[Cite as State v. Peace, 2012-Ohio-6118.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 5-12-04

        v.

TODD E. PEACE,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                            Trial Court No. 1997 CR 29

             Judgment Reversed, Sentence Vacated and Cause Remanded

                          Date of Decision: December 26, 2012




APPEARANCES:

        E. Kelly Mihocik for Appellant

        Mark C. Miller for Appellee
Case No. 5-12-04



ROGERS, J.

       {¶1} Defendant-Appellant, Todd Peace, appeals the judgment of the Court

of Common Pleas of Hancock County imposing postrelease control. On appeal,

Peace argues that the trial court erred by conducting the resentencing hearing via

videoconference, refusing to appoint counsel to represent him during the

resentencing hearing, and failing to conduct a de novo sentencing hearing. For the

reasons that follow, we reverse the trial court’s judgment.

       {¶2} On February 6, 1997, the Grand Jury of Hancock County indicted

Peace on the following counts: (1) Count I – aggravated murder in violation of

R.C. 2903.01(A), an unspecified felony, with specifications that the murder was

committed to avoid punishment and that the victim was a witness to another

offense committed by Peace; (2) Count II – conspiracy to commit murder in

violation of R.C. 2923.01(A)(1), a felony of the first degree; (3) Count III –

aggravated arson in violation of R.C. 2909.02(A)(1), a felony of the first degree;

and (4) Count IV - tampering with evidence in violation of R.C. 2921.12, a felony

of the third degree.

       {¶3} The State voluntarily dismissed Count II and the specifications

included in Count I. On November 9, 1998, the trial court accepted Peace’s

change of plea to guilty on the remaining counts. The matter then proceeded to

sentencing. On February 11, 1999, the trial court sentenced Peace to a life prison


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term with parole eligibility after 20 years on Count I, a nine year term on count II,

and a four year term on Count IV. The trial court further ordered that Peace serve

the terms consecutively. As a result, Peace’s total prison term is life with parole

eligibility after 33 years.

       {¶4} In April 2011, Peace moved to withdraw his guilty plea. The trial

court denied Peace’s motion and Peace appealed to this court, asserting a variety

of assignments of error. By summary judgment entry, we remanded this matter to

the trial court because it had failed to properly impose postrelease control.

       {¶5} After we remanded this matter, the trial court conducted a limited

resentencing hearing for the purpose of properly imposing postrelease control on

January 9, 2012. The hearing was conducted via videoconference. There is no

indication in the record that Peace agreed to not being physically present for the

hearing. During the hearing, Peace requested that he have counsel, but the trial

court denied his request on the basis that the hearing “was an administrative

proceeding” that did not require the presence of counsel for Peace. Tr., p. 4.

Peace also challenged the limited nature of the resentencing hearing, which the

trial court likewise rejected.

       {¶6} In regard to the imposition of postrelease control, the trial court stated

the following during the hearing:




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         [U]nder 2929.14, and 2929.18,1 upon completion of your sentence
         you will have to serve a period of post-release control as part of your
         sentence for a mandatory 5 years.
         If you are placed on post-release control the adult parole authority is
         authorized to return you to prison for up to 9 months for any single
         violation, up to a maximum of 50 percent of your prison sentence for
         all violations. And if you are convicted of a new felony while on
         post-release control, that, in addition for being punished for the new
         offense, the Judge could add an additional consecutive prison term
         of 1 year or what time remains on your post-release control term,
         whichever is greater. That in compliance with 2929.141. Id. at p. 7.

After this statement, the trial court denied a variety of other motions filed by Peace

during the course of the proceedings. The trial court journalized the imposition of

postrelease control and the denial of Peace’s motions in a judgment entry filed on

January 9, 2012.

         {¶7} Peace filed this timely appeal of the trial court’s judgment, presenting

the following assignments of error for our review.

                                    Assignment of Error No. I

         THE TRIAL COURT ERRED WHEN IT CONDUCTED MR.
         PEACE’S JANUARY 9, 2012 RESENTENCING HEARING
         VIA VIDEOCONFERENCING WITHOUT MR. PEACE
         WAIVING HIS RIGHT TO BE PHYSICALLY PRESENT.

