[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Schleiger, Slip Opinion No. 2014-Ohio-3970.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-3970
          THE STATE OF OHIO, APPELLEE, v. SCHLEIGER, APPELLANT.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
    it may be cited as State v. Schleiger, Slip Opinion No. 2014-Ohio-3970.]
Criminal law—Right to counsel—Resentencing hearing pursuant to R.C.
        2929.191 is “critical stage” of criminal proceedings—Defendant is
        entitled to counsel at resentencing hearing held for limited purpose of
        imposing statutorily mandated postrelease control—Crim.R. 44(A)—
        Waiver of counsel.
      (Nos. 2013-0743 and 2013-1046—Submitted May 14, 2014—Decided
                                 September 23, 2014.)
     APPEAL from and CERTIFIED by the Court of Appeals for Preble County,
                       No. CA2011-11-012, 2013-Ohio-1110.
                               ____________________
        O’DONNELL, J.
         {¶ 1} The Twelfth District Court of Appeals certified the following
 conflict question for resolution: “Whether a defendant is entitled to counsel
 when a trial court conducts a resentencing hearing for the purpose of imposing
                             SUPREME COURT OF OHIO




statutorily mandated post-release control.” We accepted the conflict and one
proposition of law from Curtis D. Schleiger’s discretionary appeal:              “A
defendant has the right to counsel at a felony resentencing hearing regardless of
the scope of the hearing.”
         {¶ 2} We answer the certified question in the affirmative because a
resentencing hearing is a critical stage of a criminal proceeding to which the
right to counsel attaches. In this case, however, the record reveals that Schleiger
knowingly, intelligently, and voluntarily waived his right to counsel at the
resentencing hearing, and we therefore affirm the judgment of the appellate
court.
                          Facts and Procedural History
         {¶ 3} On August 20, 2009, a jury found Schleiger guilty of felonious
assault and carrying a concealed weapon. The court imposed a sentence of eight
years on the felonious assault charge and a term of 18 months on the concealed
weapon charge, consecutively served.
         {¶ 4} Schleiger appealed, and the appellate court determined that the trial
court did not properly impose postrelease control, and it therefore remanded the
matter to the trial court for resentencing in accordance with R.C. 2929.191. State
v. Schleiger, 12th Dist. Preble No. CA2009-09-026, 2010-Ohio-4080, ¶ 5-6. We
did not accept Schleiger’s appeal from that decision, 127 Ohio St.3d 1504, 2011-
Ohio-19, 939 N.E.2d 1266, and later declined review of the appellate court’s
denial of Schleiger’s attempt to reopen his appeal, 128 Ohio St.3d 1557, 2011-
Ohio-2905, 949 N.E.2d 43. The Supreme Court of the United States denied
certiorari. Schleiger v. Ohio, ___ U.S. ___, 132 S.Ct. 1142, 181 L.Ed.2d 1021.
         {¶ 5} At the resentencing hearing, the trial court commented that from
reading the appellate opinion it had the impression that Schleiger wanted to
represent himself. In response, Schleiger indicated that he had filed a pro se
brief. The trial court offered to appoint counsel and gave Schleiger the option of




