[Cite as State v. Brown, 2015-Ohio-3912.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 26320
                                                  :
 v.                                               :   T.C. NO. 05CR2813
                                                  :
 JEFFREY A. BROWN                                 :   (Criminal appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

               Rendered on the ___25th__ day of ___September_____, 2015.

                                             ...........

ANDREW T. FRENCH, Atty, Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, Talbott Tower, Suite 1210, 131 N.
Ludlow Street, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Jeffrey A. Brown appeals the trial court’s imposition of

a five-year term of post-release control (PRC) at a resentencing hearing held on July 11,

2014. An amended judgment entry of conviction containing the correct PRC term was
                                                                                        -2-


issued on July 15, 2014. On July 21, 2014, the trial court issued an “Order and Entry

Memorializing Correction of Verbal Post Release Control Advisement.” Brown filed a

timely notice of appeal with this Court on July 22, 2014.

      {¶ 2} We set forth the history of the case in State v. Brown, 2d Dist. Montgomery

No. 25653, 2014-Ohio-2551 (hereinafter “Brown I”), and repeat it herein in pertinent part:

             The underlying case began in August 2005 when a three-count

      indictment was returned against Brown. Four months later, a grand jury

      issued a new seven-count indictment regarding the same underlying facts,

      and the original indictment was dismissed.            However, while both

      indictments were pending, Brown moved to dismiss all charges, alleging a

      speedy-trial violation.   In February 2006, the trial court overruled the

      motion, and a jury trial commenced.

             Ultimately, Brown was convicted of two felonious assaults,

      aggravated burglary, possessing weapons while under a disability, and

      three firearm specifications. After a separate sentencing hearing, the trial

      court imposed an aggregate prison term of nineteen years. During the

      hearing, the trial court expressly advised Brown that once he completed the

      prison term he would be subject to supervision by the parole board under a

      term of post-release control. The trial court did not orally state the duration

      of his post-release control. In its final sentencing entry of March 9, 2006,

      though, the trial court correctly stated that the duration of post-release

      control would be five years.

             Brown pursued a direct appeal. In State v. Brown, 2d Dist.
                                                                                      -3-


Montgomery No. 21540, 2007-Ohio-2098, this court upheld the conviction

and sentence. Thereafter, Brown filed two post-judgment submissions with

the trial court over the ensuing four years: a petition for post-conviction relief

and a motion for reconsideration. In both submissions, he essentially

attempted to re-argue the merits of a speedy-trial issue that had been

resolved on direct appeal. As part of the motion to reconsider, he asserted

that the trial court's decision on his motion to dismiss could be reviewed

again because no proper final judgment had been rendered. In support, he

contended that the March 9, 2006 sentencing entry was not final because it

failed to recite the manner of conviction. In relation to each submission, this

court affirmed the trial court’s denial of relief. See State v. Brown, 2d Dist.

Montgomery No. 22645, 2009-Ohio-1274; State v. Brown, 2d Dist.

Montgomery No. 24906, 2012-Ohio-2793.                In the latter opinion, we

specifically held that the trial court's speedy-trial determination was not

subject to further consideration because the March 9, 2006 sentencing entry

was a final appealable order.

       On May 3, 2012, Brown filed a third post-judgment submission before

the trial court. Therein, he sought either vacation of the March 9, 2006

sentencing entry or correction of a clerical error in the entry. In support of

both prongs of the motion, he contended that, by failing to inform him of the

duration of post-release control at sentencing, the trial court did not satisfy

the “notice” requirements under R.C. 2929.19(B)(3). According to Brown,

this had the effect of rendering his entire sentence illegal; thus, the trial court
                                                                                         -4-


       was obligated either to declare the sentencing entry void or to correct the

       “error” in the entry by deleting the five-year term of post-release control.

Id., ¶s 2-5.

       {¶ 3} In Brown I, we found that the trial court erred by not orally informing Brown

at his original sentencing that he was subject to five years of PRC. Id. at ¶ 16. We further

found that “[c]ontrary to Brown’s argument below and on appeal, however, his entire

judgment entry of conviction and sentence is not void[;] *** only the post-release control

portion of his sentence is void.” Id. at ¶ 21. Accordingly, we found that Brown “was only

entitled to a limited re-sentencing to correct the imposition of [PRC],” and we remanded

the case to the trial court for that purpose. Id.