                                   Assignment of Error No. II

         THE TRIAL COURT ERRED WHEN IT REFUSED TO
         APPOINT MR. PEACE COUNSEL TO REPRESENT HIM AT
         THE JANUARY 9, 2012 RESENTENCING HEARING.




1
 The trial court cited to R. C. 2929.14, and 2929.18, however, R.C. 2929.19(B)(2) requires that trial courts
notify defendants that they will be subject to postrelease control under R.C. 2967.28.

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                            Assignment of Error No. III

       THE TRIAL COURT ERRED WHEN IT RULED MR. PEACE
       WAS ENTITLED TO A LIMITED RESENTENCING
       HEARING AND NOT A DE NOVO RESENTENCING
       HEARING.

       {¶8} Due to the nature of the assignments of error, we elect to address them

out of order.

                             Assignment of Error No. II

       {¶9} In his second assignment of error, Peace argues that the trial court

erred in denying him counsel for the resentencing hearing. We agree.

       {¶10} Both the United States Constitution and the Ohio Constitution

guarantee that a defendant has the right to counsel during the critical stages of

criminal proceedings. Sixth and Fourteenth Amendments to the United States

Constitution; Ohio Constitution, Article I, Section 10. Thus, our disposition of

this matter is dependent on our determination of whether a resentencing hearing

for the purpose of properly imposing postrelease control is a critical stage of

criminal proceedings. In our analysis, we are guided by the following statement

from the United States Supreme Court regarding the definition of “critical stage”:

       [I]n 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. * * *
       The presence of counsel at such critical confrontations, as at the trial
       itself, operates to assure that the accused’s interests will be protected
       consistently with our adversary theory of criminal prosecution.
       United States v. Wade, 388 U.S. 218, 226-27, 87 S.Ct. 1926 (1967).

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We can find no federal case law interpreting the Sixth Amendment’s guarantee of

the right to counsel as requiring that the defendant demonstrate prejudice from the

denial of counsel during critical stages of criminal proceedings.

       {¶11} Sentencing is a critical stage in which a criminal defendant has the

right to counsel. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197 (1977).

The First District Court of Appeals has expounded on this principle in the context

of resentencing by stating the following:

       [A] resentencing hearing is just as important and pivotal an aspect of
       the criminal proceedings as the original sentencing hearing. The
       hearing is not “only a resentencing.” It is an opportunity for the trial
       court to correct its prior sentencing error and to sentence a defendant
       as mandated by the legislature, with all his constitutional and
       statutory rights intact. It is not to be treated as a pro forma
       rubberstamping of the original sentence. It is process by which the
       defendant is to be sentenced anew, with the trial court following the
       instructions provided by a reviewing court. State v. Clark, 1st Dist.
       No. C-020550, 2003-Ohio-2669, ¶ 6.

Further, the Supreme Court of Ohio has stated that postrelease control is a part of a

defendant’s sentence. E.g., State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

¶ 23 (We * * * reiterate that a judge must conform to the General Assembly’s

mandate in imposing postrelease-control sanctions as part of a criminal

sentence.”).

       {¶12} A review of these principles reveals two critical propositions. First,

criminal defendants have the right to counsel during the critical stages of the

proceedings against them, including during sentencing and resentencing. Second,

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since postrelease control is part of sentencing, its imposition, even in a limited

sentencing hearing, is part of a critical stage during criminal proceedings. Based

on these premises, we find that criminal defendants have the right to counsel when

trial courts conduct limited resentencing hearings for the purpose of properly

imposing postrelease control. The trial court here denied Peace’s request for an

attorney and consequently denied him the right to counsel guaranteed under the

United States and Ohio constitutions.

