State v. Sherels

2011 Ohio 3392

• Court: Ohio Court of Appeals
• Decided: July 7, 2011
• Docket: 95975
• Status: Published

Opinion

[Cite as State v. Sherels, 2011-Ohio-3392.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95975

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

GREGORY SHERELS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-528956

BEFORE: E. Gallagher, J., Boyle, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: July 7, 2011 2

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 County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Gregory Sherels, appeals from a correction

of judgment of conviction in the Cuyahoga County Court of Common Pleas.

Appellant argues that the trial court committed plain error in conducting a

correction of judgment of conviction hearing by video conference pursuant to

R.C. 2929.191(C) without complying with Crim.R. 43(A)(2). For the

following reasons, we affirm the judgment of the trial court.

{¶ 2} Appellant was indicted on September 29, 2009, and charged 3

with failure to verify address in violation of R.C. 2950.06(F), (Count 1), and

failure to provide notice of change of address in violation of R.C.

2950.05(E)(1), (Count 2). Appellant initially pled not guilty to the

indictment. On February 17, 2010, pursuant to a plea agreement between

the state and appellant, the state moved to amend Count 1 to attempted

failure to verify address, a felony of the third degree. Under the plea

agreement, appellant pled guilty to the amended Count 1, and Count 2 was

nolled. Appellant was sentenced on March 9, 2010 to a prison term of one

year. The trial court additionally advised appellant of a mandatory five

years of postrelease control.

{¶ 3} Prior to the completion of appellant’s prison term, the trial court

was notified by the Ohio Department of Rehabilitation and Correction that

appellant’s judgment of conviction did not include the proper advisement of a

discretionary term of postrelease control. Pursuant to R.C. 2929.191(C), the

trial court held a hearing on October 7, 2010, for the purpose of determining

whether the court should issue a correction to the judgment of conviction.

The hearing was conducted with appellant appearing by way of video

conference and appellant’s attorney present in the courtroom. Appellant

expressly waived his physical presence in the courtroom and agreed to

proceed via video conference. The trial court determined that appellant had 4

previously been improperly advised of five years of mandatory postrelease

control. After hearing from both appellant’s attorney and the state, the trial

court reimposed appellant’s one-year sentence. Appellant’s release date of

October 10, 2010 was unaffected. The trial court corrected its earlier

postrelease control error and, pursuant to R.C. 2967.28(C), advised that a

period of postrelease control of up to three years at the discretion of the

parole board may be imposed.

{¶ 4} Appellant appeals the judgment of the trial court, and in his sole

assignment of error, argues that the trial court committed plain error when

it failed to inform him of how to communicate privately with his attorney

during the hearing in accordance with Crim.R. 43(A)(2)(d).

{¶ 5} For offenders sentenced after July 11, 2006, R.C. 2929.191(C)

allows a correction of judgment hearing to be conducted by way of video

conference. Crim.R. 43(A)(2) governs appearances by defendants via video

conference and provides, amongst other requirements, that, “[t]he 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

anytime, communicate privately with counsel. * * *” Crim.R. 43(A)(2)(d).

{¶ 6} In the present instance, appellant expressly waived his physical

presence in the courtroom and agreed to proceed via video conference. The 5

trial court did not inform appellant on the record how to communicate

privately with his attorney during the hearing in accordance with Crim.R.

43(A)(2)(d). However, appellant did not object to the trial court’s omission

nor did appellant, or his counsel, at any time during the hearing, indicate a

desire to confer privately.

{¶ 7} A violation of Crim.R. 43 is not structural error and can

constitute harmless error where the defendant suffers no prejudice. State v.

Steimle, Cuyahoga App. No. 95076, 2011-Ohio-1071, citing State v. Reed,

Franklin App. No. 09AP-1164, 2010-Ohio-5819. Appellant’s failure to

object to the trial court’s Crim.R. 43(A) omission constitutes a waiver unless

he prevails under plain error. Id.; State v. Long (1978), 53 Ohio St.2d 91,

372 N.E.2d 804; State v. Morton, Franklin App. No. 10AP-562,

2011-Ohio-1488. Plain error does not exist unless it can be said that, but

for the error, the outcome of the trial clearly would have been otherwise.

Long at 95.

{¶ 8} Appellant is unable to demonstrate plain error in the present

case because he cannot demonstrate that he was prejudiced, in any manner,

by the trial court’s failure to advise him pursuant to Crim.R. 43(A)(2)(d). As

noted above, at no point during the hearing did appellant ask to speak with

his attorney privately. Furthermore, appellant does not present any 6

argument as to how a private communication with his attorney could have

possibly changed the outcome of the proceeding. See Morton at ¶15 (trial

court’s Crim.R. 43(A)(2)(d) error during resentencing hearing resulted in no

prejudice to defendant where neither defendant nor his counsel indicated a

desire to confer privately). We note that the trial court, in correcting its

postrelease control sentence, was obligated under R.C. 2967.28(C) to include

a postrelease control term of up to three years at the discretion of the parole

board. Appellant presents no argument as to how a proper Crim.R.

43(A)(2)(d) instruction from the trial court would have changed this outcome.

{¶ 9} Appellant’s sole claim of prejudice stems from his speculation

that, but for the video conference hearing, the trial court would not have had

sufficient time prior to the expiration of his prison term to secure his

physical presence in court in order to conduct the hearing. However, this

alleged prejudice bears no relationship to the appellant’s claimed error. In

fact, appellant’s argument is without merit because he specifically agreed to

waive his physical presence in court and proceed via video conference.

{¶ 10} Appellant’s sole assignment of error is overruled, and the

judgment of the trial court is affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. 7

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.

EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and COLLEEN CONWAY COONEY, J., CONCUR