[Cite as State v. Elmore, 2017-Ohio-925.]



                           STATE OF OHIO, JEFFERSON COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )            CASE NO. 16 JE 0013
VS.                                              )
                                                 )                  OPINION
ANTHONY Q. ELMORE, aka                           )
CADILLAC                                         )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from the Court of
                                                 Common Pleas of Jefferson County,
                                                 Ohio
                                                 Case No. 13 CR 209 B

JUDGMENT:                                        Affirmed.

APPEARANCES:
For Plaintiff-Appellee                           Attorney Jane Hanlin
                                                 Jefferson County Prosecutor
                                                 16001 State Route 7
                                                 Steubenville, Ohio 43952

For Defendant-Appellant                          Attorney Aaron Richardson
                                                 4110 Sunset Boulevard
                                                 Steubenville, Ohio 43952

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                 Dated: March 13, 2017
[Cite as State v. Elmore, 2017-Ohio-925.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Anthony Q. Elmore, aka Cadillac, appeals the trial
court's judgment resentencing him pursuant to a remand order from this court
regarding consecutive sentence findings. Elmore argues his felonious assault and
having weapons under disability should have merged, and that the trial court erred by
holding the resentencing by telephone and not in his physical presence, allegedly in
violation of Crim.R. 43(A). As Elmore's assignments of error are meritless, the
judgment of the trial court is affirmed.
                                 Facts and Procedural History
        {¶2}     Following a jury trial Elmore was found guilty of one count of felonious
assault, a second-degree felony, with an attached firearm specification, and one
count of weapons under disability, a third-degree felony. State v. Elmore, 2016-Ohio-
890, 60 N.E.3d 794, ¶19 (7th Dist.) ("Elmore I").
        {¶3}     These convictions stemmed from an ambush-style attack on Torrance
Lyda. Elmore and a co-defendant tracked down Lyda while he was walking with a
group of juvenile males, planning to shoot at the group. Id. at ¶ 34. Elmore admitted
to a detective that he and his co-defendant had planned to hide, wait for the group to
pass, count to five and begin shooting. Id. at ¶ 16. Ultimately, an exchange of gunfire
took place, with both Elmore and the co-defendant firing weapons. Id. Elmore
testified at trial that he had fired the weapon and then abandoned the firearm in the
woods. Id. at ¶ 16. He also admitted he had immediately started looking for another
gun after the incident. Id. at ¶ 16, 34.
        {¶4}     Following a hearing, the trial court sentenced Elmore to eight years for
the felonious assault count, three years on the firearm specification and three years
on the weapons under disability count, to be served consecutively for a 14 year
aggregate prison term. Id. at ¶ 20.
        {¶5}     Elmore filed a direct appeal with this court, alleging that his felonious
assault conviction was against the manifest weight of the evidence, and that the 14
year sentence imposed by the trial court was erroneous. With respect to the
sentencing assignment of error, Elmore argued that consecutive sentences were
                                                                                 -2-


improper and that the maximum sentence was an abuse of discretion. He did not
make a merger argument. Elmore I at ¶ 36-61.
       {¶6}     We held Elmore's conviction was not against the manifest weight of the
evidence, and that the trial court's imposition of a maximum sentence was proper,
however, we reversed and remanded for resentencing to correct a consecutive
sentencing error. Id. at ¶ 35; 56.

                [T]he trial court did make findings which comport with both
       subpart (a) and (c), which are two of the three options which comprise
       the third statutory finding. Specifically, the trial court found that Elmore
       was under post-release control when he committed the offenses. See
       R.C. 2929.14(C)(4)(a). The trial court's finding that Elmore's criminal
       record was “repeated and long” and that it took place in a residential
       neighborhood, around juveniles, and was part of an organized criminal
       activity could constitute a finding that the “offender's history of criminal
       conduct demonstrates that consecutive sentences are necessary to
       protect    the   public from future    crime   by the     offender.” R.C.
       2929.14(C)(4)(c).
                ***
                However, under even the most generous reading, the trial court
       failed    to make    a finding that     consecutive    sentences    is   not
       disproportionate to the seriousness of Elmore's conduct and to the
       danger he poses to the public. R.C. 2929.14(C)(4). These words were
       used with intent by the General Assembly. Inherent in the
       proportionality finding is that a trial court engage in a weighing process,
       comparing or balancing these two factors, which it stands in the best
       position to do. An appellate court on review could scour the record for
       findings which satisfy this requirement, but if the record fails to
       demonstrate that the trial court actually weighed these factors, then
       reversal is required. Here, there is nothing in the record before us
                                                                                -3-


       demonstrating the trial court did that; in fact, prior to the imposition of
       Elmore's sentence, the trial court never uses the term consecutive
       sentence.

