State v. SteimleState v. Steimle
JUDGMENT: AFFIRMED
Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Matthew E. Meyer
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Christ Steimle appeals his resentencing and assigns the following errors for our review:
“I. Defendant was denied due process of law when the court conducted a resentence hearing by video without an express waiver of consent.”
“II. Defendant was denied due process of law when the court imposed post-release control where the issue of post-release control was waived by the prosecution.”
“III. Defendant was denied due process of law when he was resentenced over 11 years after his original sentence.”
{¶ 3} On August 5, 1999, Steimle pleaded guilty to felonious assault and intimidation; the charges resulted from an assault on his wife and subsequent threats that she not testify against him. The trial court sentenced Steimle to a maximum term of eight years imprisonment for the felonious assault conviction, and five years for the intimidation conviction, which he was to serve consecutively.
{¶ 4} On Steimle‘s direct appeal, we affirmed his convictions, but vacated the sentences and remanded for resentencing because the trial court failed to state the findings then required by
{¶ 5} Again, Steimle appealed alleging the trial court erred in resentencing him and in denying his oral motion to withdraw his guilty pleas. We found that Steimle was denied effective assistance of counsel at his second resentencing hearing and that the trial court failed to conduct a new sentencing hearing. State v. Steimle, Cuyahoga App. Nos. 79154 and 79155, 2002-Ohio-2238 (“Steimle II“). Consequently, Steimle‘s sentence was again vacated, and the case was remanded for a third sentencing hearing.
{¶ 6} On remand, the trial court sentenced Steimle to a term of seven years for felonious assault and four years for intimidation, for a total of 11 years. At the resentencing hearing, Steimle renewed his motion to withdraw his guilty plea. The trial court declined to revisit Steimle‘s motion.
{¶ 7} Steimle appealed, but we affirmed the decision of the trial court that refused to consider his motion to withdraw his guilty plea. We held that the trial court lacked jurisdiction at Steimle‘s resentencing hearing to address his motion to withdraw his guilty plea; we held the motion was filed after we had affirmed Steimle‘s conviction and during the remand for sentencing only. State v. Steimle, Cuyahoga App. Nos. 82183 and 82184, 2003-Ohio-4816 (“Steimle III“). Steimle appealed to the Ohio Supreme Court, which declined jurisdiction. State v. Steimle, 101 Ohio St.3d 1424, 2004-Ohio-123, 802 N.E.2d 155.
{¶ 8} Thereafter, Steimle filed an application to reopen our judgment on his direct appeal, which we denied. State v. Steimle, Cuyahoga App. Nos. 77005, 77006, 77302, and 77303, 2005-Ohio-3478. Steimle filed a motion for summary judgment, which the trial court denied. Steimle appealed the trial court‘s denial of his motion for summary judgment and also challenged
{¶ 9} On March 3, 2010, the trial court sua sponte convened a resentencing hearing to impose postrelease control. Steimle appeared at the hearing by video conference from prison and objected to being represented by the court appointed attorney. The trial court explained postrelease control and adjourned the hearing.
{¶ 10} On April 1, 2010, the trial court convened a second hearing. Steimle again appeared at the hearing by video conference, but requested a continuance to hire an attorney of his choice. The trial court granted the continuance and adjourned the hearing.
{¶ 11} On April 13, 2010, the trial court convened a third hearing, and Steimle appeared by video conference with his retained counsel present in the courtroom. Steimle did not object to appearing by video, but objected to the purpose and to the timing of the hearing. Over his objections, the trial court resentenced Steimle and notified him that at the expiration of his prison term he would be placed on postrelease control for a period of three years.