       {¶ 4} Thereafter, on July 11, 2014, the trial court held a resentencing hearing in

order to correct Brown’s PRC term.            Brown appeared at the hearing via video

conferencing from the London Correctional Institution.          Brown objected to not being

physically present at the resentencing hearing, but the trial court overruled his objection.

The trial court then verbally advised him of his mandatory term of five years of PRC. As

previously mentioned, the trial court issued an amended termination entry on July 15,

2014. Shortly thereafter on July 21, 2014, the trial court issued an entry in which it noted

that Brown had been verbally advised of his five-year PRC term.

       {¶ 5} It is from this judgment that Brown now appeals.

       {¶ 6} Brown’s first assignment of error is as follows:

       {¶ 7} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED APPELLANT’S REQUEST TO BE CONVEYED FOR THE RESENTENCING

HEARING AND WHEN IT OVERRULED APPELLANT’S OBJECTION TO THE
                                                                                        -5-


HEARING      PROCEEDING         WITH     APPELLANT       PARTICIPATING        VIA    VIDEO

CONFERENCE.”

       {¶ 8} In his first assignment, Brown contends that the trial court erred in

resentencing him via video conferencing and refusing to allow him to be physically

present at the hearing pursuant to Crim.R. 43.

       {¶ 9} Brown is subject to the sentencing correction procedures set forth in R.C.

2929.191. These provisions establish a procedure to remedy a sentence that fails to

properly impose a term of postrelease control. The court must hold a hearing before

issuing a corrected sentencing entry. In pertinent part, R.C. 2929.191(C) provides as

follows:

              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. * * *

       {¶ 10} A criminal defendant has a fundamental right to be present at all critical

stages of his criminal trial. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892

N.E.2d 864, ¶ 100; Sixth and Fourteenth Amendments to the United States Constitution;
                                                                                           -6-


Ohio Constitution, Article I, Section 10. “However, a criminal defendant’s absence does

not necessarily result in prejudicial or constitutional error.” State v. Davis, 116 Ohio St.3d

404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 90. The presence of a defendant is a condition of

due process to the extent that a fair and just hearing would be thwarted by his absence.

Id. at ¶ 90; Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674

(1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 2, 84 S.Ct. 1489, 12

L.Ed.2d 653 (1964), fn. 1. Therefore, a defendant’s absence in violation of Crim.R. 43(A)

can constitute harmless error where he suffered no prejudice, even though such absence

was improper. State v. Morton, 10th Dist. Franklin No. 10AP-562, 2011-Ohio-1488, ¶ 18;

State v. Morris, 10th Dist. Franklin No. 10AP-512, 2011-Ohio-5484, ¶ 15.

       {¶ 11} In State v. Al-Mosawi, 2d Dist. Montgomery No. 24633, 2012-Ohio-3385,

we found that any error in regard to the defendant’s physical presence at the hearing was

clearly harmless. Id. at ¶ 19. Specifically, we noted that the defendant’s five-year term

of PRC ordered by the court was mandatory, and he spoke with his attorney privately

before the court went on the record to re-impose PRC. We also noted that the defendant

did not ask to speak with counsel again in response to anything that transpired at the

hearing.   Furthermore, trial counsel addressed the court on the defendant’s behalf

regarding sentencing, and the defendant was also allowed to address the court.

Accordingly, we found that the defendant was not prejudiced by the trial court’s decision

to resentence him via video conferencing. See also State v. Jones, 2d Dist. Greene No.

2012 CA 8, 2012-Ohio-4446 (holding that the defendant was not denied his constitutional

rights, including the effective assistance of counsel, when he was resentenced to post-

release control via video conferencing).
                                                                                           -7-


       {¶ 12} In the instant case, we find that no prejudice resulted from the trial court’s

decision to conduct the resentencing hearing with Brown via video conferencing.

