establish a right for a defendant to be present at

any proceeding upon remand that vacates, deletes, or otherwise modifies any

portion of a sentence, punishment, penalty, or other criminal sanction, without

imposing any additional burdens upon the defendant. Unless a sentencing

modification creates a more onerous sanction, there is no procedural, statutory, or constitutional right entitling the defendant to be present at any proceeding, much

less a formal hearing, resulting in that sentencing modification.

Even where the appellate mandate suggests or implies more than

amending a sentencing entry must be done by the trial court, such as when the

mandate includes a reference to the generic term “resentencing,” a de novo

resentencing of the entire case or particular count is not required, or even permitted

as a matter of law. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d

381, ¶ 15 (“[O]nly the sentences for the offenses that were affected by the appealed

error are reviewed de novo; the sentences for any offenses that were not affected by

the appealed error are not vacated and are not subject to review.” (Emphasis

added.)). No matter what language or generic phrasing is used in a remand order,

the appellate court cannot require or authorize a trial court to act in a manner that

is inconsistent with the law.

As a result, although a “remand for resentencing” generally

contemplates a de novo resentencing, that is required only if the trial court adds a

punishment or otherwise increases the burden of the sanction in the sentencing

entry. State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128

N.E.3d 222, ¶ 11; State v. Mitchell, 11th Dist. Portage No. 2019-P-0105, 2020-Ohio-

3417, ¶ 48. In other words, even in situations in which a sentencing hearing is

erroneously required by the appellate court in cases in which the remand is limited

to vacating or deleting punishments from an aggregate sentence, the relevant

question underlying this en banc proceeding is whether an offender maintains some procedural, statutory, or constitutional right to be present at that hearing or other

proceeding. By answering this question in both the affirmative and negative,

Howard and Jarmon conflict.

In Howard, the offender’s direct appeal resulted in the reversal of his

conviction for burglary, requiring the trial court to correct the sentencing entry upon

remand. Howard, 8th Dist. Cuyahoga No. 87490, 2006-Ohio-6412, at ¶ 2-3. The

remainder of the sentences imposed for other offenses, all of which were to be served

concurrent to each other and the vacated conviction, were maintained. Id.

According to Howard, in response to the defendant’s claim that Crim.R. 43(A)

afforded him a right to be present at any proceedings that occurred upon that

remand, no new sentencing hearing was required because no sentence was being

imposed. Id. at ¶ 6, 8. “Vacating the burglary sentence leaves appellant, practically

speaking, in the same situation as before - serving five years in prison. No ‘new’

sentence was imposed; rather, part of his sentence was taken away, and appellant

cites to no authority that affords him the right to be present for this.” (Emphasis

added.) Id. at ¶ 8. As a result, Howard stands for the proposition that although

Crim.R. 43(A) preserves a right for a defendant to be present at every stage of the

trial proceeding, the rule does not extend to situations in which proceedings are

conducted upon remand for the sole purpose of deleting one aspect of an aggregate

sentence. Id. at ¶ 6, 8.

The panel in Jarmon concluded otherwise. Upon a remand ordering

“the vacation of one of the five-year drive-by specifications” following a direct appeal, the trial court reissued a sentencing entry in part vacating and then deleting

the five-year sentence previously imposed for that specification pursuant to the

appellate mandate. Jarmon, 8th Dist. Cuyahoga No. 108248, 2020-Ohio-101, at

¶ 4-5. All other sentences were maintained as required, and no sentencing hearing

was conducted. Id. In an appeal from that proceeding, the defendant claimed a

right under Crim.R. 43(A) to be present at a sentencing hearing to remove the

reversed sanction. Id. at ¶ 8. The panel agreed based exclusively on Crim.R. 43(A),

concluding that under those circumstances “the [trial] court erred by failing to hold

a resentencing hearing at which Jarmon could have been present.” Id. at ¶ 9.

Although it was ultimately concluded that any error would be harmless, the panel,

relying on Crim.R. 43(A), nonetheless held that a defendant has the right to be

present at a hearing for the purposes of vacating and then deleting a portion of an

aggregate sentence reversed in the direct appeal. Id. This holding conflicts with

Howard at ¶ 6-8. We cannot adopt Jarmon as the law of this district.

II. Jarmon is Overruled

Howard’s legal conclusion is in line with the Ohio Supreme Court’s

more recent pronouncement. In Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128

N.E.3d 222, at ¶ 10-11, the Ohio Supreme Court concluded that Crim.R. 43(A) does

not provide a defendant the right to be present at a sentencing hearing when

portions of a final aggregate sentence are simply vacated or deleted upon remand

from a direct appeal. Id. As the Ohio Supreme Court concluded, “[t]he fact that [the

trial court] deleted a punishment distinguishes this case from [all] cases in which punishment was added; in the latter situation, trial courts must hold a de novo

resentencing hearing on the additional portion of the sentence.” (Emphasis added.)

Marsh at ¶ 10. The implication is that conducting a de novo hearing with the

defendant present is not required to delete, vacate, reduce, or otherwise maintain

an aggregate punishment under Crim.R. 43(A). Id. at ¶ 11. Although Marsh was

decided with respect to postrelease control sanctions, its conclusion was more

expansive; when a trial court deletes a “punishment,” Crim.R. 43(A) is not

implicated and, therefore, no resentencing hearing is required that would trigger the

defendant’s right to be present. Id. at ¶ 7, 11.

In State ex rel. Vigil v. Cuyahoga Cty. Common Pleas Court, 8th Dist.

Cuyahoga No. 109840, 2020-Ohio-4571, ¶ 9, 11 (“Vigil”), the panel recognized the

implications of Marsh. As this court has concluded, when a panel’s remand order

dictates “[c]ase remanded to the trial court for resentencing,” as the remand was

ordered expressly stated in State v. Vigil, 8th Dist. Cuyahoga No. 103940, 2016-

Ohio-7485, ¶ 47 (“Vigil I”), the trial court’s reissuance of a final entry of conviction

only deleting the vacated sentences “complied with the appellate court’s decision

and order” without triggering the defendant’s presence under Crim.R. 43(A). Vigil

at ¶ 11. It was, therefore, concluded that “[i]n cases where a penalty is removed, a

defendant’s presence is not required and no resentencing hearing is necessary.”

Accord Howard, 8th Dist. Cuyahoga No. 87490, 2006-Ohio-6412, at ¶ 8.

Howard and Vigil are not mere outliers but are based on or are

extensions of established precedent. State ex rel. Ellis v. Burnside, 8th Dist. Cuyahoga No. 103469, 2015-Ohio-5432 (defendant had no right to be conveyed to

the trial court for a resentencing hearing to vacate a sentence reversed upon the

direct appeal), citing State ex rel. Strothers v. Turner, 79 Ohio St.3d 272, 680 N.E.2d

1238 (1997); State v. Ellis, 8th Dist. Cuyahoga No. 101603, 2015-Ohio-1642, ¶ 12 (on

remand from a direct appeal in which a sentence is vacated, Crim.R. 43(A) is not

implicated and the defendant’s presence is not required to modify the final entry of

conviction to delete the reversed sentence); see also State v. McCullough, 6th Dist.

Huron No. H-21-008, 2022-Ohio-2178, ¶ 19 (vacating convictions reversed on the

direct appeal did not implicate Crim.R. 43 when the trial court reissued the

sentencing entry to delete the references to the overturned convictions leaving the

remaining convictions intact); State v. Marks, 7th Dist. Monroe No. 868, 2002-

Ohio-6267, ¶ 20-24 (Crim.R. 43(A) is implicated only if a sentence is modified by

adding a punishment); State v. Mitchell, 11th Dist. Portage No. 2019-P-0105, 2020-

Ohio-3417, ¶ 48 (concluding, based on Marsh, that “a trial court [is] only required

to hold a de novo resentencing hearing [(requiring the defendant’s presence)] if it

added a punishment in the sentencing entry.” (Emphasis sic.))

Jarmon did not discuss the implications of Marsh with respect to the

scope of Crim.R. 43(A), much less as it pertains to the vacation and deletion of

sentences or other punishments, sanctions, or penalties upon remand. Further,

Jarmon failed to address the fact that Crim.R. 43(A) only guarantees a right to be

present at the “imposition of sentence.” The procedural rule is silent as to a right to

be present when vacating or deleting sentences that do not create a more onerous criminal sanction. Crim.R. 43(A) does not establish the defendant’s right to be

present at a proceeding intending to remove, reduce, or maintain any portion of an

aggregate sentence. Inasmuch as Jarmon concluded that under Crim.R. 43(A) a

defendant maintains a right to be present for a sentencing hearing conducted solely

for the purpose of vacating or deleting a portion or the entirety of a sentence,

punishment, sanction, or penalty, the decision is overruled.

