State v. Mason ( 2017 )

[Cite as State v. Mason, 2017-Ohio-7065.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104533
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RODERICK J. MASON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AS MODIFIED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-602780-A
BEFORE: Laster Mays, J., McCormack, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: August 3, 2017
-i-
ATTORNEY FOR APPELLANT
Paul A. Mancino, Jr.
Mancino Mancino & Mancino
75 Public Square Bldg., Suite 1016
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Marc Bullard
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, Roderick J. Mason (“Mason”), appeals his conviction
for drug-related charges. Mason contends that the trial court erred by: (1) denying his
motion to suppress without a hearing; (2) failing to inform him of the effect of a no
contest plea; (3) misstating the term of postrelease control; and (4) failing to record a
pretrial proceeding. We affirm the trial court’s decision.
I. Facts and Background
{¶2} Mason was indicted on January 29, 2016, for:
Count 1: Trafficking (Cocaine), R.C. 2925.03(A)(2), felony of the first
degree, with one-year firearm specification and forfeiture specifications;
Count 2: Drug Possession (Cocaine), R.C. 2925.11(A), felony of the first
degree, with one-year firearm specification, forfeiture specifications, and
major drug offender specification;
Count 3: Trafficking (Marijuana), R.C. 2925.03(A)(2), felony of the third
degree, with one-year firearm specification and forfeiture specifications;
Count 4: Drug Possession (Marijuana), R.C. 2925.11(A), felony of the
third degree, with one-year firearm specification and forfeiture
specifications;
Count 5: Having Weapons While Under Disability, R.C. 2923.13(A)(3),
felony of the third degree, with forfeiture specifications;
Count 6: Possessing Criminal Tools, R.C. 2923.24(A), felony of the fifth
degree, with forfeiture specifications.
{¶3} The indictments stemmed from a search warrant issued on January 14, 2016,
based on an affidavit reciting a series of controlled drug transactions between Mason and
several confidential informants. Mason drove a 1999 GMC Yukon and a 2005 Infiniti
FX45 to the meetings. The scope of the warrant included Mason’s residence on
Shawnee Avenue in Cleveland, Ohio (“Premises”) and the vehicles.
{¶4} Mason entered a plea of not guilty at the arraignment. On March 23, 2016,
Mason filed several motions including a motion to suppress charging that the search
warrant was based on an insufficient affidavit. The two-page motion listed the factual
grounds for the deficiency and properly referenced Crim.R. 12(C)(3), but was not filed
with a supporting brief of legal authorities.
{¶5} On April 22, 2016, the state filed a motion to strike the suppression motion
due to the lack of legal citation. See Crim.R. 47. The afternoon of April 25, 2016, the
court granted the state’s motion. Approximately an hour later, Mason filed a document
entitled “motion to suppress” in a brief format that lacked the requisite motion pages
citing Crim.R. 12(C)(3), but contained the arguments and supporting law (“Motion”).
{¶6} On April 27, 2016, Mason filed a “supplemental motion to suppress and for
the return of illegally seized property (Franks hearing requested),”1 consisting of a cover
motion citing the applicable rules and specifying the activities complained of, a
supporting brief, a copy of the state-redacted search warrant affidavit, and Mason’s
affidavit challenging specific portions of the warrant affidavit (“supplemental motion,”
the motion and supplemental motion collectively referred to herein as the “Motions”).
{¶7} On May 3, 2016, the state filed a brief in opposition to the Motions. The
parties agreed that a hearing and unrecorded side bar took place on May 4, 2016. The
trial court agreed to review the filings and rule on the motion by May 6, 2016. However,
Mason argues the trial court agreed to review the filings and to reset the matter for
hearing. The state disagrees.
{¶8} On May 5, 2016, Mason filed a fourth document entitled “supplemental
motion to suppress” that appears to be identical to the Motion. The trial court
immediately issued an entry striking the filing:
The supplemental motion to suppress filed by defendants after the [5/4/16]
hearing date and after 5/4/16 wherein the parties agreed to the court ruling
on the motion on pleadings, and filed without leave is stricken. Should the
defendants wish to supplement the original motion, they must first seek
leave to do so. The court grants the defendants until 5/9/16 at noon to file a
motion for leave to file a supplemental motion to suppress. In the event
they fail to timely file said motion for leave to supplement, the court will
rule on the motion and brief in opp[osition] previously submitted.
Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (“a
1
defendant * * * [has] the right, under the Fourth and Fourteenth Amendments, subsequent to the ex
parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an
affidavit supporting the warrant.”)
(Emphasis added.). See judgment entry filed on May 5, 2016.
{¶9} A copy of the entry was sent to counsel by regular mail on May 6, 2016.
On May 10, 2016, the trial court issued entries denying the pending motion without
recitation of fact or law, and setting the case for trial on May 16, 2016. Counsel
discovered the trial court’s May 6 and May 10, 2016 rulings when checking the online
docket. Mason filed a motion for reconsideration on May 11, 2016, advising the court
that: (1) counsel had not received the trial court’s rulings, (2) counsel had not waived the
suppression hearing, and (3) the facts mandated a hearing. Mason also filed a motion to
continue the trial date. On May 12, 2016, both motions were denied.
{¶10} Mason entered a plea of no contest on May 16, 2016. The court found
him guilty and sentenced him as follows: Count 1 merged with Count 2, and Mason was
sentenced on Count 2 to 11 years plus one year for the firearm specification. Counts 3
and 4 merged, and Mason was sentenced on Count 3, to two years. Mason received nine
months on Count 6 and two years on Count 5, for a total sentence of 16 years (Counts 2,
3, 5, and the firearm specification are consecutive. Count 6 is served concurrently).
Mason’s driver’s license was suspended for four years and asset forfeiture was ordered.
The trial court waived fines and costs, and Mason filed the instant appeal.
II. Law and Analysis
{¶11} Mason poses four assignments of error:
I. Defendant was denied due process of law when the court overruled
his motion to suppress without conducting an evidentiary hearing.
II. Defendant was denied due process of law when the court failed to
inform the defendant of the effect of a plea of no contest.
III. Defendant was denied due process of law when the court misadvised
defendant concerning postrelease control for a felony of the first
degree.
IV. Defendant was denied due process of law when the court failed to
record the proceedings on May 4, 2016.
{¶12} We first acknowledge the propriety of this appeal under the facts of this
case. Crim.R. 12(I) states, a “plea of no contest does not preclude a defendant from
asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion,
including a pretrial motion to suppress evidence.” See State v. McCormick, 41 Ohio
App.3d 158, 160, 534 N.E.2d 942 (8th Dist.1988).
A. Denial of the Motion to Suppress Without a Hearing
{¶13} We begin with Mason’s argument that his due process rights were violated
when the trial court denied his motion to suppress without a hearing. Mason’s arguments
are primarily grounded on Franks, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, and
Bailey v. United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013).
{¶14} A hearing is not mandatory on a motion to suppress. Crim.R. 12(F)
instructs that a “court may adjudicate a motion based upon briefs, affidavits, the proffer
of testimony and exhibits, a hearing, or other appropriate means.”
“Crim.R. 12(E) does not mandate an evidentiary hearing on every motion to
suppress. State v. Johnson, 8th Dist. Cuyahoga No. 60402, 1992 Ohio
App. LEXIS 1752 (Apr. 2, 1992), citing Solon v. Mallion, 10 Ohio
App.3d 130, 132, 460 N.E.2d 729 (1983). A trial court must conduct such
a hearing only when the claims in the motion would justify relief and are
supported by factual allegations. Id. See also State v. Hartley, 51 Ohio
App.3d 47, 554 N.E.2d 950 (1988).” State v. Djuric, 8th Dist. Cuyahoga
No. 87745, 2007-Ohio-413, ¶ 32.
State v. Conley, 8th Dist. Cuyahoga No. 88495, 2007-Ohio-2920, ¶ 11. We examine the
record to determine whether Mason’s claims are supported by factual allegations and
justify relief. Id. Crim.R. 47.
1. Franks
{¶15} Search warrant affidavits enjoy a presumption of validity. State v. Sheron,
8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 29, citing State v. Roberts, 62 Ohio
St.2d 170, 178, 405 N.E.2d 247 (1980).