       {¶13} The State argues that a limited resentencing hearing for the purpose

of imposing postrelease control is merely “administrative,” that the presence of

counsel is unnecessary, and that the absence of counsel in this matter did not result

in prejudice to Peace. It further relies on authority from the Fourth, Ninth, and

Eleventh Districts to support these contentions. See State v. Davis, 4th Dist. No.

10CA9, 2011-Ohio-6776, ¶ 1 (stating that 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.

Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492, ¶ 29 (“Post-release 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. No. 2009-

L-170, 2011-Ohio-401, ¶ 28 (finding that the defendant was not entitled to

attorney in resentencing hearing for purpose of imposing postrelease control); see

also State v. Griffis, 5th Dist. No. CT2010-57, 2011-Ohio-2955, ¶ 29-32 (finding

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that the defendant was not entitled to counsel during resentencing hearing because

there was no substantial risk of prejudice to his fair trial rights). Although we

acknowledge the conflict in decisions, we reject the State’s contentions and

decline to follow the foregoing authority.

       {¶14} As noted above, postrelease control is part of the defendant’s

sentence and it has serious consequences in that it restricts the defendant’s rights

upon his release from imprisonment.              Davis, 2011-Ohio-6776, at ¶ 10

(“Undoubtedly, the imposition of postrelease control has serious consequences.”).

Consequently, a limited hearing for the purpose of imposing postrelease control

serves the critical function of properly handing down a criminal sentence that is in

accord with the General Assembly’s and the courts’ directives. See Clark, 2003-

Ohio-2669, at ¶ 6. A defendant is entitled to counsel in such a critical stage,

whether or not the lack of counsel prejudices him. Accordingly, we disagree with

other courts’ descriptions of limited resentencing hearings as administrative and

their focus on prejudice to the defendant when he is denied counsel in such

hearings.

       {¶15} Even if we were to focus on the prejudice that results from a denial

of counsel in limited resentencing hearings, we would still disagree with other

courts’ findings that counsel is unnecessary in such hearings. We can think of the

following four ways in which counsel’s presence affects the outcome of the

hearing and the rights of the defendant:

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         (1) It ensures that the General Assembly’s and the courts’

         directives are followed;

         (2) It ensures that the defendant understands the nature and import

         of the hearing;

         (3) It ensures that the defendant proceeds in a way that properly

         preserves issues for appellate review; and

         (4) It safeguards the defendant’s interests if the trial court proceeds

         to address issues besides the imposition of postrelease control.

         {¶16} Indeed, a review of the hearing transcript in this matter reveals some

of the dangers that naturally follow from the absence of counsel during limited

resentencing hearings.2 Without counsel, Peace was left confused and lacking an

appropriate understanding of the hearing’s purpose. He understood neither the

procedural history that led to the hearing nor what purpose the hearing served.

Consider the following exchange:

         THE DEFENDANT: Your Honor, I was under the impression,
         according to what District Court – the Third District Court of
         Hancock County, the ruling was that if it was a – either it was going
         to be a nunc pro tunc enunciation where they could give me PRC
         [postrelease control], or it was suppose[d] to be a de novo according
         to which would have been State versus Singleton, or it may have
         been just give me a nunc pro tunc hearing.
                I’m not sure how this pronouncement came about. But I do
         know that whatever the Third District stated was it was, it
         suppose[d] to be in compliance with the previous – give me one
         second, Your Honor.
2
 In addition to the deficiencies discussed here, we note that the State was afforded the opportunity to have
counsel present during the resentencing hearing.

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       THE COURT: Let me just say this, Mr. Peace, you may have one
       idea of what the mandate of the Court of Appeals is in this case, and
       I may have another.

       THE DEFENDANT: Yes, sir.

       THE COURT: And apparently I have another. And it’s my
       prerogative to proceed in light of my understanding of the entry of
       the Court of Appeals rather than your understanding of it. Tr., p. 5.

       {¶17} Peace’s statements after the trial court imposed postrelease control

further reveal confusion on his part and a trial court that was unable to correct it:

       THE DEFENDANT: Your Honor, if I may. Am I permitted to
       speak?

       THE COURT: Yes.

