2012 Ohio 4747
Ohio Ct. App.2012Background
- Defendant David E. Howard, Jr. pled guilty in 2004 to aggravated robbery (F1) and felonious assault (F2) and was sentenced to four years for each, served consecutively.
- In 2011, the trial court re-sentenced Howard to address post-release control pursuant to State v. Fischer.
- The State elected to proceed on the aggravated robbery conviction as the allied offense, resulting in an eight-year prison term and a 5-year post-release control mandate.
- Howard attended the re-sentencing hearing by video conference, and the court advised him of post-release control.
- Howard challenged Crim.R. 43 compliance (presence, private communications) but the court found any error harmless; the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the re-sentencing violated Crim.R. 43 presence and communication requirements. | State | Howard contends failure to secure presence and private communication violated Crim.R. 43 | Harmless error; no plain error; decision affirmed. |
Key Cases Cited
- State v. Morton, No. 10AP-562 (2011-Ohio-1488) (plain error review when no obstruction raised)
- State v. Steimle, No. 95076 (2011-Ohio-1071) (plain error review with video appearances)
- State v. Long, No. 1978-Ohio St.2d 91 (1978) (plain error standard for Crim.R. 52(B))
- State v. Moreland, 50 Ohio St.3d 58 (1990) (plain error requires prejudice to be shown)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (post-release-control framework guiding re-sentencing)