[Cite as State v. Davis, 2011-Ohio-6776.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                        :    Case No. 10CA9
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
GEOFFREY A. DAVIS,                    :    RELEASED 12/19/11
                                      :
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

John A. Bay, BAY LAW OFFICE, L.L.C., Columbus, Ohio, for appellant.

James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn,
Washington County Assistant Prosecutor, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}     In this opinion we reconsider our prior holding that the trial court did not

deny Geoffrey Davis his right to counsel at a critical stage of the proceedings. After a

thorough review of the record and briefs, we conclude that our prior decision reaches

the correct result. Specifically, we conclude that the resentencing hearing under R.C.

2929.191 was purely ministerial in nature because the court was limited to imposing a

statutorily required term of postrelease control. Thus the hearing did not constitute a

critical stage and Davis had no right to privately consult with counsel prior to the

hearing.

        {¶2}     In 2004, a grand jury indicted Davis on one count of felonious assault and

one count of abduction. After a jury found him guilty of these crimes in 2005, the trial

court sentenced him to concurrent terms of imprisonment. In his first direct appeal, we

rejected his claim that his conviction for felonious assault was against the manifest
Washington App. No. 10CA9                                                                 2


weight of the evidence. However, we agreed that his sentencing was unconstitutional in

light of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 and ordered

that he be resentenced. See State v. Davis, Washington App. No. 05CA50, 2006-Ohio-

3549 (Davis I).

       {¶3}   In 2006, the trial court conducted the resentencing hearing and imposed

the same sentence it had previously issued, i.e., seven and four years to be served

concurrently. Davis appealed from this judgment entry, claiming that the imposition of

“non-minimum” sentences violated certain rights under the constitution. We rejected

these arguments and affirmed the trial court’s judgment. See State v. Davis,

Washington App. No. 06CA39, 2007-Ohio-1281 (Davis II).

       {¶4}   In 2009, Davis filed a motion for resentencing because the judgment entry

of conviction from the resentencing failed to state that postrelease control was

“mandatory.” The judgment entry stated that “a post release control period of three (3)

years may be imposed by the Parole Board.” (Emphasis added). Thus the entry

indicated postrelease control was discretionary when Davis’ convictions required

mandatory postrelease control. Accordingly, the trial court scheduled another

resentencing hearing. At this hearing, the trial court imposed the same sentence and

later issued a nearly identical judgment entry to that used in the first resentencing.

However, this entry stated that postrelease control was mandatory.

       {¶5}   Davis appealed from this judgment entry. After reviewing the record, his

appointed counsel informed this Court that she could discern no meritorious claims for

appeal. Accordingly, under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396,

18 L.Ed.2d 493, counsel moved to withdraw and presented us with two potential
Washington App. No. 10CA9                                                                   3


assignments of error. Appointed counsel suggested that: 1.) the court should have

conducted a de novo sentencing hearing because its failure to include the word

“mandatory” in the first resentencing entry rendered that sentence void; and 2.) the

court prejudiced Davis by refusing his request to privately confer with his attorney at the

beginning of the second resentencing hearing. Davis also filed a pro se brief presenting

additional proposed assignments of error. After reviewing the briefs and conducting an

independent review of the record, we found the appeal wholly frivolous, granted

appointed counsel’s motion to withdraw, and affirmed the trial court’s judgment. See

State v. Davis, Washington App. No. 10CA9, 2010-Ohio-5294 (Davis III).

       {¶6}   Subsequently, Davis filed a belated motion for reconsideration. Although

we rejected the grounds Davis set forth in his motion, we sua sponte granted

reconsideration “on the question of whether Davis was denied the right to counsel.” We

identified two nonfrivolous questions and appointed Davis new counsel to address those

issues on their merits:

       1. Whether a resentencing hearing held pursuant to R.C. 2929.191, i.e. a
       hearing to impose statutorily required postrelease control that was omitted
       from an earlier sentence, is a “critical stage” of the trial process at which
       the right to counsel attaches under Article I, Section 10 of the Ohio
       Constitution and the 6th Amendment to the United States Constitution?