Elmore I at ¶ 55, ¶ 58.
       {¶7}   Accordingly, we held that "the trial court's statement during the
sentencing hearing in this matter [did] not comport with the requirements of R.C.
2929.14(C)(4) because it failed to make the proportionality finding." Id. at ¶ 60. For
that reason, this court vacated the sentence and remanded for a resentencing
regarding consecutive sentences. Id. at ¶ 62.
       {¶8}   Elmore's resentencing hearing was held; Elmore participated by
telephone from prison while counsel, the trial court and the court reporter were
present at the court. Neither Elmore nor defense counsel lodged an objection to
Elmore attending the hearing by phone. Initially, there were some technical difficulties
with the call and it disconnected before proceedings began. The bailiff called Elmore
in prison a second time and Elmore agreed that there was a bad connection the first
time but that they had a good one then.
       {¶9}   Shortly thereafter, Elmore voiced concerns about the connection being
poor. He asked if his attorney was there, and defense counsel confirmed he was.
Defense counsel then presented a sentencing argument which centered mainly on
merger. The prosecutor presented arguments; objecting to defense counsel's merger
argument and noting that the remand from this court was limited in scope to the
consecutive sentence findings.
       {¶10} The trial court then addressed Elmore directly, asking him if there was
anything he had to say. Elmore did not complain about the connection, was able to
understand and answer the trial court's inquiry and made a brief statement. The trial
court rejected the merger argument. Then the trial court proceeded to set forth some
factual background regarding the offenses, when he was interrupted by Elmore who
wanted to assert that the crimes were not gang-related. Elmore and the trial court
had a brief dialogue regarding this point, and at no time did Elmore assert that there
                                                                                -4-


were problems with the phone connections.
      {¶11} The trial court then proceeded to make all of the required consecutive
sentencing findings on the record:

                THE COURT: Defendant has a long record, a long criminal
      record, was on Post-Release Control at the time of the offense, having
      been released from prison not long before[,] and after the offense
      Defendant took and left a loaded firearm in the woods where a child
      could find it and then immediately went on the hunt for a new firearm
      which is not a good thing.
                The offense is the worst form of the offense in that it was an
      attempt at bushwhacking [designed] to shoot a victim in the back and it
      failed only because the co-defendant fell and began shooting early.
      Otherwise, it would have been a murder and actually it might have been
      a multiple murder.
                The Defendant represents the greatest likelihood of recidivism
      due to his history of criminal offenses and the egregiousness of this
      offense and due to his long criminal record and the fact that he was on
      Post-Release Control at the time of the offense.
                And for all the factors set forth above, the fact of the matter is
      consecutive sentences are absolutely necessary to protect the public
      and to punish the defendant in light of his repeated criminal conduct
      and his lack of remorse coupled with his delusions of being a victim.
      Consecutive sentences are not disproportionate. Actually they're not
      even enough to - - and they're not disproportionate to the seriousness
      of the Defendant's conduct and the danger the Defendant poses to the
      public.

      {¶12} Accordingly, the trial court again sentenced Elmore to an aggregate 14-
year prison term: eight years for the felonious assault conviction, three years on the
                                                                               -5-


firearm specification and three years on the weapons under disability conviction, to
be served consecutively.
                                        Merger
      {¶13} In his first of two assignments of error, Elmore asserts:

      The trial court erred when it refused to merge counts I and II for the
      purposes of sentencing.

      {¶14} At the resentencing, Elmore argued that his felonious assault and
having weapons under disability convictions were allied offenses of similar import and
should merge for sentencing purposes. See generally State v. Ruff, 143 Ohio St.3d
114, 2015-Ohio-995, 34 N.E.3d 892; and R.C. 2941.25.
      {¶15} The scope of the resentencing pursuant to our remand order in Elmore
I, was limited to the issue of consecutive sentences. We did not remand for a de novo
sentencing hearing. Elmore I at ¶ 36-62. Moreover, Elmore failed to raise merger
during his initial sentencing and direct appeal; therefore that issue is barred by res
judicata upon resentencing and this appeal.
      {¶16} "Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating * * *
any defense or any claimed lack of due process that was raised or could have been
raised * * * on an appeal from that judgment." State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph nine of the syllabus. It is well settled that "any issue
that could have been raised on direct appeal and was not is res judicata and not
subject to review in subsequent proceedings." State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
      {¶17} Further, as the Ohio Supreme Court has recently explained: "[W]hen a
trial court finds that convictions are not allied offenses of similar import, or when it
fails to make any finding regarding whether the offenses are allied * * * any error
[regarding the failure to merge] must be asserted in a timely appeal or it will be
barred by principles of res judicata." State v. Williams, Slip Opinion No. 2016-Ohio-
                                                                             -6-


7658, ¶ 26 (Nov. 10, 2016), citing State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-
5014, 1 N.E.3d 382, ¶ 8-9; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 3; See also State v. Dillard, 7th Dist. No. 08 JE 35, 2010-Ohio-1407, ¶
22-23 (defendant's merger argument was barred by res judicata in subsequent
appeal from the resentencing entry.)
       {¶18} Accordingly, Elmore's merger argument is barred by res judicata and
his first assignment of error is meritless.
                  Consecutive Sentence Resentencing Procedure
       {¶19} In his second and final assignment of error, Elmore asserts:

       The trial court committed reversible error when it proceeded with
       sentencing when defendant was not present.

