[Cite as State v. Graham, 2013-Ohio-218.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 5-12-02

        v.

NATHAN A. GRAHAM,                                       OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 1999 CR 25

             Judgment Reversed, Sentence Vacated and Cause Remanded

                           Date of Decision: January 28, 2013




APPEARANCES:

        Kristopher A. Haines for Appellant

        Mark C. Miller for Appellee
Case No. 5-12-02


SHAW, J.

       {¶1} Defendant-Appellant Nathan Graham (“Graham”) appeals the

judgment of the Court of Common Pleas of Hancock County imposing post-

release control.   Graham claims that the trial court erred by conducting the

resentencing hearing via videoconference, refusing to appoint counsel to represent

him during the resentencing hearing, and failing to conduct a de novo sentencing

hearing. For the reasons that follow, we reverse the trial court’s judgment.

       {¶2} On November 22, 2000, Graham was sentenced to a total prison term

of 55 years in prison after a jury found him guilty of one count of attempted

murder, one count of rape, three counts of felonious assault, one count of

kidnapping, and one count of having a weapon while under a disability. The trial

court did not mention post-release control at the sentencing hearing, however the

sentencing entry ordered that Graham serve “up to a maximum of five years” post-

release control. Graham’s conviction and sentence were affirmed in November of

2001. Since then, Graham has filed numerous actions with this court.

       {¶3} In 2011, Graham filed a motion challenging the imposition of post-

release control. Graham argues that because the trial court ordered him to serve

“up to” five years on community control, it erred in sentencing him.            A

videoconference without counsel was held. During this hearing, the trial court

modified its sentence and ordered that Graham serve five years on post-release


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control. This order was journalized on December 1, 2011. Graham appeals from

this sentence and raises the following assignments of error.

                            First Assignment of Error

         The trial court committed reversible error when it determined
         that [Graham] was entitled to a limited resentencing hearing for
         the purpose of properly imposing mandatory post-release
         control against [Graham], and failed to conduct a de novo
         resentencing hearing, in violation of [Graham’s] rights under
         the Fourteenth Amendment to the United States Constitution,
         and Section 16, Article I of the Ohio Constitution.

                           Second Assignment of Error

         The trial court committed reversible error when it conducted
         [Graham’s] December 1, 2011, resentencing hearing via video
         conference, without having first obtained a valid waiver of
         [Graham’s] right to be physically present during that hearing, in
         violation of [Graham’s] rights under the Fifth, Sixth, and
         Fourteenth Amendments to the United States Constitution, and
         Sections 10 and 16, Article I of the Ohio Constitution.

                            Third Assignment of Error

         The trial court committed reversible error when it denied
         [Graham’s] rights to due process and the assistance of counsel,
         in violation of [Graham’s rights under the Fifth, Sixth, and
         Fourteenth Amendments to the United States Constitution and
         Sections 10 and 16, Article I of the Ohio Constitution.

Due to the nature of the assignments of error, we elect to address them out of

order.

         {¶4} In his third assignment of error, Graham argues that the trial court

erred in denying him counsel for the resentencing hearing. Based upon this


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court’s prior holding in State v. Peace, 3d Dist. No. 5-12-04, 2012-Ohio-6118, we

agree. In Peace, this court held that resentencing to correct an error with post-

release control is a critical stage of the proceedings. As such, the defendant is

entitled to counsel at the hearing. “[W]e find that criminal defendants have the

right to counsel when trial courts conduct limited resentencing hearings for the

purpose of properly imposing [post-release] control.” Id. at ¶12. “A defendant is

entitled to counsel in such a critical stage, whether or not the lack of counsel

prejudices him.” Id. at 14.

       {¶5} Having found error in the third assignment of error, the first and

second assignments of error are rendered moot and we decline to address them.

See App.R. 12(A)(1)(c).

       {¶6} Having found prejudicial error as to Graham’s resentencing, we

reverse the judgment and remand for further proceedings.

                                             Judgment Reversed, Sentence Vacated
                                                           and Cause Remanded

ROGERS, J. concurs.

/jlr


WILLAMOWSKI, J.

       {¶7} I dissent from the majority. I would follow the reasoning of the

fourth, ninth, and eleventh districts and find that the resentencing was merely


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ministerial in nature. See State v. Davis, 4th Dist. No. 10CA9, 2011-Ohio-6776, ¶

1; State v. Walker, 11th Dist. No. 2009-L-170, 2011-Ohio-401, ¶ 28; and State v.

Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492, ¶ 29. Thus, there was no need

for Graham to be provided counsel. For this reason, I would affirm the judgment

of the trial court.




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