State v. CarterState v. Carter
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Juliа R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Stephen D. Long, for appellant; Willie James Carter, III, prо se.
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HANDWORK, J.
{¶ 1} Appellant, Willie James Carter, III, appeals his resentencing on two counts of aggravated murder in violation of
{¶ 2} In 1997, the trial court sentenced appellant to a term of life with the possibility of parole after 20 years as to the counts of aggravated murder and a term of four years as to the count of burglary, and ordered that the sentences be served consecutively to each other and consecutively to a 12-month sentence imposed for carrying a concealed weapon in case No. CR199701330. This cоurt affirmed appellant‘s convictions in State v. Carter (Mar. 10, 2000), 6th Dist. No. L-97-1334.
{¶ 3} On November 12, 2010, appellant moved pro se for resentencing pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, on grounds that the original sentence was void for having omitted a statutorily mandated term of postrelease control. On December 20, 2010, the trial court held a resentencing hearing to inform appellant of his postrelease control responsibilities. Over the objection of appellant and his appointed trial counsel, the hearing was held by way of videoconferenсing. At the hearing, the trial court properly notified appellant of his postrelease control sanctions and otherwise imposed the same sentence thаt it imposed in 1997. The trial court journalized its resentencing order on January 3, 2011, and this appeal followed.
{¶ 4} In Anders, the United States Supreme Court held that if counsel, after a cоnscientious examination of the case, determines it to be wholly frivolous, he or she should so advise the court and request permission to withdraw. Id., 386 U.S. at 744.
{¶ 5} In this case, appointed counsel for appellant has fully satisfied the requirements set forth in Anders. Counsel states that he has thoroughly examined the record and is unable to discover what he considers a meritorious, appealable issue. Counsel has requested permission to withdraw and has accompanied his request with a brief сontaining the following proposed assignments of error:
{¶ 6} “1. The trial court erred by resentencing appellant via video conference, in a summary hearing, with no priоr notice, in violation of his due process rights.
{¶ 7} “2. The trial court erred in failing to conduct a de novo sentencing.”
{¶ 8} Counsel served appellant with a copy of the brief and motion to withdraw, and appellant has submitted his own brief in which he argues the merits of the second proposed assignment of error. The state has filed a brief in response, stating that it agrees with appellant‘s counsel that there is no arguable basis for any valid assignment of error. This court will now proceed with an examination of the рroposed assignments of error,
{¶ 9} Considering the issues in their logical order, we first address the second proposed assignment of error. Appellant argues that the trial court was required to hold a complete de novo resentencing hearing pursuant to State v. Bezak. However, in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 36, the Supreme Court of Ohio overruled that portion of its decision in Bezak that required a complete de novo resentencing in order to correct the failure to properly impose a mandatory term of postrelease control. Instead, the court held, “The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to the proper imposition of postrelease control.” Id., paragraph two of the syllabus. Thus, pursuant to Fischer, the trial court has no authority at resentencing to revisit the terms of the original sentence or “do anything other than correctly impose post-release control upon [the defendant].” State v. Smith, 9th Dist. No. 10CA009819, 2011-Ohio-398, ¶ 7.
{¶ 10} In this case, appellant‘s resentencing hearing was held three days before Fischer was decided. Apparently following the dictates of Bezak, the trial court afforded appellant and his attorney an opportunity make a statement in regard to sentencing, reconsidered the presentence investigation report, thе principles and purposes of sentencing under
{¶ 11} As to the first proposed assignment of error, a legitimate argument could be made that in spite of Fischer, a resentencing hearing to impose postrelease control may not be conducted by videoconference unless the trial court provides appropriate noticе and obtains an express waiver of the defendant‘s right to be physically present in accordance with
{¶ 12} In this case, any error in regard to notice or physical presence wаs manifestly harmless. The trial court reimposed the same sentence as originally ordered
{¶ 13} Our own examination of the recоrd reveals no other point of arguable merit. Thus, appellant‘s appeal is wholly frivolous. Appellate counsel‘s motion to withdraw is found well-taken and hereby grаnted.
{¶ 14} The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
Peter M. Handwork, J. _______________________________ JUDGE
Arlene Singer, J. _______________________________ JUDGE
Thomas J. Osowik, P.J. CONCUR. _______________________________ JUDGE
This decision is subject tо further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.