[Cite as State v. Evans,
2024-Ohio-5330.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DREW ALAN EVANS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 BE 0008
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 23 CR 0184
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Katelyn Dickey, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, Atty. Jacob A. Manning, Assistant
Prosecuting Attorney, for Plaintiff-Appellee and
Atty. Mary Adeline R. Lewis, for Defendant-Appellant.
Dated: November 4, 2024
–2–
Robb, P.J.
{¶1} Appellant, Drew Alan Evans, appeals his conviction for attempted complicity
to aggravated possession of drugs. Appellant argues he was denied due process since
the trial court held his plea and sentencing hearing via video teleconference. We decline
to find plain error and affirm.
Statement of the Facts and Case
{¶2} Appellant was indicted in July of 2023 and charged with two counts: having
weapons while under a disability, a third-degree felony in violation of R.C. 2923.13(A)(3)
and (B), and conspiring with another to possess methamphetamine, a third-degree felony
in violation of R.C. 2923.03(A)(3) and (F).
{¶3} After the exchange of discovery, the case was set for a hearing in January
of 2024. Defense counsel was present in the courtroom, and Appellant appeared via
video teleconference. The hearing was continued. (January 30, 2024 Judgment.)
{¶4} The next pretrial hearing was held in February. Appellant again appeared
via video teleconference, and the parties discussed a potential plea agreement. The
parties also discussed maintaining Appellant’s local incarceration to facilitate his meetings
with defense counsel while awaiting the next plea hearing. (February 26, 2024 Tr.)
{¶5} The February 26, 2024 transcript is in the record. There is no objection to
Appellant appearing remotely and no request by him or counsel to appear in person.
There is likewise nothing showing Appellant waived the right to appear in person at this
hearing or any future hearings. (February 26, 2024 Tr.)
{¶6} Appellant entered a plea agreement during the next scheduled plea hearing
held on March 11, 2024. The prosecutor and defense counsel were present in the
courtroom, and Appellant was present via video teleconference. Counsel advised the
court that a plea agreement and a jointly recommended sentence had been reached.
{¶7} Appellant appeared remotely and was asked if he could hear and see the
trial court judge at the beginning of the hearing. There is no on-the-record indication that
Appellant waived the right to be in person or he objected to appearing via video
teleconference. (March 11, 2024 Tr.)
Case No. 24 BE 0008
–3–
{¶8} The prosecutor advised the court that the parties had reached an
agreement. The state moved to amend count two to attempted possession of
methamphetamine and asked the court to dismiss count one. The court approved the
request and asked defense counsel to confirm the agreement. Defense counsel asked
to confer with his client, which happened in open court:
[COUNSEL:] Mr. Evans, what we spoke about earlier today is - - we got
done. So the joint and agreed sentence to a plea would be 16 months; we
presented that to the Court. Do you still want to go forward with that plea
today?
THE DEFENDANT: Yeah. Yeah.
(March 11, 2024 Tr. 3.)
{¶9} The court then conducted a plea colloquy. It verified Appellant had a copy
of the plea agreement and that it reflected the agreement to which Appellant agreed.
Because Appellant indicated he “skimmed” the written agreement, the court reviewed the
terms with him in detail. The court confirmed no threats or promises were made to
Appellant and he agreed to waive the presentence investigation and proceed to
sentencing. Appellant indicated he was satisfied with his attorney and he understood that
by pleading guilty he was admitting to the charge. The court then reviewed and verified
Appellant understood the constitutional rights he was waiving by pleading guilty and also
confirmed Appellant knew his right to appeal was limited if the court imposed the jointly
recommended sentence. The court accepted the plea agreement. (March 11, 2024 Tr.
4-6, 7-14.)
{¶10} The parties waived the presentence investigation, and the court proceeded
to sentencing. The trial court adopted the recommended sentence of 16 months in prison
and ordered the sentence to be served consecutively to the one Appellant was serving at
the time of the plea. (March 11, 2024 Tr. 7-16.) (March 13, 2024 Judgment.)
{¶11} Appellant raises one assignment of error.
Assignment of Error
“Appellant was denied his right to due process when the trial court conducted his
plea and sentencing hearing without him being physically present or obtaining an express
waiver from the Appellant.”
Case No. 24 BE 0008
–4–
{¶12} Appellant urges us to find plain error because the trial court held his
combined plea and sentencing hearing via video conference without securing a waiver of
Appellant’s right to appear in person.
{¶13} The state argues the error complained of does not rise to the level of plain
error. It contends Appellant did not object to his lack of in person presence and he cannot
demonstrate the outcome would have been different had Appellant attended the hearing
in person.
{¶14} The state additionally contends because the court imposed the jointly
recommended sentence, Appellant has waived the right to argue that his Crim.R. 43 right
to be present was violated. Instead, the state claims he is only permitted to challenge
whether his plea was knowingly and voluntarily made.
