State v. Maldonado, 2023 Ohio 522

Elvin Maldonado was convicted on multiple felonies with firearm specifications, including a five-year "drive-by" firearm specification and Sierah’s Law registration; his aggregate prison term remained nine years after sentencing.
On direct appeal the appellate panel vacated the five-year drive-by specification and the Sierah’s Law registration requirement and remanded for correction/deletion of those parts of the judgment.
The trial court issued a corrected sentencing entry deleting the vacated specification and the registration requirement but did not conduct a new sentencing hearing or bring Maldonado into court.
Maldonado appealed, arguing (1) Crim.R. 43(A) entitled him to be present at any hearing or resentencing that resulted in deletion of a sentence component, and (2) the court erred by not recalculating credit for time served under State v. Christian.
The district court recognized a conflict between State v. Jarmon (panel decision) and State v. Howard about whether Crim.R. 43(A) requires presence when a remand only deletes/vacates part of an aggregate sentence.
The en banc court overruled Jarmon, relying on Ohio Supreme Court authority, held the defendant’s presence is not required when a remand only deletes/vacates punishment (no new or more onerous sanction), and affirmed Maldonado’s convictions and the corrected entry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Crim.R. 43(A) requires defendant to be present when a remand only vacates or deletes part of an aggregate sentence	State: Crim.R. 43(A) applies to imposition of sentence; no right to be present where only a punishment is deleted and overall burden is not increased	Maldonado: Crim.R. 43(A) guarantees the right to be present at proceedings effecting any change to sentence, including deletion of a vacated specification	En banc: No. Crim.R. 43(A) does not require presence for proceedings solely intended to vacate/delete punishment; Jarmon overruled; Howard and Marsh control
Whether trial court erred by not recalculating credit for time served under Christian on remand that deleted a specification	State: Christian applies only to de novo resentencing of affected counts; here remand did not affect counts Maldonado is serving	Maldonado: He should receive recalculated credit for all confinement up to corrected entry under Christian	Court: Christian inapplicable because remand did not require de novo resentencing of the counts Maldonado is serving; no new credit calculation required

State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 128 N.E.3d 222 (Ohio Supreme Court) (Crim.R. 43(A) does not require defendant presence when punishment is deleted on remand)
State v. Christian, 159 Ohio St.3d 510, 152 N.E.3d 216 (Ohio Supreme Court) (court must credit time previously served for counts that are de novo resentenced on remand)
State v. Wilson, 129 Ohio St.3d 214, 951 N.E.2d 381 (Ohio Supreme Court) (only sentences affected by appealed error are subject to de novo review)
United States v. Clark, 816 F.3d 350 (5th Cir.) (defendant presence not required every time judicial action corrects a sentence)
United States v. Erwin, 277 F.3d 727 (5th Cir.) (same principle regarding presence for sentence corrections)
Snyder v. Massachusetts, 291 U.S. 97 (U.S. Supreme Court) (defendant presence required only to the extent absence thwarts a fair hearing)
Pearce v. North Carolina, 395 U.S. 711 (U.S. Supreme Court) (principles concerning credit and vindictiveness in resentencing)
State ex rel. Strothers v. Turner, 79 Ohio St.3d 272, 680 N.E.2d 1238 (Ohio Supreme Court) (precedent concerning transport/presence for resentencing)
United States v. Blyden, 210 Fed. Appx. 928 (11th Cir.) (constitutional right to be present at imposition of sentence does not extend to sentence reductions)