State v. ReedState v. Reed
Rendered on November 30, 2010
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Kenneth Reed, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court found him guilty of aggravated possession of drugs without specification, in violation of
{¶2} On January 24, 2001, after the trial court found him guilty, pursuant to a bench trial, appellant was sentenced to a mandatory minimum ten-year imprisonment term for aggravated possession of drugs. However, the trial court failed to notify appellant
{¶3} In March 2007, the state of Ohio, plaintiff-appellee, filed a motion for resentencing, pursuant to
[I.] The trial court erred by failing to conduct a de novo sentencing hearing.
[II.] The trial court‘s imposition of postrelease control by videoconference violated
Crim.R. 43(A) and Mr. Reed‘s Due Process right to be physically present at every stage of his criminal proceeding.[III.] Appellant was constructively denied the right to counsel as provided by the
Sixth Amendment .[IV.] The trial court denied Mr. Reed his right of allocution.
[V.] The trial court‘s addition of postrelease control to Mr. Reed‘s original sentence violated his right to be free from Double Jeopardy.
[VI.] Trial counsel was ineffective.
{¶5} Initially, we note that appellant failed to raise this argument at the time of the hearing. Failure to object results in a waiver of the issue on appeal. State v. Carr (1995), 104 Ohio App.3d 699, 703. Therefore, our review must proceed under a plain-error analysis. Plain error does not exist unless it can be said that, but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91.
{¶6} As indicated above, appellant argues the trial court did not conduct a de novo sentencing hearing. However, after reviewing the facts and circumstances in the present case, we conclude the trial court did, in fact, hold a de novo sentencing hearing. The trial had several characteristics of a de novo hearing. The state initially told the trial
{¶7} Appellant, however, points out several ways in which he believes the trial court‘s hearing lacked the indicia of a de novo sentencing hearing. Appellant first points to the state‘s request that the “original sentence” be reimposed with the addition of PRC. However, we see nothing that would prohibit a prosecutor from recommending a sentence to the court in a de novo hearing, even if it were requesting the same sentence that the court originally imposed. Indeed, that the state sought to have the “original” sentence imposed further supports the view that the purpose of the resentencing hearing was to order an entirely new sentence and not merely carry over the previous sentence with the addition of PRC.
{¶8} Appellant also points to the fact the court did not indicate at the hearing that it considered the factors in
{¶9} Appellant additionally points out that the entry was labeled “nunc pro tunc,” which is a correction of a prior order and not a new order, and indicated that sentence was imposed pursuant to
{¶10} In support of its contention that the trial court did not conduct a de novo hearing, appellant also points out that the court did not provide him an opportunity for allocution. Although the trial court was required to provide appellant an opportunity for allocution, as discussed further in this decision, we cannot say its failure to do so was necessarily indicative of a non-de novo hearing, given the above indications to the contrary. For these reasons, we find the trial court conducted a de novo hearing.
{¶11} Importantly, in order to find plain error, appellant must show that the outcome would have clearly been different, but for the claimed error. Appellant here fails
{¶12} Appellant argues in his second assignment of error that the trial court‘s imposition of PRC by video conference violated
{¶13} The state argues that, even if physical presence is required by
{¶14} Initially, we note that appellant‘s rights were adequately protected. Appellant was represented by counsel. See Williams at 286 (absence during proceedings was not a violation of due process when defendant‘s interests were adequately represented by his attorney). Appellant also cannot show that his counsel was defective in any manner, as discussed infra. Furthermore, appellant suffered no prejudice by not being physically present and being present only via remote video. The trial court resentenced appellant to the same sentence as originally ordered, and the five-year period of PRC ordered by the trial court was mandatory. Appellant does not claim that his physical presence could have changed the outcome of the trial, and we fail to see how his physical presence could have made any difference. See id. at 286 (no prejudice resulted from absence when there was no evidence that defendant‘s attendance at the proceedings would have contributed little to his defense). Therefore, we find that a fair and just hearing was not in any way
{¶15} Appellant argues in his third assignment of error that he was constructively denied the right to counsel as provided by the
{¶16} Appellant does claim that his counsel could have done a number of things if he would have had more time. For example, appellant claims his counsel could have filed a motion for new trial challenging the weight of the seized cocaine, requested an updated pre-sentence investigation report to discover information relevant to the weight of the cocaine, demanded exculpatory evidence under
{¶17} Appellant argues in his fourth assignment of error that the trial court denied him his right of allocution pursuant to
{¶18}
{¶19} In the present case, although the trial court erroneously failed to give appellant an opportunity for allocution, the error was harmless. As indicated above, the trial court sentenced appellant to the minimum prison term allowed, imposed no fines, waived costs, and ordered the mandatory period of PRC. Any allocution by appellant could have had no positive effect on the results of the proceeding. Therefore, appellant‘s fourth assignment of error is overruled.
{¶21} Appellant failed to raise this issue before the trial court; therefore, any error must be plain error. Nevertheless, as we have found under appellant‘s first assignment of error that the sentencing proceeding was, in fact, de novo, there was no double jeopardy violation. The Supreme Court of Ohio has found that a de novo resentencing to include statutorily mandated periods of PRC does not offend the Double Jeopardy Clause or Due Process Clause. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197. For these reasons, appellant‘s fifth assignment of error is overruled.
{¶22} Appellant argues in his sixth assignment of error that his trial counsel was ineffective. Appellant does not specify in what way his trial counsel was ineffective, but merely argues that, to the extent his trial counsel may have waived any of the errors raised in the brief by failing to properly object, his performance was defective.
{¶24} Although we have found in several instances above that appellant waived all but plain error due to his counsel‘s failure to raise certain issues at the time of the hearing before the trial court, we cannot find that, but for counsel‘s failure to raise the issues, the results of the proceeding would have been different. As shown above, many of the issues raised by appellant in his appeal had no merit, and counsel could have reasonably believed that the trial court would have overruled the arguments. Furthermore, because the trial court gave appellant the minimum prison term, imposed no fines, waived any costs, and ordered the mandatory period of PRC, appellant‘s counsel could have reasonably believed that any arguments he raised would not have been able to reduce any part of appellant‘s sentence. Therefore, because appellant has failed to show any prejudicial impact from his attorney‘s alleged failures, we find he was not provided ineffective assistance of trial counsel. Appellant‘s sixth assignment of error is overruled.
Judgment affirmed.
FRENCH and HENDERICKSON, JJ., concur.
HENDRICKSON, J., of the Twelfth Appellate District, sitting by assignment in the Tenth Appellate District.
_______________________________