       2. If such a hearing is a critical stage, whether the denial of the right to
       privately consult with counsel at the beginning of this hearing amounted to
       a denial, or constructive denial, of the right to counsel.

       {¶7}   In his brief, Davis contends that a R.C. 2929.191 hearing is a critical stage

of the trial process to which the right to counsel attaches. As we explained in Davis III

at ¶¶22-25:

              The Sixth Amendment to the United States Constitution, made
       applicable to the States through the Fourteenth Amendment, guarantees
Washington App. No. 10CA9                                                                  4


      that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to
      have the Assistance of Counsel for his defence.” Amendment VI, United
      States Constitution. Similarly, but distinctly, the Ohio Constitution
      provides that “[i]n any trial, in any court, the party accused shall be
      allowed to appear and defend in person and with counsel * * *.” Section
      10, Article I, Ohio Constitution. When charged with a serious offense,
      once judicial proceedings have commenced against an accused, the right
      to counsel attaches to all “critical stages” of the proceedings. See Crim.R.
      44(A). Normally, sentencing is a “critical stage.” Gardner v. Florida
      (1977), 430 U.S. 349, 358, 97 S.Ct. 1197.

               Under the Ohio Constitution, the accused’s right to counsel
      impliedly includes the right to consult privately with his or her attorney.
      State v. Milligan (1988), 40 Ohio St.3d 341, 342, 533 N.E.2d 724. Under
      the federal Constitution, a denial of a right to confer with counsel during a
      critical stage of the proceeding may violate the Due Process clause of the
      Fourteenth Amendment. Hawk v. Olson (1945), 326 U.S. 271, 278, 66
      S.Ct. 116.

                                            ***

              A “critical stage” only exists in situations where there is a potential
      risk of substantial prejudice to a defendant’s rights and counsel is required
      to avoid that result; in other words, counsel must be present “where
      counsel’s absence might derogate from the accused’s right to a fair trial.”
      United States v. Wade (1967), 388 U.S. 218, 226, 87 S.Ct. 1926. * * *

      {¶8}   In Davis III we initially analyzed whether the second resentencing hearing

constituted a de novo sentencing hearing or a R.C. 2929.191 hearing. We explained

that for sentences imposed on and after July 11, 2006 (the effective date of the statute),

R.C. 2929.191 applied and the resentencing hearing under the statute was limited to the

proper imposition of postrelease control. See Davis III at ¶¶31, 33. For sentences

imposed prior to July 11, 2006, common law rules apply. Under the common law as it

stood at the time we decided Davis III, the failure to properly impose postrelease control

rendered the entire sentence void, not just the imposition of postrelease control. See id.

at ¶31. Thus, defendants were entitled to a de novo sentencing hearing, which

constitutes a critical stage of the proceedings. See id. at ¶25. After we released Davis
Washington App. No. 10CA9                                                                  5

III, the Supreme Court of Ohio modified the common law in State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. The Fischer Court held that when a trial

court fails to properly impose postrelease control, only that portion of the sentence is

void, thus resentencing is limited to the issue of postrelease control. See Fischer at

¶¶28-29. In other words, under current law, regardless of whether the common law or

R.C. 2929.191 applies, merely lacking notice of postrelease control never entitles a

criminal defendant to a de novo sentencing hearing.

       {¶9}   Because Davis’ first resentencing hearing occurred after the effective date

of R.C. 2929.191, we found that the statute applied, not the common law. Id. at ¶32.

Davis contends that “R.C. 2929.191 resentencing hearings create many of the same

imbalances and dangers the Framers sought to avoid by enacting the Sixth

Amendment. Defendants are forced to confront a prosecutor who is trained in the law,

familiar with court procedures, and who handles these types of cases on a daily basis.”

(Appellant’s Br. 4). He also argues that postrelease control is a “significant part of a

criminal sentence,” and he elaborates on powers the Adult Parole Authority has in

relation to postrelease control. (Appellant’s Br. 4). The State, without any citation to

authority, concedes that the R.C. 2929.191 hearing constituted a critical stage of the

proceedings. We disagree.