In Roberts, the Ohio Supreme Court held that “a challenge to the factual
veracity of a warrant affidavit must be supported by an offer of proof which
specifically outlines the portions of the affidavit alleged to be false, and the
supporting reasons for the defendant’s claim.” Id., citing Franks, 438 U.S.
154, 171-172, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). As the United States
Supreme Court held in Franks, a challenge to the affiant’s veracity requires
“allegations of deliberate falsehood or of reckless disregard for the truth.”
Id. at 171. Such allegations must be supported by an “offer of proof [that]
should include the submission of affidavits or otherwise reliable statements,
or their absence should be satisfactorily explained.” Roberts at 178.
In order to require a trial court to hold a hearing, a defendant must first
make a “substantial preliminary showing” that the affiant included a false
statement in the affidavit either knowingly and intentionally, or with
reckless disregard for the truth. Id. at 177; Franks at 155. Even if a
defendant makes a sufficient preliminary showing, a hearing is not required
unless, without the allegedly false statements, the affidavit is unable to
support a finding of probable cause. Id. at 178; Franks at 171-172.
Sheron at ¶ 30-31.
{¶16} Franks requires (1) “allegations of deliberate falsehood” or of “a reckless
disregard for the truth”; (2) an “offer of proof”; (3) identification of the false affidavit
sections; (4) explanation of the supporting rationale; and (5) sworn statements or an
explanation for their absence. Franks at 171.
{¶17} According to the warrant affidavit, in January 2016, 2 the affiant and
another detective followed a “suspicious vehicle” into a parking lot, the vehicle pulled
next to a black Infiniti with a license plate registered to Mason, a “known drug dealer.”
The vehicle followed the Infiniti to another location, trailed discreetly by police. A
transaction was observed, and the car occupants were subsequently stopped by the
detectives.
{¶18} The occupants “admitted to buying crack cocaine” from the driver of the
Infiniti and provided detectives with Mason’s cell phone number. The occupants
subsequently served as informants. The affidavit describes two controlled buys by the
informants during the week of January 4, 2016, conducted at two locations. Mason was
driving the GMC truck during the buys.
{¶19} Another transaction transpired within 72 hours of the affidavit.
Detectives observed Mason drive away in the Infiniti because they were conducting
surveillance of the Premises. They followed Mason and observed a transaction involving
another vehicle. The detectives stopped the driver of that vehicle who handed over
A number of affidavit items are redacted.
2
cocaine reportedly purchased from Mason. The driver identified Mason’s photograph
and stated he had conducted a number of transactions with Mason over a period of time.
{¶20} The affidavit contains detailed accounts of transactions and the
surveillance controls employed. Mason is identified by each of the informants. Mason’s
vehicles are fully identified and his residency at the Premises confirmed. The search
warrant declares the existence of “probable cause to believe” that contraband and related
items are concealed in the “Infiniti and GMC vehicles,” the garage, the safes, and other
areas “within the” Premises.
{¶21} Mason avers in a cursory rebuttal affidavit that: (1) he never possessed or
used a cell phone with one of the cell numbers recited in the warrant affidavit, (2) cell
phone records for a second number did not support the contents of the warrant affidavit,
(3) he “challenge[d] the veracity of paragraphs 1, 5, 6 and 8,” (4) he denied that a buy was
conducted within 72 hours of the warrant affidavit, and (5) he denied the balance of the
warrant affidavit.
{¶22} Mason provided no evidence or facts supporting his general statements.
“The [defendant’s] attack must be more than conclusory. * * * Allegations [by
defendant] of negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 155,
98 S.Ct. 2674, 57 L.Ed.2d 667.
{¶23} We find that Mason failed to make a “substantial preliminary showing” of
the knowing, intentional or reckless inclusion of a false statement, or establish that,
without the false statements, the warrant affidavit is unable to support a finding of
probable cause. Sheron, 8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 31, citing
Roberts, 62 Ohio St.2d at 177, 405 N.E.2d 247, and Franks at 155. Thus, Mason was
not entitled to a Franks hearing, and this portion of the argument fails.
2. Bailey
{¶24} Mason argues here that the Motions recite facts sufficient to invoke a
hearing based on Bailey, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013). “In
Bailey, the court held that detentions incident to the execution of a search warrant are
reasonable at the scene of the search but not at a later time in a remote place under the
Fourth Amendment.” State v. Cruz, 8th Dist. Cuyahoga No. 98264, 2013-Ohio-1889, ¶
22, citing Bailey.
