[Cite as State v. Sherels,
2011-Ohio-3392.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95975
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY SHERELS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-528956
BEFORE: E. Gallagher, J., Boyle, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: July 7, 2011
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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 County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Gregory Sherels, appeals from a correction
of judgment of conviction in the Cuyahoga County Court of Common Pleas.
Appellant argues that the trial court committed plain error in conducting a
correction of judgment of conviction hearing by video conference pursuant to
R.C. 2929.191(C) without complying with Crim.R. 43(A)(2). For the
following reasons, we affirm the judgment of the trial court.
{¶ 2} Appellant was indicted on September 29, 2009, and charged
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with failure to verify address in violation of R.C. 2950.06(F), (Count 1), and
failure to provide notice of change of address in violation of R.C.
2950.05(E)(1), (Count 2). Appellant initially pled not guilty to the
indictment. On February 17, 2010, pursuant to a plea agreement between
the state and appellant, the state moved to amend Count 1 to attempted
failure to verify address, a felony of the third degree. Under the plea
agreement, appellant pled guilty to the amended Count 1, and Count 2 was
nolled. Appellant was sentenced on March 9, 2010 to a prison term of one
year. The trial court additionally advised appellant of a mandatory five
years of postrelease control.
{¶ 3} Prior to the completion of appellant’s prison term, the trial court
was notified by the Ohio Department of Rehabilitation and Correction that
appellant’s judgment of conviction did not include the proper advisement of a
discretionary term of postrelease control. Pursuant to R.C. 2929.191(C), the
trial court held a hearing on October 7, 2010, for the purpose of determining
whether the court should issue a correction to the judgment of conviction.
The hearing was conducted with appellant appearing by way of video
conference and appellant’s attorney present in the courtroom. Appellant
expressly waived his physical presence in the courtroom and agreed to
proceed via video conference. The trial court determined that appellant had
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previously been improperly advised of five years of mandatory postrelease
control. After hearing from both appellant’s attorney and the state, the trial
court reimposed appellant’s one-year sentence. Appellant’s release date of
October 10, 2010 was unaffected. The trial court corrected its earlier
postrelease control error and, pursuant to R.C. 2967.28(C), advised that a
period of postrelease control of up to three years at the discretion of the
parole board may be imposed.
{¶ 4} Appellant appeals the judgment of the trial court, and in his sole
assignment of error, argues that the trial court committed plain error when
it failed to inform him of how to communicate privately with his attorney
during the hearing in accordance with Crim.R. 43(A)(2)(d).
{¶ 5} For offenders sentenced after July 11, 2006, R.C. 2929.191(C)
allows a correction of judgment hearing to be conducted by way of video
conference. Crim.R. 43(A)(2) governs appearances by defendants via video
conference and provides, amongst other requirements, that, “[t]he 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
anytime, communicate privately with counsel. …” Crim.R. 43(A)(2)(d).
{¶ 6} In the present instance, appellant expressly waived his physical
presence in the courtroom and agreed to proceed via video conference. The
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trial court did not inform appellant on the record how to communicate
privately with his attorney during the hearing in accordance with Crim.R.
43(A)(2)(d). However, appellant did not object to the trial court’s omission
nor did appellant, or his counsel, at any time during the hearing, indicate a
desire to confer privately.
{¶ 7} A violation of Crim.R. 43 is not structural error and can
constitute harmless error where the defendant suffers no prejudice. State v.
Steimle, Cuyahoga App. No. 95076, 2011-Ohio-1071, citing State v. Reed,
Franklin App. No. 09AP-1164,
2010-Ohio-5819. Appellant’s failure to
object to the trial court’s Crim.R. 43(A) omission constitutes a waiver unless
he prevails under plain error. Id.; State v. Long (1978),
53 Ohio St.2d 91,
372 N.E.2d 804; State v. Morton, Franklin App. No. 10AP-562,
2011-Ohio-1488. Plain error does not exist unless it can be said that, but
for the error, the outcome of the trial clearly would have been otherwise.
Long at 95.
{¶ 8} Appellant is unable to demonstrate plain error in the present
case because he cannot demonstrate that he was prejudiced, in any manner,
by the trial court’s failure to advise him pursuant to Crim.R. 43(A)(2)(d). As
noted above, at no point during the hearing did appellant ask to speak with
his attorney privately. Furthermore, appellant does not present any
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argument as to how a private communication with his attorney could have
possibly changed the outcome of the proceeding. See Morton at ¶15 (trial
court’s Crim.R. 43(A)(2)(d) error during resentencing hearing resulted in no
prejudice to defendant where neither defendant nor his counsel indicated a
desire to confer privately). We note that the trial court, in correcting its
postrelease control sentence, was obligated under R.C. 2967.28(C) to include
a postrelease control term of up to three years at the discretion of the parole
board. Appellant presents no argument as to how a proper Crim.R.
43(A)(2)(d) instruction from the trial court would have changed this outcome.
{¶ 9} Appellant’s sole claim of prejudice stems from his speculation
that, but for the video conference hearing, the trial court would not have had
sufficient time prior to the expiration of his prison term to secure his
physical presence in court in order to conduct the hearing. However, this
alleged prejudice bears no relationship to the appellant’s claimed error. In
fact, appellant’s argument is without merit because he specifically agreed to
waive his physical presence in court and proceed via video conference.
{¶ 10} Appellant’s sole assignment of error is overruled, and the
judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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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.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