       {¶10} Undoubtedly, the imposition of postrelease control has serious

consequences. Just as clearly, the State had the benefit of counsel for the R.C.

2929.191 hearing. Nonetheless, the trial court had no discretion on whether to impose

postrelease control at the hearing. As we explained in Davis III, “the court was limited

to adding the words ‘mandatory’ to the imposition of post-release control, which it was
Washington App. No. 10CA9                                                                               6


required to do in the first place, i.e., the court did not have the authority to make any

other substantive changes to the already-imposed sentence.” Davis III at ¶33. Thus,

we agree with our initial conclusion in Davis III that Davis did not face a substantial risk

of prejudice at the hearing. Id. The R.C. 2929.191 hearing was purely ministerial in

nature, so the hearing did not constitute a critical stage of the proceedings, and Davis

had no right to counsel at it. Id. at ¶2.

       {¶11} Davis vaguely claims that “[o]nly by providing for the assistance of counsel

will this Court ensure the petitioner a meaningful opportunity to assert claims and

constitutional challenges to the application of R.C. 2929.191.” (Appellant’s Br. 4).

However, he makes no effort to explain what purported constitutional challenge he

would raise. Thus, we reject this argument.

       {¶12} In addition, Davis contends that the “Ohio District Courts of Appeal who

have considered this issue have unanimously concurred that a resentencing hearing is

a critical stage of a criminal proceeding.” (Appellant’s Br. 5). Davis cites State v.

Morton, Franklin App. No. 10AP-562, 2011-Ohio-1488; State v. Steimle, Cuyahoga App.

No. 95076, 2011-Ohio-1071; and State v. Reed, Franklin App. No. 09AP-1164, 2010-

Ohio-5819 to support his position. However, these authorities are not persuasive for the

reasons we discuss below.

       {¶13} Morton involved a R.C. 2929.191(C) hearing.1 The appellant complained

that the trial court violated his right to be present at a critical stage of the proceedings by

conducting the hearing via videoconference instead of with his physical presence in the


1
  Although the Morton Court does not mention this issue, according to the decision, the trial court
“resentenced appellant to the same sentence as originally ordered” and imposed postrelease control at
this hearing. Morton at ¶19. However, a true R.C. 2929.191(C) hearing would be limited to the proper
imposition of postrelease control. See Davis III at ¶33.
Washington App. No. 10CA9                                                                    7

courtroom. See Morton at ¶¶17-18. The court rejected his argument, focusing primarily

on the lack of prejudice to the appellant. See Morton at ¶19. There is no indication that

the parties disagreed as to whether the hearing constituted a critical stage of the

proceedings, and the court did not explicitly hold that the hearing was a critical stage.

Even if the decision could be read to imply the court reached such a conclusion,

because the court did not provide any analysis on this point we find Morton unhelpful in

resolving this matter.

       {¶14} Reed also involved an appellant who complained that the court conducted

a resentencing hearing via videoconference. The Reed Court also rejected the

appellant’s contention that he had a right to be physically present at the hearing by

focusing on the lack of prejudice. Reed, supra, at ¶14. As in Morton, there is no

indication that the parties disagreed about whether the hearing constituted a critical

stage, and the Reed court did not explicitly hold that the hearing was a critical stage.

Even if the decision could be read to imply the court reached such a conclusion, as in

Morton, the court provided no analysis on this point. Moreover, we find Reed even less

relevant to this case than Morton because it involved a pre-Fischer de novo sentencing

hearing. See id. at ¶4. Thus, unlike the trial court in this case, the trial court in Reed

conducted a full resentencing hearing, which would constitute a critical stage of the

proceedings, and was not limited to properly imposing postrelease control. See Davis

III, supra, at ¶25. Therefore, we also find Reed unhelpful.

       {¶15} Steimle also dealt with an appellant who complained that the court

conducted a resentencing hearing to properly impose postrelease control via

videoconference. The court made no specific finding about whether the hearing
Washington App. No. 10CA9                                                                 8


constituted a critical stage. Instead the court rejected the appellant’s physical presence

argument using the harmless error doctrine, finding he suffered no prejudice from the

court’s decision to use videoconferencing. Steimle, supra, at ¶17.