                                         2
                               January Term, 2014




having an attorney who was present in the courtroom represent him or of
representing himself with counsel standing by, available to answer questions.
After conferring with the attorney, Schleiger told the court that he wanted to
represent himself. The trial court then asked standby counsel to remain in the
courtroom to answer any questions Schleiger might have.
       {¶ 6} Thereafter, the court denied Schleiger’s request to reconsider his
sentence as beyond the scope of the appellate court’s remand order and
announced that Schleiger would be subject to three years of mandatory
postrelease control upon release from prison. The court also advised him of the
consequences of violating postrelease control and regarding the sentence he
faced if he committed another felony while on postrelease control.
       {¶ 7} Schleiger appealed from the resentencing to impose postrelease
control and moved to clarify the scope of the appeal, asserting that the state in a
prior brief filed in opposition to his petition for a writ of certiorari before the
United States Supreme Court had indicated its willingness to waive the
application of res judicata and had stated that it would not oppose his raising
issues in an appeal from a resentencing that normally could be raised only on
direct appeal. In its entry clarifying the scope of the appeal before it, however,
the court of appeals precluded him from raising issues that were raised or could
have been raised during his initial appeal and limited the scope of the appeal to
issues related only to his resentencing to impose postrelease control.
       {¶ 8} The appellate court followed decisions from the Fourth, Fifth,
Ninth, and Eleventh Appellate Districts and determined that an offender does not
have a right to counsel at resentencing hearings conducted for the limited
purpose of imposing mandatory postrelease control because those are not de
novo sentencing hearings; rather, the appellate court reasoned that the trial court
“has no discretion” in that situation and is restricted to imposing postrelease
control in accordance with statute. State v. Schleiger, 2013-Ohio-1110, 987



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                            SUPREME COURT OF OHIO




N.E.2d 754, ¶ 16. Thus, it concluded that such a hearing is “purely ministerial
and a defendant does not face a substantial risk of prejudice” without counsel.
Id. The court of appeals also noted that the trial court had asked Schleiger at the
resentencing hearing if he wanted to have the court appoint an attorney for him,
and that after conferring with that attorney, Schleiger informed the court that he
wanted to represent himself. Id. at ¶ 17. Thus, the court of appeals concluded
that his right to counsel was not violated, id. at ¶ 18, and it rejected his other
assignments of error.
       {¶ 9} Thereafter, the appellate court certified that its decision conflicted
with State v. Peace, 3d Dist. Hancock No. 5-12-04, 2012-Ohio-6118, which had
held that a defendant has a right to counsel during a resentencing hearing
conducted for the purpose of properly imposing postrelease control.
       {¶ 10} On appeal to this court, Schleiger argues that a resentencing
hearing is a critical stage of a criminal proceeding to which the right to counsel
attaches, because postrelease control is part of a sentence.       He urges that
postrelease control requires the assistance of counsel to explain it and to provide
guidance on whether to object or appeal. He also contends that because the state
waived application of res judicata, he should have the opportunity to raise issues
other than postrelease control.
       {¶ 11} The state did not file a brief in this case.
       {¶ 12} Accordingly, this case concerns the limited issue of whether a
defendant is entitled to counsel at a resentencing hearing conducted solely for the
purpose of properly imposing statutorily mandated postrelease control.
               The Right to Counsel During “Critical Stages”
       {¶ 13} The Sixth Amendment right to counsel applies to critical stages of
criminal proceedings. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926,
18 L.Ed.2d 1149 (1967); see also Iowa v. Tovar, 541 U.S. 77, 80, 124 S.Ct.
1379, 158 L.Ed.2d 209 (2004) (“The Sixth Amendment safeguards to an accused




                                          4
                               January Term, 2014




who faces incarceration the right to counsel at all critical stages of the criminal
process”). In Wade, the court explained that “in addition to counsel’s presence at
trial, the accused is guaranteed that he need not stand alone against the State at
any stage of the prosecution, formal or informal, in court or out, where counsel’s
absence might derogate from the accused’s right to a fair trial.” (Footnotes
omitted.) Id. at 226; see also Rothgery v. Gillespie Cty., Texas, 554 U.S. 191,
212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008), fn. 16 (noting that “critical stages”
include proceedings between an individual and agents of the state that amount to
trial-like confrontations at which counsel would help the accused in coping with
legal problems or meeting the adversary).
       {¶ 14} More specifically, in Gardner v. Florida, 430 U.S. 349, 358, 97
S.Ct. 1197, 51 L.Ed.2d 393 (1977), the court explained that sentencing is a
critical stage of the proceedings, and stated that “[t]he defendant has a legitimate
interest in the character of the procedure which leads to the imposition of
sentence even if he may have no right to object to a particular result of the
sentencing process.” See also Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254,
19 L.Ed.2d 336 (1967) (holding that a defendant must be afforded an attorney at
a revocation of probation hearing).
       {¶ 15} Recognizing that sentencing is a critical stage of the criminal
proceedings, we conclude that a resentencing hearing held for the limited
purpose of properly imposing statutorily mandated postrelease control is a
critical stage of a criminal proceeding. We have previously explained that terms
of postrelease control are “part of the actual sentence” and that the court must
inform the offender regarding these terms, because sentencing is a judicial
function and a sentence cannot be imposed by the executive branch of
government. Woods v. Telb, 89 Ohio St.3d 504, 511, 512, 733 N.E.2d 1103
(2000); see also State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, ¶ 23 (“a judge must conform to the General Assembly’s mandate in



                                        5
                            SUPREME COURT OF OHIO




imposing postrelease-control sanctions as part of a criminal sentence”). And, if a
court improperly imposes postrelease control on a sentence imposed on or after
July 11, 2006, it may correct the sentence in accordance with the procedures set
forth in R.C. 2929.191, which provides that a court must hold a hearing before
issuing the correction. R.C. 2929.191(C); State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, 920 N.E.2d 958, ¶ 32, 35.
       {¶ 16} Although a resentencing hearing to impose a mandatory term of
postrelease control requires the court to adhere to R.C. 2929.191, counsel’s
presence assures that the court complies with the directives of the statute, that it
does not exceed the scope of the hearing, that the defendant understands the
imposition of postrelease control, and that issues are properly preserved for
appellate review. See Peace, 2012-Ohio-6118, at ¶ 15.
       {¶ 17} But our conclusion that the right to counsel attaches at a
resentencing hearing conducted for the limited purpose of imposing statutorily
mandated postrelease control does not end our inquiry, because in this case,
Schleiger told the court that he wanted to represent himself. Therefore, we must
examine whether he validly waived that right.
                        Waiver of the Right to Counsel
       {¶ 18} The Sixth Amendment guarantees that a criminal defendant “has
an independent constitutional right of self-representation and that he may
proceed to defend himself without counsel when he voluntarily, and knowingly
and intelligently elects to do so.” State v. Gibson, 45 Ohio St.2d 366, 345
N.E.2d 399 (1976), paragraph one of the syllabus, citing Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “In order to establish an
effective waiver of right to counsel, the trial court must make sufficient inquiry
to determine whether defendant fully understands and intelligently relinquishes
that right.” Gibson at paragraph two of the syllabus.




                                        6
                               January Term, 2014




       {¶ 19} However, in Iowa v. Tovar, the court stated that it has not
“prescribed any formula or script to be read to a defendant who states that he
elects to proceed without counsel. The information a defendant must possess in
order to make an intelligent election * * * will depend on a range of case-specific
factors, including the defendant’s education or sophistication, the complex or
easily grasped nature of the charge, and the stage of the proceeding.” 541 U.S. at
88, 124 S.Ct. 1379, 158 L.Ed.2d 209. And in Patterson v. Illinois, 487 U.S. 285,
298, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), a case involving postindictment
questioning by police and the prosecutor, the court explained that it has “defined
the scope of the right to counsel by a pragmatic assessment of the usefulness of
counsel to the accused at the particular proceeding, and the dangers to the
accused of proceeding without counsel. An accused’s waiver of his right to
counsel is ‘knowing’ when he is made aware of these basic facts.”
       {¶ 20} Crim.R. 44(A) provides that a criminal defendant charged with a
serious offense is entitled to counsel “unless the defendant, after being fully
advised of his right to assigned counsel, knowingly, intelligently, and voluntarily
waives his right to counsel.” And Crim.R. 44(C) provides that “[w]aiver of
counsel shall be in open court and the advice and waiver shall be recorded as
provided in Rule 22. In addition, in serious offense cases the waiver shall be in
writing.” Notwithstanding, in State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-
5471, 816 N.E.2d 227, we explained that


      when a criminal defendant elects to proceed pro se, the trial court
      must demonstrate substantial compliance with Crim.R. 44(A) by
      making a sufficient inquiry to determine whether the defendant
      fully understood and intelligently relinquished his or her right to
      counsel. If substantial compliance is demonstrated, then the failure
      to file a written waiver is harmless error.



                                         7
                             SUPREME COURT OF OHIO




(Citation omitted.) Id. at ¶ 39.
        {¶ 21} In this case, the record reveals that the trial court had Schleiger’s
presentence investigation report, which disclosed that Schleiger was 26 years of
age when he was sentenced in 2009, had completed his GED, had committed
multiple offenses as a juvenile, had a criminal history of more than 25
misdemeanor and minor felony offenses dating from 2001 through 2008, had
been imprisoned on three prior occasions, and had served at least ten different
jail terms. Thus, the trial court had a basis to evaluate Schleiger’s level of
education and sophistication with the legal system and could determine
Schleiger’s ability to grasp the limited nature of a hearing involving imposition
of mandatory postrelease control. In addition, the court had the ability to assess
the danger to Schleiger of proceeding pro se, as prejudice could involve either
exceeding the scope of the hearing or imposing postrelease control in a manner
contrary to law. Notably, Schleiger elected to proceed pro se after conferring
with counsel, who remained in the courtroom at the trial court’s direction to
assist if necessary. This record therefore demonstrates that Schleiger knowingly,
intelligently, and voluntarily waived his right to counsel and reflects substantial
compliance with Crim.R. 44(A).
                                   Conclusion
        {¶ 22} We answer the certified question in the affirmative because a
resentencing hearing is a “critical stage” of the proceedings to which the right to
counsel attaches. See United States v. Wade, 388 U.S. at 224, 87 S.Ct. 1926, 18
L.Ed.2d 1149. However, the facts reveal that Schleiger knowingly, intelligently,
and voluntarily waived his right to counsel at the resentencing hearing, and we
therefore affirm the judgment of the appellate court, which held that the trial
court had properly imposed postrelease control and had not violated Schleiger’s
right to counsel by allowing him to represent himself at the resentencing hearing.




                                         8
                                       January Term, 2014




                                                                               Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur.
          LANZINGER, KENNEDY, and FRENCH, JJ., dissent in part and concur in
judgment only.
                                    ____________________
          LANZINGER, J., dissenting in part and concurring in judgment only.
           {¶ 23} I concur in judgment but respectfully dissent from the majority’s
    holding that a resentencing hearing held for the limited purpose of properly
    imposing statutorily mandated postrelease control is a critical stage of a criminal
    proceeding that gives rise to the right to counsel. I would hold, as have the
    majority of appellate courts that have considered the issue of postrelease-control
    correction,1 that a resentencing hearing held for this purpose is ministerial and
    does not involve the possibility of prejudice that requires counsel to represent the
    defendant.
The Statutory Procedure
           {¶ 24} The majority reasons that because postrelease control is part of a
    sentence and sentencing is a critical stage of the criminal proceedings, a
    resentencing hearing held for the limited purpose of properly imposing
    statutorily mandated postrelease control is a critical stage of a criminal
    proceeding. I disagree. The General Assembly has created a statutory procedure
    to remedy a sentencing court’s mistake in failing to properly impose a term of
    postrelease control. R.C. 2929.191 applies to Schleiger because he was initially
1
  See State v. Davis, 4th Dist. Washington No. 10CA9, 2011-Ohio-6776, ¶ 1 (resentencing hearing
to impose postrelease control is “purely ministerial in nature because the [trial] court [is] limited to
imposing a statutorily required term of postrelease control”); State v. Griffis, 5th Dist. Muskingum
No. CT2010-57, 2011-Ohio-2955, ¶ 29-32 (no need to appoint counsel for resentencing hearing to
impose postrelease control because no substantial risk of prejudice to defendant’s fair-trial rights);
State v. Stallworth, 9th Dist. Summit No. 25461, 2011-Ohio-4492, ¶ 29 (postrelease-control
defects “do not affect the merits of a defendant’s underlying conviction or the lawful elements of
his existing sentence”); State v. Walker, 11th Dist. Lake No. 2009-L-170, 2011-Ohio-401, ¶ 28
(defendant not entitled to attorney in resentencing hearing limited to imposing postrelease
control).