We recognize that Crim.R. 43(A) serves at least in part to protect a

defendant’s due process rights under the Ohio and federal Constitutions. An

accused’s absence from the trial proceedings, however, does not necessarily result

in the finding of constitutional error. State v. Frazier, 115 Ohio St.3d 139, 2007-

Ohio-5048, 873 N.E.2d 1263, ¶ 139. The defendant’s presence is a condition of the

right to due process “‘to the extent that a fair and just hearing would be thwarted by

his absence, and to that extent only.’” (Emphasis sic.) Id., quoting Snyder v.

Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934). There are

no constitutional due process prohibitions against overruling Jarmon. See, e.g.,

United States v. Blyden, 210 Fed.Appx. 928, 930 (11th Cir.2006) (although a

defendant has the constitutional right to be present at the imposition of a sentence,

that right does not extend to being present at reductions to a final sentence). A fair

and just proceeding is not thwarted by a defendant’s absence at proceedings solely

intended to delete or vacate any aspect of a criminal sanction. That defendant in

that situation could not impact the result of such a proceeding, which in this context

is expressly limited to adhering to the appellate mandate to vacate the entirety, or a portion, of a sentence, sanction, penalty, or other punishment, and to remove such

from the final entry of conviction that remains valid for all other offenses. See Marsh

at ¶ 10.

III. Conclusion

As a result of the foregoing analysis, we answer the en banc question

in the negative and hereby overrule Jarmon. Under Crim.R. 43(A), a defendant’s

presence is not required at any proceeding solely intended to vacate or delete any

portion of a sentence, punishment, penalty, or other criminal sanction upon remand

from a direct appeal.

______________________ SEAN C. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J.; MARY J. BOYLE, FRANK DANIEL CELEBREZZE, III, EILEEN T. GALLAGHER, EMANUELLA D. GROVES, KATHLEEN ANN KEOUGH, MICHAEL JOHN RYAN, and MICHELLE J. SHEEHAN, JJ., CONCUR;

EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY;

LISA B. FORBES and MARY EILEEN KILBANE, JJ., DISSENT.

Decision of the Merit Panel:

Elvin Maldonado appeals the trial court’s correction of his final entry

of conviction to reflect the deletion of any registration requirements imposed under

Sierah’s Law and a five-year sentence imposed on a “drive by shooting” firearm

specification that were vacated in a direct appeal. For the following reasons, the

convictions are affirmed. Maldonado was indicted in an eight-count indictment as follows:

Count 1 of attempted murder, a felony of the first degree in violation of R.C. 2923.02

and R.C. 2903.02(A); Counts 2 and 3 of felonious assault, felonies of the second

degree in violation of R.C. 2903.11(A)(1); Counts 4, 5, 6, and 7 of felonious assault,

felonies of the second degree in violation of R.C. 2903.11(A)(2); and Count 8 of

discharge of a firearm on or near prohibited premises, a felony of the first degree in

violation of R.C. 2923.162(A)(3). Each count had a one- and three-year firearm

specification as well as a five-year “drive by shooting” firearm specification.

Following a jury trial, Maldonado was found not guilty of attempted

murder and each of the one- and three-year firearm specifications, but guilty on all

other charges. Counts 2, 3, and 8 merged for sentencing, and the state elected to

proceed with sentencing on Count 8. The court sentenced Maldonado to five years

in prison for the “drive by shooting” firearm specification to be served prior to and

consecutively to four years in prison on Count 8 as well as five years in prison to be

served prior to and consecutively to four years in prison on Counts 4, 5, 6, and 7 each

to be served concurrently to the nine years on Count 8 for a total prison term of nine

years in prison. In addition, the trial court required Maldonado to register as a

violent offender following his release from prison pursuant to Sierah’s Law.

Upon remand from State v. Maldonado, 8th Dist. Cuyahoga No.

108907, 2021-Ohio-1724, in which the panel vacated the registration requirements

imposed under Sierah’s Law and a five-year sentence imposed on a “drive by

shooting” firearm specification, the trial court issued a corrected sentencing entry reflecting the aggregate sentence following the decision in the direct appeal, in effect

maintaining the aggregate term of imprisonment imposed at the original sentencing

hearing but decreasing the overall sanction through vacating the notification

requirements. Maldonado appeals the issuance of the corrected sentencing entry,

advancing two assignments of error.

In the first assignment of error, Maldonado claims the trial court

erred by failing to conduct a sentencing hearing, at which Maldonado’s presence was

required under Crim.R. 43(A).

This issue was resolved by this court through the en banc proceedings.

