State v. McCollins
2011 Ohio 2398
Ohio Ct. App.2011Background
- McCollins was charged in 2003 with two counts of rape involving a child under 13 and two counts of kidnapping with sexual motivation specifications; he pled guilty to one count of rape (force element removed) and other charges were dismissed.
- The trial court sentenced him on October 31, 2003 to seven years' imprisonment, found him to be a sexually oriented offender, and advised that post-release control was part of the sentence for the maximum allowed under RC 2967.28.
- Approximately 36 hours before his scheduled release, on July 1, 2010, the trial court resentenced him by video conference to the same seven-year term and imposed a five-year mandatory postrelease control.
- McCollins appealed, challenging (1) the video-conference imposition of postrelease control without a Crim.R. 43(A) waiver and (2) the failure to provide allocution at resentencing.
- The appellate court found McCollins had not objected to the video appearance, thus waived these issues except for plain error, and concluded no plain error occurred; it also deemed the lack of allocution harmless given the circumstances.
- The court affirmed the resentencing, remanded for execution, and noted the five-year postrelease control was mandatory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Video conferencing of postrelease control without waiver | McCollins argues Crim.R. 43(A) and due process require physical presence; waiver not shown. | McCollins contends video appearance violates Crim.R. 43(A) absent a waiver. | Waived beyond plain error; no reversible error. |
| Allocution at resentencing | McCollins asserts failure to afford right of allocution violated Crim.R. 32(A)(1). | McCollins contends the court should have addressed him in person for mitigation. | Harmless error; allocution not required to change outcome given mandatory postrelease control. |
Key Cases Cited
- State v. Moore, 2006-Ohio-816 (Ohio Ct. App. Dist.) (distinguishes waiver requirement for video-conference objections)
- State v. Hale, 119 Ohio St.3d 118 (2008-Ohio-3426) (constitutional rights at proceedings and Crim.R. 43(A) interpretation)
- State v. Davis, 116 Ohio St.3d 404 (2008-Ohio-2) (absence may be harmless if no prejudice)
- State v. Williams, 6 Ohio St.3d 281 (1983) (Crim.R. 43(A) violation is subject to harmless error analysis)
- State v. Armas, 2005-Ohio-2793 (Ohio Ct. App.) (Crim.R. 43(A) violation not structural; harmless error analysis applicable)
- State v. Awan, 22 Ohio St.3d 120 (1986) (waiver principle for constitutional challenges on appeal)
- State v. Campbell, 90 Ohio St.3d 320 (2000-Ohio-183) (allocution generally not prejudicial when circumstances militate)
- State v. Reynolds, 1998-Ohio-171 (Ohio) (allocution and sentencing conduct considerations)
- State v. Arroyo, 2008-Ohio-3808 (Ohio Ct. App.) (allocution considerations in sentencing context)
- State v. Long, 53 Ohio St.2d 91 (1978) (plain-error standard for reviewing trial errors)