                                                   9
                            SUPREME COURT OF OHIO




sentenced after July 11, 2006. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-
3831, 935 N.E.2d 9, ¶ 69. The statute provides for a limited resentencing:


       Before a court holds a hearing pursuant to this division, the court
       shall provide notice of the date, time, place, and purpose of the
       hearing to the offender who is the subject of the hearing, the
       prosecuting attorney of the county, and the department of
       rehabilitation and correction. The offender has the right to be
       physically present at the hearing, except that, upon the court’s own
       motion or the motion of the offender or the prosecuting attorney,
       the court may permit the offender to appear at the hearing by video
       conferencing equipment if available and compatible.              An
       appearance by video conferencing equipment pursuant to this
       division has the same force and effect as if the offender were
       physically present at the hearing. At the hearing, the offender and
       the prosecuting attorney may make a statement as to whether the
       court should issue a correction to the judgment of conviction.


(Emphasis added.) R.C. 2929.191(C).
        {¶ 25} The statute refers to “the offender” throughout and there is no
reference to “the offender’s attorney.” An attorney is unnecessary at this stage of
proceedings because at most, the court is to “issue a correction to the judgment
of conviction.” Id. The hearing is not de novo and is limited to the performance
of a ministerial act.
        {¶ 26} Schleiger has not shown how he was prejudiced by a correction
that did not change his sentence other than to impose postrelease control that was
always mandated by statute. In fact, we have already suggested that it is possible
for a court of appeals itself to correct a situation in which no sentencing




                                        10
                               January Term, 2014




discretion is involved and modify a sentence under R.C. 2953.08(G)(2) without
remanding to the trial court. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, ¶ 29-30. This arguably could include correcting an error
in the imposition of postrelease control.
No Critical Stage of Criminal Proceedings
        {¶ 27} The key to determining if a particular type of proceeding is a
critical stage is to ask whether there is a potential risk of substantial prejudice to
a defendant’s rights, thus requiring the presence of counsel to avoid that result.
Stated differently, counsel will be required “where counsel’s absence might
derogate from the accused’s right to a fair trial.” United States v. Wade, 388
U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The word “trial” implies
an adversarial process with the possibility of a different outcome, rather than a
ministerial process in which no judicial discretion is involved.
        {¶ 28} By mandating the right to defense counsel for a hearing that simply
concerns the correction of a postrelease-control error, the majority unduly
broadens the meaning of “critical stage” of criminal proceedings. The nature of
the hearing under R.C. 2929.191(C) is not adversarial and the trial court
exercises no discretion, so this is not a trial-like setting at which “counsel would
help the accused ‘in coping with legal problems or * * * meeting [the]
adversary.’ ” Rothgery v. Gillespie Cty., Texas, 554 U.S. 191, 212, 128 S.Ct.
2578, 171 L.Ed.2d 366 (2008), fn. 16, quoting United States v. Ash, 413 U.S.
300, 313, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).            The postrelease-control-
correction hearing is not in the nature of a probation-revocation hearing, in
which the defendant faces the imminent possibility of new confinement and for
which counsel has been deemed necessary. See Mempa v. Rhay, 389 U.S. 128,
137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Schleiger’s prison sentence was
already imposed and remained intact, and the hearing at issue was held merely to
correct the omission of the fact that he was subject to three years of mandatory



                                         11
                            SUPREME COURT OF OHIO




postrelease control. This ministerial correction did not involve any discretion
and did not (and could not) change his original sentence of incarceration.
        {¶ 29} I would hold that although it would be best practice to provide a
standby attorney for consultation, as was done in this case, a defendant has no
right to the appointment of counsel in a resentencing hearing to correct a
postrelease-control error. I therefore concur in judgment only.
       KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                             ___________________
       Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellant.
                         _________________________




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