State v. Sherrell

2011 Ohio 1033

Opinion

[Cite as State v. Sherrell, 2011-Ohio-1033.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 2010 CA 00208 HOMER NORMAN SHERRELL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2006 CR 00814(B)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 28, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO RICHARD DRAKE PROSECUTING ATTORNEY 303 Courtyard Centre RONALD MARK CALDWELL 116 Cleveland Avenue, NW ASSISTANT PROSECUTOR Canton, Ohio 44702 Stark County, Case No. 2010 CA 00208 2

Wise, J.

{¶1} Appellant Homer Norman Sherrell, aka Kenneth Sherrell, appeals from his

felony resentencing in the Court of Common Pleas, Stark County. The relevant facts

leading to this appeal are as follows.

{¶2} On June 20, 2006, the Stark County Grand Jury indicted appellant on one

count of robbery, R.C. 2911.02(A)(2). Appellant ultimately entered a plea of guilty, and

was sentenced on July 13, 2006 to four years in prison. The trial court also notified

appellant of mandatory post-release control “up to a maximum of three (3) years.”

Appellant did not appeal therefrom.

{¶3} In 2007 and 2008, appellant filed motions for judicial release, both of

which were overruled by the trial court.

{¶4} On March 8, 2010, the trial court sua sponte ordered a resentencing

hearing. On April 12, 2010, appellant appeared for resentencing via a video link. The

trial court corrected the PRC notification at that time to “a mandatory period of three (3)

years of post-release control, pursuant to R.C. 2967.28(B).”

{¶5} On September 2, 2010, this Court granted leave for appellant to file a

delayed appeal. He herein raises the following sole Assignment of Error:

{¶6} “I. THE TRIAL COURT VIOLATED THE APPELLANT’S RIGHT TO BE

PRESENT IN COURT AT HIS SENTENCING HEARING.”

I.

{¶7} In his sole Assignment of Error, appellant contends the trial court's

procedure to impose corrected PRC requirements was violative of his right to be

present at his sentencing hearing. We disagree. Stark County, Case No. 2010 CA 00208 3

{¶8} R.C. 2929.191 sets forth the mechanism for correcting a sentence that

fails to properly impose post-release control. Said provision applies prospectively to

sentences entered on or after July 11, 2006. State v. Pearson, Montgomery App.No.

23974, 2011-Ohio-245, f.n. 3, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, ¶¶ 35-36. See, also, State v. Nesser, Licking App.No. 10CA61, 2011-Ohio-94, f.n.

1.

{¶9} In the case sub judice, appellant’s sentencing entry was filed on July 13,

2006; hence, we apply the requirements of R.C. 2929.191 as set forth in Singleton.

Subsection (C) of the statute reads in pertinent part as follows: “On and after the

effective date of this section, a court that wishes to prepare and issue a correction to a

judgment of conviction of a type described in division (A)(1) or (B)(1) of this section shall

not issue the correction until after the court has conducted a hearing in accordance with

this division. *** 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. ***.”1

{¶10} Accordingly, we find no merit in appellant’s challenge to his PRC video

conference resentencing hearing. We additionally note that appellant, raising a

constitutional challenge for the first time on appeal, has recited Sec. 10, Article I of the

Ohio Constitution in support of his “right to be present” argument. However, we find his

1 See, also, Crim.R. 43(A)(2), which provides criteria for allowing proceedings via remote contemporaneous video without a defendant’s physical presence. Stark County, Case No. 2010 CA 00208 4

brief lacks development of this argument in accordance with App.R. 16(A)(7). The case

law cited by appellant, particularly State v. Marshall, Lucas App. No. L-00-1381, 2002-

Ohio-4826, is focused on the issue of disruptive courtroom behavior by a defendant

warranting exclusion from proceedings. We thus find no reversible error in appellant's

PRC resentencing under the circumstances presented.

{¶11} Appellant’s sole Assignment of Error is overruled.

{¶12} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

___________________________________

JUDGES JWW/d 0210 Stark County, Case No. 2010 CA 00208 5

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : HOMER NORMAN SHERRELL : : Defendant-Appellant : Case No. 2010 CA 00208

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

Costs assessed to appellant.

JUDGES