       THE DEFENDANT: Okay. I have three questions. First of all,
       Your Honor, I’m serving an aggravated murder count which would
       incline me – I belong to the parole board as it is anyway.
              Second, also, I served my 13 years, Your Honor. I’m already
       [past] the point for post-release control. State versus Singleton,
       same thing I brought a little while ago. I’ve already served that time.
              Second [sic], has the state reviewed the record, because that
       was clearly what the Third District said. They said to review the
       record to pronounce a de novo or a nunc pro tunc. It’s right here in
       front of me, Your Honor. It states that if they find themselves they
       properly advised me of post-release control all those years ago, then
       it was suppose[d] to be a nunc pro tunc entry. However, my
       questions remains is, has the State reviewed the record? The record
       being the transcripts, Your Honor. Because I was aware of
       transcripts have not been transcribed.

       THE COURT: I don’t know that. All I – my only mandate was as
       I’ve described it. And I don’t intend to further expand this hearing
       beyond what the Court of Appeals has mandated, and I have
       complied with that mandate.


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       THE DEFENDANT: Your Honor, respectfully, I don’t believe that
       you responded to what the Third District asked of you. I would like
       to know am I able to appeal this hearing?

       THE COURT: I can’t give you legal advice. Id. at p. 8-9.

With counsel, Peace would not have been in the position of having to ask the trial

court about his appellate rights.    He would not have been in the unenviable

position of having no legal background and being forced to argue about the

interpretation of our previous ruling in this matter. And, he would not have been

in the position of being confused as to the legal terms being used by the trial court

while it imposed serious restrictions on his postrelease freedom.

       {¶18} Further, we note that the hearing in this matter was not simply

limited to the imposition of postrelease control. The trial court denied other

motions that Peace had filed. It also denied Peace’s request for the expedited

production of the hearing transcript so that he could file an appeal. Again, Peace

was left without counsel to ably argue these issues. In light of these effects from

the denial of counsel in this matter, we find that the presence of counsel is not

superfluous in limited resentencing hearings conducted to properly impose

postrelease control.

       {¶19} In sum, the right to counsel is among the most precious rights that

our Constitution provides. See Miranda v. Arizona, 384 U.S. 436, 442, 86 S.Ct.

602 (1966), quoting Cohens v. Commonwealth of Virginia, 19 U.S. (6 Wheat.)

264, 387 (1821) (“These precious rights [including the right to counsel] were fixed

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in our Constitution only after years of persecution and struggle. And in the words

of Chief Justice Marshall, ‘they were secured for ages to come, and * * * designed

to approach immortality as nearly as human institutions can approach it.’”). The

United States Supreme Court has conferred this right during all critical stages of

criminal proceedings, including sentencing, and under Ohio law, postrelease

control is part of criminal sentences. As a result, a defendant is entitled to counsel

whenever a trial court conducts a hearing for the purpose of imposing postrelease

control, even if the hearing is for the sole purpose of imposing statutorily-

mandated postrelease control. As such, the trial court improperly denied Peace’s

request for counsel in this matter.

       {¶20} Accordingly, we sustain Peace’s second assignment of error.

                         Assignments of Error Nos. I & III

       {¶21} Our disposition of Peace’s second assignment of error renders his

first and third assignments of error moot and we decline to address them. See

App.R. 12(A)(1)(c).

       {¶22} Having found error in the particulars assigned and argued in the

second assignment of error, we reverse the trial court’s judgment denying Peace’s

right to counsel, vacate the portion of its sentence imposing postrelease control,

and remand the matter for further proceedings.

                                                     Judgment Reversed , Sentence
                                                     Vacated and Cause Remanded
SHAW, P.J., concur.

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WILLAMOWSKI, J., Dissents.

       I dissent from the majority. I would follow the reasoning of the fourth,

ninth, and eleventh districts and find that the resentencing was merely ministerial

in nature. See Davis, supra; Walker, supra, and Stallworth, supra. Thus, there

was no need for Peace to be provided counsel. For this reason, I would affirm the

judgment of the trial court.




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