[Cite as State v. Weems, 2011-Ohio-3589.]

                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 95977



                                     STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       BRIAN WEEMS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-474343

        BEFORE: Stewart, P.J., Celebrezze, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                    July 21, 2011
ATTORNEY FOR APPELLANT

Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       The court conducted a de novo resentencing of defendant-appellant, Brian Weems,

by video conference just days before his scheduled release from prison for the purpose of

imposing a term of postrelease control. On appeal, Weems argues that his right to

counsel was violated because the video conferencing format employed by the court

prohibited him from meeting in private with his attorney, in violation of Crim.R.

43(A)(2)(d).   Noting that a new sentencing hearing for the purposes of imposing

postrelease control is no longer possible given his release from prison, he asks that his

term of postrelease control be vacated.

       Crim.R. 43(A)(1) ensures a defendant’s right to be physically present at every

stage of a criminal proceeding. Nevertheless, a defendant can waive the right to be
present in the courtroom and may participate in the proceedings “by remote

contemporaneous video” upon certain conditions.             See Crim.R. 43(A)(2)(d). As

applicable here, these conditions include providing “private communication between the

defendant and counsel.” Id.

       When the court convened for resentencing, Weems appeared by video link from

prison; defense counsel and the assistant prosecuting attorney were in the courtroom with

the judge.   Weems expressed some initial concern over the appointment of defense

counsel and voiced a desire to be present in the courtroom. The court told Weems that it

would allow him to converse with defense counsel and decide whether he should waive

his right to be physically present for resentencing. It stated: “[w]e’ll all step out of the

room, you’ll have your privacy and [defense counsel] can answer any of the questions you

need.” Weems spoke off-the-record with defense counsel and then agreed to waive his

physical presence in the courtroom. The court resentenced Weems to the same prison

term that had been previously imposed along with a mandatory three-year term of

postrelease control.

       Weems argues that despite waiving his right to be physically present in the

courtroom, the court failed to afford him an opportunity to speak in private with defense

counsel. He maintains that the video conferencing system is located in the courtroom

and that while the judge might have left the courtroom to allow a defendant and counsel

to speak, “this type of setting is not private” because of the large amount of foot-traffic in
a typical courtroom, including attorneys, deputies, and other court personnel who

typically move through the courtroom.

      Weems may not challenge the video conference on appeal because he expressly

agreed to participate in that format.         State v. Steimle, 8th Dist. No. 95076,

2011-Ohio-1071, ¶17. He acknowledges his waiver, but argues that plain error exists

with the failure to provide him complete privacy.

      Nowhere in Weems’s argument is the claim that he actually lacked privacy in the

course of his conversation with defense counsel. The record does not show that anyone

else was actually present in the courtroom when Weems discussed waiving his physical

presence with defense counsel. Even if we were to credit Weems’s assertion that people

were moving in and out of the courtroom at the time he spoke with defense counsel, that

fact alone would not suggest that he lacked the necessary privacy to confer with counsel.

The Crim.R. 43(A) guarantee of “privacy” does not require a one-to-one conversation

with counsel, alone in a secured room. Private conversations frequently occur when

others are present but not listening, whether in the courtroom, the court hallways, or even

at the sidebar, because there might not be any other logistically possible alternatives. As

long as the contents of the conversation stay between a defendant and defense counsel,

the privacy guarantee contained in Crim.R. 43(A) is satisfied.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. Case remanded

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR
