State v. WalkerState v. Walker
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Jesse M. Schmidt, Jesse M. Schmidt Co., L.P.A., 55 Public Square, #1414, Cleveland, OH 44113 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Louis M. Walker, appeals the Judgment Entry of Sentence of the Lake County Court of Common Pleas, sentencing him to a three-year prison term for Attempted Felonious Assault, and notifying him of a mandatory three-year period of post-release control. For the following reasons, we affirm the decision of the court below.
{¶3} On June 16, 2006, Walker entered a written plea of “guilty” to a lesser included offense of Count Two, Attempted Felonious Assault, a felony of the third degree in violation of
{¶4} On July 18, 2006, the trial court entered its Judgment Entry of Sentence, ordering Walker to serve a prison term of three years, to pay restitution to the victim in the amount of $2,436, and notifying him “that post release control is optional in this case up to a maximum of 3 years.”
{¶5} On October 16, 2009, Walker filed a Postsentence Motion to Withdraw Guilty Plea in accordance with
{¶7} On November 18, 2009, the trial court entered an Order Denying Motion to Withdraw Guilty Plea. The court held that Walker failed to establish the existence of a manifest injustice, in that the legal arguments on which he based his claim of ineffective assistance of counsel were “mistaken.”
{¶8} On November 23, 2009, Walker‘s sentencing hearing was held. Walker participated in the hearing by video conferencing, while remaining at the Lake Erie Correctional Institution. The trial court explained that its “sentencing entry showed that post release control is optional up to a maximum of three years,” but, “because of the aspect of violence, post release control is mandatory for three years in this case.” Defense counsel asked Walker if he understood the purpose of the hearing, to which Walker replied, “no.” Defense counsel then repeated the court‘s explanation of the hearing. Walker then engaged the court in a discussion concerning double jeopardy, his motion to withdraw his guilty plea for ineffective assistance of counsel, and whether his sentence was void.
{¶9} At one point, Walker asked the trial court if he was entitled to be represented by counsel and the court replied that he was represented by counsel at the
{¶10} The trial court imposed the original three-year sentence and restitution in the amount of $2,436, and advised Walker that post-release control was mandatory for a period of three years.
{¶11} On December 1, 2009, the trial court journalized its Judgment Entry of Sentence.
{¶12} On December 12, 2009, Walker completed his stated prison term and was released.
{¶13} On December 15, 2009, Walker filed a Notice of Appeal from the trial court‘s December 1, 2009 Judgment Entry of Sentence.
{¶14} On appeal, Walker raises the following assignments of error:
{¶15} “[1.] The trial court erred by resentencing appellant via video conference, in a summary hearing, with no prior notice, in violation of his due process rights.”
{¶16} “[2.] The trial court erred when it denied appellant‘s motion to withdraw guilty plea without a hearing, applying the manifest injustice standard.”
{¶17} In the first assignment of error, Walker raises two arguments. The first is based on the supposition that his sentence is void because the trial court failed to specify that post-release control was a mandatory part of his sentence. Walker claims
{¶18} As an initial matter, Walker is incorrect in his assertion that his sentence was void. Walker‘s sentencing hearing was held on July 13, 2006. Prior to that date, significant amendments to Ohio‘s post-release control statutes went into effect.
{¶19} “For a felony of the third degree *** in the commission of which the offender caused or threatened physical harm to a person,” a three-year period of post-release control is mandatory.
{¶21} By amending
{¶22} As Walker was sentenced after July 11, 2006, his sentence was not rendered void by the trial court‘s imposition of discretionary, rather than mandatory, post-release control. Accordingly, the sentence was subject to correction pursuant to
{¶24} “Before a court holds a hearing pursuant to this division, the court shall provide notice of the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing, the prosecuting attorney of the county, and the department of rehabilitation and correction. The offender has the right to be physically present at the hearing, except that, upon the court‘s own motion or the motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the hearing by video conferencing equipment if available and compatible. An appearance by video conferencing equipment pursuant to this division has the same force and effect as if the offender were physically present at the hearing. At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of conviction.”
{¶25} Walker argues that he was not given prior notice of the hearing and, so, was deprived of the opportunity to object to the video teleconference, consult with his attorney, and prepare mitigating evidence before the hearing. The State contends that notice requirement was satisfied by notice being sent to Walker‘s defense attorney and/or Walker has waived all but plain error by failing to object to notice at the hearing. The State relies on State v. Arnold, 2nd Dist. No. 22856, 2009-Ohio-3636, which suggests that, where the offender appears in court, with counsel, for the express
{¶26} We reject the State‘s argument that notice provided to Walker‘s trial attorney fulfilled the statutory requirement. The statute specifically states that notice is to be provided to “the offender” and that it is “the offender” who has a right to be present and to make a statement regarding the correction. In the present case, moreover, it had been almost three years since Walker‘s defense counsel had appeared as his attorney. Walker‘s two Motions for Judicial Release and Motion to Withdraw Guilty Plea were all filed pro-se. Likewise, the court‘s orders denying these Motions were all served on Walker rather than his trial attorney. Finally, it is evident that Walker was unaware of the purpose of the hearing until it had begun.
{¶27} Although Walker was not given notice of the hearing as provided in
{¶28} Walker claims he was deprived of the opportunity to object to the video teleconference, consult with his attorney, and prepare mitigating evidence before the hearing. None of these claims demonstrate prejudice. Participation in the hearing by video conferencing is expressly provided for by the statute and Walker makes no argument that this was inappropriate in his particular case. The statute does not provide that Walker has a right to be represented by counsel or present mitigating evidence at the hearing. These arguments stem from Walker‘s erroneous supposition that he was entitled to a de novo sentencing hearing. As demonstrated above, a de
{¶29} In Walker‘s case, a period of post-release control was mandatory. The trial court had no discretion regarding its imposition, only the duty to order its imposition as part of Walker‘s sentence. Bloomer, 2009-Ohio-2462, at ¶72. Walker has raised no argument, at the hearing or on appeal, as to why
{¶30} Finally, under this assignment of error, Walker argues that trial counsel was constitutionally ineffective for failing to present mitigating evidence or make any argument for the reduction of his sentence at his de novo sentencing hearing. This argument fails for the reason that Walker was not entitled to, and did not receive, a de novo sentencing hearing. The only arguments counsel could have properly raised would have concerned the propriety of correcting Walker‘s sentence to include a term of mandatory post-release control. As no argument exists as to why it was not appropriate to impose post-release control, trial counsel was not deficient for failing to raise such an argument.
{¶31} The first assignment of error is without merit.
{¶32} Under the second assignment of error, Walker argues the trial court erred by applying the
{¶33} The second assignment of error is without merit.
{¶34} For the forgoing reasons, the Judgment of the Lake County Court of Common Pleas, imposing a term of post-release control as part of Walker‘s felony sentence, is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.