Brown’s PRC term of five years was mandatory. Brown’s attorney was in the courtroom

during the hearing, while Brown was present via video conferencing. Moreover, the

record establishes that both before and during the hearing, Brown was afforded the

opportunity to speak with his attorney privately. Specifically, during the hearing, Brown

requested permission to consult with his attorney privately. Thereafter, the trial court

took a recess, cleared the courtroom, and permitted Brown to speak with his attorney in

private.   At no point did Brown give any indication that he was unable to hear or

understand the proceedings.        Nothing in the record indicates that any additional

information could have been submitted on Brown’s behalf or that his physical presence

at the hearing would have affected the outcome of the hearing.

       {¶ 13} Brown’s first assignment of error is overruled.

       Supplemental Assignments of Error

       {¶ 14} After filing his initial appellate brief with this Court, we granted Brown leave

to supplement his brief in an order issued on March 20, 2015. Brown subsequently filed

his supplemental brief on April 17, 2015, containing the following two additional

assignments of error.

       {¶ 15} Brown’s first supplemental assignment of error is as follows:

       {¶ 16} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS

TERMINATION ENTRY, FILED ON MARCH 9, 2006; SAID ENTRY VIOLATED BOTH

OHIO AND FEDERAL CRIMINAL RULE 43(A), AS THE FIVE-YEAR PERIOD OF POST-

RELEASE CONTROL REFLECTED IN THE ENTRY WAS NOT PRONOUNCED IN THE
                                                                                           -8-


PRESENCE OF APPELLANT AT HIS ORIGINAL SENTENCING.”

       {¶ 17} In his first supplemental assignment, Brown argues that his original

termination entry issued on March 9, 2006, was void and not a final appealable order

because the trial court failed to properly advise of the length of his mandatory PRC. As

previously stated, however, this very issue was addressed and resolved by this Court in

Brown I, wherein we found that “[c]ontrary to Brown’s argument below and on appeal,

however, his entire judgment entry of conviction and sentence is not void[;] *** only the

post-release control portion of his sentence is void.” Id. at ¶ 21.

       {¶ 18} The principle of “[r]es judicata may be applied to bar further litigation of

issues that were raised previously or could have been raised previously in an appeal.”

State v. Houston, 73 Ohio St.3d 346, 347, 652 N.E.2d 1018 (1995), citing State v. Perry,

10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Since we have already determined that only

the PRC portion of Brown’s original termination entry was void in Brown I, his first

supplemental assignment of error is barred by res judicata, and therefore without merit.

       {¶ 19} Brown’s first supplemental assignment of error is overruled.

       {¶ 20} Brown’s second supplemental assignment of error is as follows:

       {¶ 21} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

IMPOSED POST-RELEASE CONTROL WITHOUT CONDUCTING A DE NOVO

SENTENCING HEARING MANDATED BY DECISIONS OF THE OHIO SUPREME

COURT, AND THEREBY VIOLATING APPELLANT’S STATE AND FEDERAL RIGHTS

TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW.”

       {¶ 22} In his second supplemental assignment, Brown reiterates his argument that

the trial court erred by limiting his resentencing hearing to the correction of the imposition
                                                                                         -9-


of his mandatory PRC and failing to conduct a de novo sentencing hearing.

       {¶ 23} However, Brown’s resentencing hearing was for the limited purpose of

correcting a defect in the imposition of post-release control. It is well established that

when a trial court errs in imposing a term of post-release control at sentencing, “that part

of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 26. “[O]nly the offending portion of the sentence is subject

to review and correction.” Id. at ¶ 27. Where post-release control has been improperly

imposed, res judicata applies to all other aspects of the conviction and sentence, including

the determination of guilt and the lawful elements of the sentence. Id. at ¶ 34. See also

State v. Wilson, 2d Dist. Montgomery Nos. 24461, 24496, 24501, 2012-Ohio-1660, ¶ 19.

The case upon which Brown relies, State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, 920 N.E.2d 958, was overruled by Fischer. Thus, no issues other than post-

release control were subject to review by the trial court at Brown’s resentencing hearing,

and the trial court correctly limited the resentencing to this aspect of disposition and was

not required to conduct a de novo hearing in all other respects.

       {¶ 24} Brown’s second supplemental assignment of error is overruled.

       {¶ 25} All of Brown’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                       ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Andrew T. French
Jeffrey T. Gramza
Hon. Mary L. Wiseman
