State v. Sherels
2011 Ohio 3392
Ohio Ct. App.2011Background
- Sherels was indicted in 2009 for failure to verify address (Count 1) and failure to provide notice of change of address (Count 2).
- Plea agreement amended Count 1 to attempted failure to verify address, a felony of the third degree; Sherels pled guilty to amended Count 1 and Count 2 was nolled.
- Sentenced on March 9, 2010 to one year in prison with a mandatory five years of postrelease control.
- The Ohio Dept. of Rehabilitation and Correction later advised the judgment did not properly advise of discretionary postrelease control, triggering a correction of judgment under R.C. 2929.191(C).
- A correction hearing was held on October 7, 2010 via video conference after Sherels waived his physical presence; counsel remained in court.
- The court reimposed the one-year sentence and advised postrelease control of up to three years at the discretion of the parole board, per R.C. 2967.28(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to inform on the record about private attorney communication during the hearing violated Crim.R. 43(A)(2)(d). | State argues no prejudice from lack of private-communication instruction. | Sherels contends Crim.R. 43(A)(2)(d) violation constitutes plain error. | No plain error; no prejudice shown; waiver and lack of objection sustain the decision. |
Key Cases Cited
- State v. Steimle, 2011-Ohio-1071 (Cuyahoga App. No. 95076) (Crim.R. 43 harmless error when no prejudice shown)
- State v. Reed, 2010-Ohio-5819 (Franklin App. No. 09AP-1164) (plain error analysis for Crim.R. 43 violation)
- Long, 53 Ohio St.2d 91 (1978) (plain error requires showing of prejudice)
- Morton, 2011-Ohio-1488 (Franklin App. No. 10AP-562) (Crim.R. 43(A)(2)(d) error during resentencing without prejudice)