[Cite as State v. Lee, 2011-Ohio-4634.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95776




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     VIAMONTE LEE
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-460656

        BEFORE:            Rocco, J., Stewart, P.J., and Cooney, J.
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      RELEASED AND JOURNALIZED: September 15, 2011

                                     -i-

ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Anna M. Faraglia
      Mark J. Mahoney
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant Viamonte Lee appeals from his resentencing

hearing held pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,

868 N.E.2d 961, as modified by State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus.

      {¶ 2} Lee presents four assignments of error.   He argues: 1) his “video

conference” resentencing hearing was improper because the trial court did not
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obtain a knowing waiver of his right to be physically present; 2) his

resentencing hearing was improper because the trial court conducted it only

days prior to his release from prison; 3) his right to effective assistance of

counsel was compromised at the resentencing hearing because counsel had

been newly-appointed to his case; and, 4) the trial court should have vacated

his plea rather than resentencing him.

      {¶ 3} Having reviewed the record with Lee’s arguments in mind, this

court finds merit to none of them. Consequently, his assignments of error

are overruled, and his sentence is affirmed.

      {¶ 4} Lee originally was indicted in January 2005 on three counts,

charged with the forcible rape, gross sexual imposition upon, and kidnapping

of his teenaged niece. After a lengthy period of discovery, Lee eventually

entered into a plea agreement with the state.

      {¶ 5} By the terms of the agreement, in exchange for the state’s

amendment of the indictment to the charges of attempted rape in Count 1

and a fourth-degree felony gross sexual imposition in Count 2, and the state’s

dismissal of Count 3, Lee would enter guilty pleas. The trial court informed

Lee during the colloquy that, upon release from any prison term, he would be

placed on postrelease control “for a period of up to 5 years.”
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      {¶ 6} The trial court accepted Lee’s guilty pleas to the two amended

counts. The court ultimately sentenced him in October 2005 to concurrent

prison terms of five years and seventeen months, respectively. However, at

both the sentencing hearing and in the journal entry, the trial court did not

specifically impose the mandatory five-year term of postrelease control.

      {¶ 7} On August 27, 2010, the trial court called Lee’s case for a

resentencing hearing. The record reflects Lee was represented by counsel.

The court noted at the outset that Lee’s presence in court was “via video,” and

asked Lee if he waived his physical presence for the purpose of the hearing.

Lee answered, “Yes.”

      {¶ 8} The trial court proceeded to conduct a full resentencing hearing.

After giving the prosecutor, defense counsel, and Lee the opportunity to

address the court, the court noted the offenses to which Lee pleaded guilty,

the sentences originally imposed, and reminded Lee about his duties with

respect to his classification as a sexually-oriented offender.

      {¶ 9} The trial court then stated that, since Lee would be released from

prison by September 2, 2010, his sentence on Count 2 had expired, but the

five-year sentence for attempted rape remained appropriate. Along with this

sentence on Count 1, the trial court informed Lee he was subject to a

mandatory five-year term of postrelease control.
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      {¶ 10} Lee appeals from his resentencing and presents the following four

assignments of error for review.

      {¶ 11} “I.     Defendant was denied due process of law when the

court did not get a proper waiver of defendant’s right to appear in

person.

      {¶ 12} “II.    Defendant was denied due process of law when he

was resentenced six days before his release.

      {¶ 13} “III.    Defendant was denied the assistance of counsel for

reason of late appointment of counsel.

      {¶ 14} “IV.     Defendant was denied due process of law when his

plea was not vacated by reason of a proper advice concerning

mandatory post-release.”

      {¶ 15} Lee argues in his first assignment of error that the trial court

violated Crim.R. 43 in obtaining his waiver of his right to be present in

person at the resentencing hearing. Lee apparently asserts that the trial

court was required to explain to him his Crim.R. 43 rights before conducting

the resentencing. The rule has no such requirement.

      {¶ 16} Lee had the representation of counsel at the resentencing

hearing. This case thus presents a similar situation to that presented to this

court in State v. Steimle, Cuyahoga App. No. 95076, 2011-Ohio-1071.        In
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Steimle, this court observed that, when the court called the case for

resentencing, neither the defendant nor his attorney either objected to the

video conference or invoked Crim.R. 43; therefore, the issue had been waived

for appellate purposes.