{¶15} R.C. 2953.08(D)(1) states: “A sentence imposed upon a defendant is not
subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is imposed
by a sentencing judge.”
{¶16} Assuming arguendo that R.C. 2953.08(D)(1) does not bar the review of the
jointly recommended sentence, we conclude Appellant was not prejudiced by the court’s
failure to secure Appellant’s right to be present.
{¶17} Appellate courts may notice “[p]lain errors or defects affecting substantial
rights . . . although they were not brought to the attention of the [trial] court.” Crim. R.
52(B). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice.”
State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. Plain error is an
obvious deviation from a legal rule that affects the outcome of the trial. State v. Barnes,
94 Ohio St.3d 21, 27 (2002). The appellant must show the outcome would have been
different absent the plain error. Id.; State v. Whitaker,
2022-Ohio-2840.
{¶18} When a criminal defendant seeks to have his conviction reversed on appeal,
ordinarily he must establish that an error occurred in the trial court proceedings and
resulting prejudice from that error. State v. Dangler, 2020-Ohio-2765, ¶ 13. “The test for
prejudice is ‘whether the plea would have otherwise been made.’ ” Id. at ¶ 16, quoting
Case No. 24 BE 0008
–5–
State v. Nero, 56 Ohio St.3d 106, 108 (1990). Furthermore, an Appellant must establish
prejudice based on the record. Id. at ¶ 24.
{¶19} A criminal defendant has a fundamental right to be present at all critical
stages of his criminal trial. Section 10, Article I of the Ohio Constitution; State v. Hale,
2008-Ohio-3426, ¶ 100. This includes the right to be physically present during the
imposition of sentence. State v. Toney,
2020-Ohio-5044, ¶ 10 (7th Dist.). However, a
defendant’s absence does not necessarily result in prejudicial or constitutional error.
State v. Davis,
2008-Ohio-2, ¶ 90; State v. Frazier,
2007-Ohio-5048, ¶ 139.
{¶20} Further, Crim.R. 43(A) extends the right to be present and states:
(1) Except as provided in Crim.R. 10 and divisions (A)(2) and (A)(3) of this
rule, 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. . . .
(2) Notwithstanding the provisions of division (A)(1) of this rule, the court
may permit the remote presence and participation of a defendant if all of the
following apply:
(a) The court gives appropriate notice to all the parties;
(b) The video arrangements allow the defendant to hear and see the
proceeding;
(c) The video arrangements allow the defendant to speak, and to be seen
and heard by the court and all parties;
(d) The 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 any time, communicate privately with counsel. Counsel
shall be afforded the opportunity to speak to defendant privately. Counsel
shall be permitted to appear with defendant at the remote location if
requested.
...
(3) A court may conduct a trial by jury, a trial to the court, a sentencing
proceeding or other substantive proceeding with a defendant appearing
Case No. 24 BE 0008
–6–
remotely if the defendant has waived in writing or orally on the record the
right to be physically present and agreed to appear by remote presence in
accordance with division (A)(2) of this rule subject to the approval of the
court.
{¶21} In light of the lack of waiver on the record here, the trial court’s decision to
accept Appellant’s plea and sentence him while he was appearing via teleconference was
improper.
{¶22} However, as indicated, Appellant’s counsel appeared and represented him
throughout the proceeding and ensured Appellant’s right to due process was protected,
such that there was nothing indicating that the fairness of the proceedings was
undermined. This was the third hearing held during which Appellant participated
remotely.
{¶23} Appellant was able to hear and communicate with the court and counsel,
albeit remotely. Appellant’s attorney indicated he and Appellant had discussed the plea
agreement earlier that day. Further, the trial court adopted the parties’ jointly
recommended plea agreement and sentence and did so in Appellant’s presence with his
cooperation and agreement.
{¶24} While we agree Appellant’s physical presence at these critical proceedings
was required, he fails to allege actual prejudice as a result of the error.
{¶25} Examples of actual prejudice include where a court modifies a defendant’s
sentence outside her presence, including the addition of probation conditions. Another
example is where there was a discrepancy between the sentencing judgment and the
sentence pronounced at the sentencing hearing resulting in an unclear sentence. See
State v. Taylor, 2017-Ohio-9270, ¶ 6-8 (8th Dist.).
{¶26} Although the trial court failed to comply with Crim.R. 43(A), its failure to
comply in this case does not rise to the level of plain error. Appellant did not object and
has failed to demonstrate that the outcome of his case would have been different had he
been physically present at the combined plea hearing and sentencing. State v. Toney,
2020-Ohio-5044, ¶ 17 (7th Dist.).
{¶27} Based on the foregoing, Appellant’s sole assigned error lacks merit and is
overruled.
Case No. 24 BE 0008
–7–
Waite, J., concurs.
Dickey, J., concurs.
Case No. 24 BE 0008
[Cite as State v. Evans, 2024-Ohio-5330.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