{¶25} Based on information from a confidential informant, detectives were
watching Bailey’s apartment, planning to execute a search warrant, when Bailey drove off
in his car with a friend. Id. at 190. The detectives radioed police that they were going
to follow and detain Bailey. Bailey was pulled over by the officers and patted down.
Both men were handcuffed, and Bailey was informed that he was being detained incident
to a search warrant. Bailey was driven by detectives to the apartment, followed by an
officer driving Bailey’s car, where the search had already revealed guns and drugs in
plain view. Bailey’s keys, one of which fit the apartment door, were also confiscated.
Id. at 190.
{¶26} The trial court denied Bailey’s motion to suppress, holding that his
detention was permissible under Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69
L.Ed.2d 340 (1981), “as a detention incident to the execution of a search warrant.” Id. at
191-192. The court further determined that the “detention was lawful as an
investigatory detention supported by reasonable suspicion under Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” Id. at 192. The Second Circuit affirmed.
United States v. Bailey, 652 F.3d 197 (2d Cir.2011).
{¶27} On appeal, the Supreme Court explained its recognition in Summers that
the combined concerns of officer safety, facilitating the completion of a search, and
defendant flight prevention “justify the detention of an occupant who is on the premises
during the execution of a search warrant.” Id. at ¶ 194. However, the Court also
acknowledged in Bailey that Fourth Amendment protections require imposition of a
“spatial constraint” on those concerns. Id. at 200.
{¶28} The Court reversed the Bailey suppression ruling:
[T]he search of a residence — has a spatial dimension, and so a spatial or
geographical boundary can be used to determine the area within which both
the search and detention incident to that search may occur. Limiting the
rule in Summers to the area in which an occupant poses a real threat to the
safe and efficient execution of a search warrant ensures that the scope of
the detention incident to a search is confined to its underlying justification.
Once an occupant is beyond the immediate vicinity of the premises to be
searched, the search-related law enforcement interests are diminished and
the intrusiveness of the detention is more severe.
Id.
{¶29} Mason contends in the Motions that he was arrested in the city of Euclid
and transported to the Premises. “[O]n January 15, 2016 the Defendant was illegally
arrested by members of the Cleveland Police Department while the police executed a
Search Warrant on the above premises in direct contravention of Bailey.” There are no
details or descriptions supporting the invocation of Bailey, 652 F.3d 197 (2d Cir.2011).
Mason’s accompanying affidavit does not address the Bailey issue at all, or the
circumstances of the arrest.
{¶30} The search warrant was issued on January 14, 2016. The scope of the
warrant includes the Premises as well as the Infiniti and GMC vehicles. According to
the January 16, 2016 Police Case Information Form in this case, Mason was arrested on
January 15, 2016, at 11:30 a.m. and “a search warrant was executed at 19015 Shawnee
Ave. Roderick Mason was detained leaving the premises.” Mason’s Motions do not
refute this statement.
{¶31} “‘If officers elect to defer the detention until the suspect or departing
occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other
standards * * * [such as] an arrest based on probable cause case.’” United States v.
Hernandez, S.D. Ohio No. 2:15-cr-97, 2016 U.S. Dist. LEXIS 132290, 15-16 (Sep. 27,
2016), quoting Bailey at 202. In the instant case, the search warrant includes the
Premises as well as Mason’s vehicles. “In Bailey, the police merely followed a former
occupant of the premises they planned to search. Here, the warrant particularly described
Defendant [and the defendant’s vehicle] as a specific person [and item] to be searched.”
United States v. Perez, 6th Cir. No. 14-3794, 2015 U.S. App. LEXIS 18614 (Oct. 23,
2015).
{¶32} Mason has not established that the “claims in the motion would justify relief
and are supported by factual allegations,” or the elements essential for the establishment
of a claim under Bailey, 652 F.3d 197 (2d Cir.2011). Cruz, 8th Dist. Cuyahoga
No. 88495, 2007-Ohio-2920, at ¶ 11. See also Perez. Mason’s first assigned error is
without merit.
B. Crim.R. 11
{¶33} On this point, Mason argues that the trial court did not comply with Crim.R.