Video Conference Sentencing Hearing
{¶ 13} The facts of this case are important to the resolution of this matter. Steimle was sentenced in 1999 to 13 years in prison; ultimately, in 2003, he was resentenced to 11 years in prison; thus, reducing the 13 years to 11 years. As Steimle was nearing the end of his sentence, the trial court was advised that postrelease control was never imposed. The trial court conducted three video conferences with Steimle. The first video conference was set sua sponte by the trial court; thereafter, the matter was continued. Nineteen days prior to Steimle completing his sentence, the trial court conducted the second video conference and the following colloquy took place:
“The Defendant: I‘d like you to give me a continuance to hire Paul Mancino, my appellate lawyer. That was my court appointed counsel during my appeals. I‘d like for him to set up some kind of telephone conference where I can talk to him on the phone about what — you know, about this whole thing. I don‘t want to come back to county jail, that‘s one thing I don‘t want to do, * * *.
“The Court: * * * There‘s no way for — I wasn‘t intending to order you back to county jail to do this. That‘s why I‘m setting these up as teleconferences. I‘m doing like four or five of these today, and then I‘m done with them I think. I don‘t mean to confuse you in any way or do anything you don‘t understand which is why I have counsel for you here. I didn‘t realize you had a preference. Last time you didn‘t want to be represented at all or you definitely didn‘t want Stu Lippe as your counsel and I understand that. I didn‘t realize you had such a falling out. At the same time, I need to get this done because your out date is when? “The Defendant: April 20th.
“The Court: Well, you know, it‘s really up to you. I mean, that gives me a little bit of time, 19 days to do this. * * *” Tr. 8-9.
{¶ 14} On April 13, 2010, the third and final video conference was conducted. Steimle‘s lawyer, who is also Steimle‘s attorney in this appeal, was physically present at the hearing while Steimle appeared by video. Neither the attorney nor Steimle objected to the video conference or invoked Steimle‘s right to personally appear for resentencing. In fact, as the above colloquy shows, Steimle made it clear at the second video conference hearing that he did not want to return to the county jail because he was due to be released from prison in 19 days.
{¶ 16} Since the Ohio Supreme Court decided State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, the conclusion has been that
{¶ 17} Regardless of Fischer‘s implication, we follow State v. Reed and resolve this assigned error under the harmless error doctrine. Steimle‘s failure to object to the video conference constitutes a waiver unless he prevails under plain error. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804; State v. Warren, 10th Dist. No. 10AP-376, 2010-Ohio-5718. 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. Long at 95. In Reed, that court held, and we agree, that although the right to be present at all critical stages of a criminal trial is a fundamental right, a violation of
{¶ 18} In this case, the trial court afforded every opportunity for Steimle to be represented and appear by video conference for the correction of his sentence. Steimle explained to the court that he did not want to return to county jail and neither he nor his attorney objected to appearing via video.
{¶ 19} Therefore, Steimle has not shown plain error, which is his burden to demonstrate; consequently, any error in failing to obtain an express waiver under
Sentencing Hearing Erroneous
{¶ 20} We will address Steimle‘s second and third assigned errors together as they both concern the resentencing hearing conducted in April 2010. Steimle argues the trial court could not resentence him to include postrelease control because the state had not previously appealed his sentence. Steimle‘s contention is without merit.
{¶ 21}
{¶ 22} Here, despite the state‘s failure to appeal the sentence, the trial court had full authority to conduct the resentencing hearing to provide the required notification, because Steimle had not yet been released from prison. Further, a prosecutor cannot bind the people or a court to an unlawful or otherwise void sentence by failing to appeal it properly. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.
{¶ 23} Steimle also argues the trial court violated his due process rights by resentencing him within days of his release from prison. This contention is also without merit. Based on our above discussion, a trial court has the authority to correct the sentence while the offender remains in prison. State v. Smith, Cuyahoga App. No. 94732, 2010-Ohio-6361, citing Simpkins supra. As Steimle was still in jail, albeit days before his release, the trial court could still conduct the resentencing hearing. Accordingly, we overrule the second and third assigned errors.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MARY J. BOYLE, J., and
COLLEEN CONWAY COONEY, J., CONCUR