[Cite as State v. Edwards, 2011-Ohio-3472.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95976




                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 MALEIK EDWARDS
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-473528
      BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.

    RELEASED AND JOURNALIZED:                  July 14, 2011
ATTORNEY FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant,   Maleik     Edwards,   brings   the    instant   appeal

challenging the procedures used during his 2010 de novo resentencing

hearing. After a thorough review of the record and law, we affirm.

      {¶ 2} Appellant was arrested and charged with counts stemming from

the assault of a female on March 2, 2006. He pled guilty to one count of

felonious assault, a second degree felony, and one count of domestic violence,

a first degree misdemeanor.       He was sentenced on April 13, 2006 to an

aggregate prison term of five years and informed of a mandatory five-year

period of postrelease control. However, the appropriate mandatory period of
postrelease control for the second degree felony conviction in this case is three

years. R.C. 2967.28(B)(2).

      {¶ 3} The state sought to have appellant resentenced at a de novo

sentencing hearing to properly impose postrelease control. The trial court

held a hearing on October 7, 2010, 15 days prior to appellant’s stated release

date from prison. Appellant was given an opportunity to meet in private

with his attorney using the video conferencing equipment set up in the

courtroom.    Appellant specifically waived his physical presence in the

courtroom at the outset of the resentencing hearing. When asked if he would

like to address the court prior to the announcement of the sentence, appellant

stated, “I’m perfectly fine with what I was told by the attorney so I have

nothing really to say.”    The trial court then imposed appellant’s original

sentence with the exception of properly imposing a three-year term of

postrelease control.

      {¶ 4} Appellant then filed the instant appeal raising a single

assignment of error.

                              Law and Analysis

                              Right to Counsel

      {¶ 5} Appellant claims on appeal that “[t]he trial court erred by

conducting a de novo sentencing hearing by video conference for the purpose
of imposing postrelease control in violation of Article I, Section 10 of the Ohio

Constitution and Criminal Rule 43.”

      {¶ 6} Appellant appropriately points out that Article I, Section 10 of the

Ohio Constitution requires that a criminal defendant “[i]n any trial, in any

court, * * * be allowed to appear and defend in person and with counsel[.]”

Appellant also correctly reads this provision together with Crim.R. 43(A)(1),

which states that “the defendant must be physically present at every stage of

the criminal proceeding and trial, including the impaneling of the jury, the

return of the verdict, and the imposition of sentence, except as otherwise

provided by these rules[,]” to conclude that appellant must be given the

opportunity to appear at the resentencing hearing with counsel. However,

Crim.R. 43(A)(2) goes on to provide for appearance via video conference. It

states, “[n]otwithstanding the provisions of division (A)(1) of this rule, in * * *

felony cases where a waiver has been obtained in accordance with division

(A)(3) of this rule [a waiver in writing or on the record], the court may permit

the presence and participation of a defendant by remote contemporaneous

video for any proceeding if all of the following apply:

      {¶ 7} “(a) The court gives appropriate notice to all the parties;

      {¶ 8} “(b) The video arrangements allow the defendant to hear and see

the proceeding;
      {¶ 9} “(c) The video arrangements allow the defendant to speak, and to

be seen and heard by the court and all parties;

      {¶ 10} “(d)   The   court    makes   provision   to   allow   for    private

communication between the defendant and counsel. The court shall inform

the defendant on the record how to, at any time, communicate privately with

counsel.   Counsel shall be afforded the opportunity to speak to defendant

privately and in person.          Counsel shall be permitted to appear with

defendant at the remote location if requested.”

      {¶ 11} Appellant failed to raise any objection to his appearance via video

conference during the proceedings below or to the validity of his waiver of

personal appearance. Therefore, he has waived all but plain error. State v.

Reed, Franklin App. No. 09AP-1164, 2010-Ohio-5819, ¶13.

      {¶ 12} To constitute plain error, the error must be obvious on the record,

palpable, and fundamental, so that it should have been apparent to the trial

court without objection. See State v. Tichon (1995), 102 Ohio App.3d 758,

767, 658 N.E.2d 16.       Moreover, plain error does not exist unless the

appellant establishes that the outcome of the trial clearly would have been

different but for the trial court’s allegedly improper actions.           State v.

Waddell, 75 Ohio St.3d 163, 166, 1996-Ohio-100, 661 N.E.2d 1043. Notice of

plain error is to be taken with utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice. State v.

Phillips, 74 Ohio St.3d 72, 83, 1995-Ohio-171, 656 N.E.2d 643.

      {¶ 13} In the present case, appellant was given the opportunity to speak

privately with counsel prior to the start of the hearing. Appellant complains

that this consultation was not private because it took place in the courtroom,

where anyone could walk in at any time. However, there is no evidence that

traffic through the courtroom compromised appellant’s ability to consult with

his attorney.   The record indicates that appellant was satisfied with the

information relayed by his attorney. This also indicates that appellant was

given the opportunity to speak with counsel, and appellant had no objection

to the privacy afforded.

      {¶ 14} Although the record is devoid of any explanation by the trial court

informing appellant that he could speak privately with counsel at any time,

this lapse must still be analyzed through the rubric of harmless error. See

State v. McCollins, Cuyahoga App. No. 95486, 2011-Ohio-2398, ¶7, citing

State v. Williams (1983), 6 Ohio St.3d 281, 452 N.E.2d 1323 (“the defendant’s

absence in violation of Crim.R. 43(A), although improper, can constitute

harmless error where he suffers no prejudice.”).

      {¶ 15} Appellant argues that he was prejudiced by the waiver of his

right to appear in person because the state could not have procured his

presence to resentence him before he finished serving his prison term.
Appellant provides no evidence that the state could not have secured his

presence within 15 days. Further, appellant was afforded the opportunity to

speak with his attorney in private and indicated he was satisfied with that

opportunity. He received the same sentence, with the addition of a shorter

but required period of postrelease control. Appellant has failed to show any

prejudice that resulted from his waiver of appearance in person at his

resentencing hearing.

      {¶ 16} Appellant’s rights were adequately protected by counsel at the

resentencing hearing, and appellant never requested that counsel appear

with him at the institution where he was incarcerated. The error raised by

appellant involving a lack of notice of his ability to consult with counsel at

any time was harmless error. Therefore, appellant’s assignment of error is

overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant 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

common pleas court 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.
FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