It is undisputed that Maldonado’s aggregate term of imprisonment was not

impacted by the deletion of the vacated firearm specification and removal of the

notification requirement under Sierah’s Law decreased the overall sentencing

burden. The first assignment of error is overruled based on the analysis presented

in the en banc portion of this opinion. Under Crim.R. 43(A), a defendant’s presence

is not required at any proceeding solely intended to vacate or delete any portion of

a sentence, punishment, penalty, or other criminal sanction upon remand from a

direct appeal. The trial court did not err in issuing a corrected sentencing entry

following the Maldonado remand.

In the second assignment of error, Maldonado claims that “[t]he trial

court erred when it did not include in the calculation of credit for time served on

resentencing all time served in prison prior to Appellant being resentenced on

June 18, 2021.” In other words, it appears Maldonado is claiming that the trial court is required to “make sure that [he] received credit for all time he was confined on all

concurrent counts” up to the issuance of the corrected entry of conviction pursuant

to State v. Christian, 159 Ohio St.3d 510, 2020-Ohio-828, 152 N.E.3d 216, ¶ 24.

In Christian, the Ohio Supreme Court concluded that upon remand

for a de novo resentencing, in which the reversed sentences were originally

concurrent to one another but imposed consecutively following de novo

resentencing on those affected counts, the offender is entitled to have his time served

in prison on the reversed sentences count toward the new aggregate sentence, but

only as to the counts actually affected by the direct appeal. Id., citing North Carolina

v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It must be

recognized that Christian appears to supplement R.C. 2967.191(A), reduction of

prison term for related days of confinement, which does not instruct the trial court

to calculate any time the offender serves in the custody of the department of

rehabilitation and correction (“ODRC”) and requires the trial court and the ODRC

to conduct separate calculations that comprise the total time-served calculation.

State v. Collier, 8th Dist. Cuyahoga No. 110222, 2021-Ohio-3202, ¶ 11, citing R.C.

2967.191(A). According to Collier, upon remand for the imposition of new sentences

the trial court conducts the days-of-confinement calculation under R.C. 2967.191(A)

for all confinement before prison. Id. The ODRC then separately calculates any time

the offender served within its custody to add to the trial court’s total; otherwise,

there would be the risk of double counting the offender’s time because the ODRC

does not determine whether inaccuracies exist in the trial court’s days-of- confinement calculation. Id., citing State ex rel. Fraley v. Ohio Dept. of Rehab. &

Corr., 161 Ohio St.3d 209, 2020-Ohio-4410, 161 N.E.3d 646, ¶ 17.

Collier, despite its reliance on the unambiguous statutory language,

appears to conflict with Christian. Under the holding of Christian, without any

reference to R.C. 2967.191(A), when imposing a new sentence for an offense on

remand, the “trial court must order that a defendant receive full credit for any

punishment that the defendant previously served for that offense[,]” even if that

includes time the offender spent in the custody of ODRC. Id. at ¶ 24. Collier,

following the statutory language, concluded otherwise. Whether Christian’s

analysis survives the plain reading of R.C. 2967.191(A) is a question beyond the

scope of the current appeal.

Christian is limited in scope and only applies to situations in which

sentences imposed upon certain counts are reversed or vacated and remanded for a

de novo resentencing on those affected counts — the “affected counts” being the

actual sentence reversed in the direct appeal. See id. In simplistic terms, when

prison sentences are reversed or vacated in a direct appeal, there is no longer any

prison sentence for that count. The prison portion of the sentence upon that affected

count only comes into existence at the time of the de novo resentencing. Upon that

resentencing, the trial court must account for any time previously served on that

particular count up to the imposition of the new sentence of imprisonment, but only

with respect to those counts actually affected by the direct appeal. See Christian,

159 Ohio St.3d 510, 2020-Ohio-828, 152 N.E.3d 216. In this case, the remand from Maldonado did not affect any of the

counts for which Maldonado is currently serving time in prison — the sole issue on

remand was to delete a concurrent term and a reporting requirement. Christian

does not apply. Maldonado received credit recognizing his served term of

confinement prior to the imposition of sentences at the original sentencing hearing.

Since Maldonado affirmed all convictions that Maldonado is currently serving, he is

not entitled to a new calculation of the credit. Maldonado’s current argument would

in effect double count his prison time on convictions that were not impacted by

Maldonado.

Having presented no other argument for review, the second

assignment of error is overruled.

Maldonado’s convictions are 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.

_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE

JAMES A. BROGAN, J.,* CONCURS; LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY

*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court of Appeals.)