       {¶20} Elmore argues the trial court erred by holding the limited resentencing
by telephone and not in his physical presence, in violation of Crim.R. 43(A). However,
Elmore failed to raise this error to the trial court by objecting. "[E]ven where
compliance with the notice and waiver rules of Crim.R. 43(A)(2) and (3) is not found
in the record, a defendant's absence may be improper and yet not rise to the level of
plain error where the defendant suffers no prejudice." State v. Sturgeon, 3d Dist. No.
2013-Ohio-1389, ¶ 16, citing State v. Warren, 10th Dist. No. 10AP–376, 2010–Ohio–
5718, ¶ 7, citing State v. Williams, 6 Ohio St.3d 281, 285–87 (1983).
       {¶21} The test for plain error is stringent. A party claiming plain error must
show that an error occurred, the error was obvious, and the error affected the
outcome of the proceeding; in other words, that there was prejudice. State v. Davis,
116 Ohio St.3d 404, 2008–Ohio–2, ¶ 378.
       {¶22} Crim.R. 43(A) provides in pertinent part:

              Except as provided in Rule 10 of these rules [discussing
       arraignments] and division (A)(2) of this rule [providing for the
       defendant's presence via videoconference if certain conditions are met],
                                                                                     -7-


       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. * * *
              ***
              The defendant may waive, in writing or on the record, the
       defendant's right to be physically present under these rules with leave
       of court.

Crim.R. 43(A)(1) and (3).
       {¶23} Elmore is correct that under Crim.R. 43(A), a written waiver of his
presence is required and there no such waiver in the record. The State cites State v.
Marks, 7th Dist. No. 868, 2002-Ohio-6267, is support of its argument that the
resentencing here did not run afoul of Crim.R. 43(A). However, Marks is
distinguishable.
       {¶24} Marks involved a second appeal following a remand for resentencing
for the trial court to correct its failure to state that it had considered the factors in R.C.
2929.13(B) prior to imposing a prison sentence for a fourth-degree felony. In Marks,
the trial court issued a modified sentencing entry stating it had considered those
factors at the original sentencing. A majority of the panel concluded it was proper for
the trial court to correct the issue without a hearing. Id. at ¶ 24-25. The sentencing
provision at issue there required only that the trial court consider certain factors prior
to sentencing the defendant to a prison term. See id. at ¶ 21. Since the trial court
merely clarified its original sentencing entry to state it had considered the factors, no
resentencing hearing was required and "[n]either due process nor Crim.R. 43
require[d] Appellant's presence for such a ministerial and nonsubstantive
undertaking." Marks at ¶ 24-25.
       {¶25} By contrast, here the error at the first sentencing was that the trial court
failed to make certain specific findings on the record during the sentencing hearing.
Elmore I at ¶ 60-61. We concluded that the fact that the trial court made the findings
                                                                                  -8-


in the initial sentencing entry was insufficient. Id. at ¶ 61. Upon remand here, unlike
Marks, a hearing was required to correct the sentencing error, and Elmore's
presence was required at that hearing absent a written waiver or other exceptions in
the rule such as a videoconference hearing, which did not occur here. See Crim.R.
43. Thus, holding the hearing via telephone constitutes error.
       {¶26} However, Elmore cannot demonstrate prejudice. Thus, it does not rise
to the level of plain error. Initial telephone connection issues were resolved and did
not occur during the course of the hearing. Defense counsel was able to present
arguments. Elmore himself gave a statement when the trial court specifically
addressed him. He did not complain of any connection problems at that time and he
was able to hear and understand the trial court's questions of him and converse with
the court during an extended colloquy.
       {¶27} The outcome would not have been any different had Elmore been
present in open court or video conferencing instead of by phone. There was ample
evidence in the record to support the imposition of consecutive sentences; the case
was simply remanded for the trial court to properly articulate all of the required
findings on the record pursuant to R.C. 2929.14(C)(4). Elmore I at ¶ 36-62. It is
undisputed that the trial court complied and made all of the required findings.
       {¶28} In sum, both of Elmore's assignments of error are meritless.
Accordingly, the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Robb, P. J., concurs.