      {¶ 17} In any event, the record in this case demonstrates the trial court

complied with each of the requirements set forth in Crim.R. 43(A)(2), and Lee

voluntarily waived his right to be physically present. Lee’s first assignment

of error, accordingly, is overruled.

      {¶ 18} In his second assignment of error, Lee argues it was “unjust” to

resentence him only days before his release from prison. The Ohio Supreme

Court, however, has endorsed the procedure utilized by the trial court in this

case. Fischer, paragraph two of the syllabus. See, also, State v. Simpkins,

117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at the syllabus, where

the court held that, in a case in which postrelease control is required but not

included in the sentence, “ * * * the state is entitled to a new sentencing

hearing to have postrelease control imposed on the defendant unless the

defendant has completed his sentence” on that count. (Emphasis added.) Cf.,

State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at

¶70; Bezak at ¶18.
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      {¶ 19} Since the trial court did not act outside its jurisdiction in

conducting Lee’s resentencing hearing, his second assignment of error also is

overruled. State v. Deskins, Lorain App. No. 10CA009875, 2011-Ohio-2605.

      {¶ 20} Lee argues in his third assignment of error that he was deprived

of his right to effective assistance of counsel because counsel was appointed

for him solely for purposes of the resentencing hearing.          In making this

argument, Lee presents assertions that are unsupported in the record.

      {¶ 21} The record reflects Lee’s appointed counsel accomplished all of

the   following   at   the   resentencing   hearing:   he   had    developed   an

attorney-client relationship with Lee, he had sufficient opportunity to confer

with Lee, he had advised Lee not to challenge his sexual offender

classification, and he spoke eloquently on Lee’s behalf. On the record before

this court, Lee can demonstrate neither that counsel fell below an objective

standard of reasonable representation, nor that counsel’s performance

prejudiced him. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373;

State v. Samuels, Summit App. No. 25283, 2011-Ohio-2631.

      {¶ 22} Consequently, his third assignment of error also is overruled.

      {¶ 23} In his fourth assignment of error, Lee argues that the trial court

should have, sua sponte, vacated his guilty plea on Count 1 because it failed
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to fully apprise him at the plea hearing that five years of postrelease control

was mandatory. This argument is outrageous.

      {¶ 24} Lee never sought to withdraw his plea.       Cf. State v. Hubbard,

Summit App. No. 25141, 2011-Ohio-2770. Had the trial court done as Lee

now suggests, he would be arguing that the trial court had abused its

discretion1 by sua sponte vacating his plea just days before his sentence had

been completed.

      {¶ 25} In State v. Padgett, Cuyahoga App. No. 95065, 2011-Ohio-1927,

this court observed at ¶7 as follows:

      {¶ 26} “ * * * Fischer clarified the holding in Bezak, explaining that

while a sentence that lacks proper postrelease control is void, ‘only the

offending portion of the sentence is subject to review and correction.’ Fischer

at ¶27. The court concluded, ‘although the doctrine of res judicata does not

preclude review of a void sentence, res judicata still applies to other aspects of

the merits of a conviction, including the determination of guilt and the lawful

elements of the ensuing sentence.             The scope of an appeal from a

resentencing hearing in which a mandatory term of post release control is


      1 This court remains skeptical that Lee actually desires to re-institute the
original prosecution, and wonders if such an assignment of error should be raised
without a showing that appellate counsel obtained the express written consent of
the appellant to do so.
                                        9

imposed is limited to issues arising at the resentencing hearing.’ Fischer at

¶40.”

        {¶ 27} A challenge to the validity of a plea is an issue that should have

been raised on direct appeal. Hence, the doctrine of res judicata applies to

such a challenge and bars Lee from raising it in this appeal of his sentencing.

        {¶ 28} Accordingly, Lee’s fourth assignment of error also is overruled.

        {¶ 29} The trial court’s judgment is 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. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

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.



__________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., CONCURS; and
COLLEEN CONWAY COONEY, J.,
CONCURS IN JUDGMENT ONLY
