State v. Dunivant
2011 Ohio 6874
Ohio Ct. App.2011Background
- Appeal from Stark County Court of Common Pleas, Case No. 2003CR0092, after sentencing on April 23, 2003 to 18 years to life; nunc pro tunc entry filed May 20, 2003 for postrelease control ineligibility notice.
- Appellant Dunivant was not properly notified about postrelease control.
- December 1, 2010, the trial court conducted a resentencing hearing via video link to the prison facility to advise on postrelease control; journalized the same day.
- Appellant challenged (I) lack of physical presence at the resentencing and (II) ineffective assistance of counsel for not objecting to the video-resentencing procedure.
- The court concluded the errors were not structural, reviewed under plain error, found no prejudice, and affirmed the judgment of the trial court on both errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the video-resentencing without physical presence reversible error? | Dunivant argues Crim.R. 43(A) and due process require physical presence. | N/A | Not reversible; plain error not shown; video procedure deemed harmless. |
| Did trial counsel render ineffective assistance by not objecting to the video-resentencing? | Dunivant alleges counsel failed to protect presence rights. | N/A | Not proven; no prejudice shown; no finding of ineffectiveness. |
| Did Bezak framework apply and affect the analysis of the resentencing proceeding? | Bezak-based resentence via video complied with statutory standards. | N/A | Acknowledged; Bezak framework applied; issues treated under plain error analysis. |
Key Cases Cited
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (reaffirmed standards for Bezak-based resentencing)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (limits on appeals from resentencing with postrelease control)
- State v. Singleton, 124 Ohio St.3d 173 (2009-Ohio-6434) (Bezak-related framework guidance on postrelease issues)
- State v. Hale, 119 Ohio St.3d 118 (2008-Ohio-3426) (constitutional right to presence at stages of criminal proceedings)
- State v. Mullins, 2011-Ohio-1256 (Franklin App. 2011) (presence and prejudice analysis in video-resentencing context)
- State v. Warren, 2010-Ohio-5718 (Ohio App. 2010) (presence without waiver may be improper but not plain error without prejudice)
- State v. Williams, 6 Ohio St.3d 281 (1983-Ohio-) (prejudice requirement for non-waived presence issues)
- State v. Glaros, 170 Ohio St. 471 (1960) (plain error rule; defendant must object to be raised on appeal)
- State v. Long, 53 Ohio St.2d 91 (1978) (plain error doctrine; harms substantial rights)