       {¶16} Moreover, the court noted that the case might be controlled by Fischer, in

which case the defendant would not have to physically appear for resentencing.

Steimle at ¶¶16, 19. In Fischer – which again, involved common law resentencing – the

Supreme Court stated:

       R.C. 2953.08(G)(2)(b) permits an appellate court, upon finding that a
       sentence is clearly and convincingly contrary to law, to remand for
       resentencing. But a remand is just one arrow in the quiver. R.C.
       2953.08(G)(2) also provides that an appellate court may “increase, reduce
       or otherwise modify a sentence * * * or may vacate the sentence and
       remand the matter to the sentencing court for resentencing.” (Emphasis
       added.) Correcting a defect in a sentence without a remand is an option
       that has been used in Ohio and elsewhere for years in cases in which the
       original sentencing court, as here, had no sentencing discretion.

              Correcting the defect without remanding for resentencing can
       provide an equitable, economical, and efficient remedy for a void
       sentence. Here, we adopt that remedy in one narrow area: in cases in
       which a trial judge does not impose postrelease control in accordance with
       statutorily mandated terms.

Fischer at ¶¶29-30 (internal citations omitted). Thus Fischer indicates that under the

common law when a sentence does not properly include postrelease control, a hearing

is not required for the defendant to obtain a corrected sentence. Surely if it were a

critical stage, a hearing would be necessary under the common law.

       {¶17} R.C. 2929.191 explicitly requires a hearing to correct the improper

imposition of postrelease control in sentences handed down on or after July 11, 2006.

But the fact that a hearing is not required under the common law bolsters our conclusion

that the R.C. 2929.191 hearing does not constitute a critical proceeding because of its
Washington App. No. 10CA9                                                                   9


purely ministerial nature.

       {¶18} In addition, in State v. Griffis, Muskingum App. No. CT2010–57, 2011-

Ohio-2955, the Fifth District recently addressed an appellant’s argument that he was

entitled to counsel at a post-Fischer common law resentencing hearing. The court

found that the hearing did not constitute a critical stage of the proceedings, in part, citing

with approval our decision in Davis III. The court explained:

              In the case at bar, appellant was convicted after a jury trial.
       Appellant was represented by counsel at his original sentencing hearing in
       2001. Appellant was subject to a mandatory period of post release
       control. Both the mandatory nature and the length of appellant’s post
       release control are governed by statute. Accordingly, no discretion was
       involved in the trial court’s * * * re-sentencing hearing concerning
       appellant’s post release control obligation.

              * * * [A]ppellant could not raise new issues, or issues he had
       previously raised on his direct appeal.

              “Consequently, the sentencing hearing was ... not a de novo
       hearing but a ministerial act to create a new journal entry with the addition
       of the corrected language noting that post-release control was
       mandatory.” [Davis III] at ¶32.

              In the case at bar appellant did not face a substantial risk of
       prejudice because the court was limited to informing him in person
       concerning the imposition of five years mandatory post-release control
       and adding the words “mandatory” to the imposition of post release control
       as set forth in its Judgment Entry, which it was required to do in the first
       place, i.e., the court did not have the authority to make any other
       substantive changes to the already-imposed sentence.

              Traditional notions of fair play and substantial justice were not
       offended. Appellant cannot point with any specificity to any prejudice he
       suffered as a result of not having counsel to represent him during the * * *
       re-sentencing hearing.

Griffis at ¶¶29-33 (internal citations omitted).

       {¶19} The decision in Griffis also reinforces our conclusion that we reached the

correct result in Davis III. Accordingly, we affirm the trial court’s judgment based on the
Washington App. No. 10CA9                   10

reasoning in Davis III.

                            JUDGMENT AFFIRMED.
Washington App. No. 10CA9                                                                   11


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & McFarland, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ____________________________
                                                William H. Harsha, Presiding Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