11(B)(2) and inform him of the effect of his no contest plea. We disagree.
{¶34} Crim.R. 11 pleas involve constitutional and nonconstitutional rights. State v.
Otterbacher, 8th Dist. Cuyahoga No. 102644, 2015-Ohio-4680, ¶ 7, citing State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 474, ¶ 14-21.
{¶35} While the trial court cited elements of the plea colloquy addressing
Mason’s understanding that he was waiving certain constitutional rights by pleading no
contest, it did not specifically quote the language in Crim.R. 11(B)(2). A defendant
pleading no contest must be informed that the plea “is not an admission of guilt but is an
admission of the truth of the facts alleged in the complaint, and that the plea or admission
shall not be used against the defendant in any subsequent civil or criminal proceeding.”
State v. Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 23, citing
Crim.R. 11(B)(2).
{¶36} Compliance with Crim.R. 11(B)(2) is nonconstitutional. The impact of a
failure to comply with a nonconstitutional right requires a “substantial-compliance”
analysis. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31.
“Substantial compliance means that under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights he is waiving.” Clark
at ¶ 48, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing
State v. Stewart, 51 Ohio St.2d 92-93, 364 N.E.2d 1163 (1977).
[I]f the trial court completely fails to comply with the effect-of-plea
requirement in Crim.R. 11(C)(2)(b), prejudice does not need to be
demonstrated. A complete failure occurs when the record is devoid of any
explanation of the no-contest plea. See E. Cleveland v. Zapo, 8th Dist.
Cuyahoga No. 96718, 2011-Ohio-6757, ¶ 10 (finding the trial court
completely failed to comply with the effect-of-plea requirement because the
record was devoid of any explanation of the no-contest plea thus rendering
the prejudice analysis unnecessary); State v. Ramey, 7th Dist. Mahoning No.
13 MA 64, 2014-Ohio-2345, ¶ 16 (stating that a complete failure to comply
with the effect-of-plea requirement is akin to trial court merely asking the
defendant what his plea was and not attempting to inform the defendant of
the effect of the plea). Compare State v. Durkin, 7th Dist. Mahoning
No. 13 MA 36, 2014-Ohio-2247, ¶ 18 (finding there was not a complete
failure to comply with the effect-of-plea requirement, but only a partial
failure because the trial court attempted to advise defendant of the effect of
the no-contest plea).
State v. Jones, 2d Dist. Montgomery No. 25688, 2014-Ohio-5574, ¶ 11.
{¶37} The trial court reviewed the constitutional rights and the possible
sentences, and ultimately stated Mason’s “plea is found to be knowingly, intelligently and
voluntarily made.” After sentencing, the trial court informed Mason that, in pleading no
contest, he had the right to appeal the ruling on the motion to suppress. Mason
confirmed his understanding.
{¶38} Distinguishing cases involving misdemeanors and failure to advise of
postrelease control, we have held that a trial court’s failure to inform a “defendant the
effect of a plea to a felony, does not invalidate the plea unless” the defendant is able to
demonstrate prejudice due to the lack of substantial compliance. State v. Simonoski, 8th
Dist. Cuyahoga No. 98496, 2013-Ohio-1031, ¶ 11, citing State v. Griggs, 103 Ohio St.2d
85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12; Jones, 116 Ohio St.3d 211, 2007-Ohio-6093,
877 N.E.2d 677, at ¶ 53; Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at
¶ 14-17; and State v. Petitto, 8th Dist. No. 95276, 2011-Ohio-2391, ¶ 5-8 (finding no
prejudice by the trial court’s failure to advise defendant of effect of guilty plea).
{¶39} We thus determined in Simonoski that the analysis for guilty pleas
applied to no contest pleas also. Here, as in Simonoski, Mason “never asserted his
innocence; therefore, we presume the court’s failure to advise him regarding the effect of
his no contest plea was not prejudicial.” Simonoski at ¶ 13. Mason has not
demonstrated that, but for the omission, he would not have entered a no contest plea to
the charges that would establish prejudice. Id. at ¶ 9, citing Nero, 56 Ohio St.3d at
108, 564 N.E.2d 474.
{¶40} The second assigned error is without merit.
C. Postrelease Control
{¶41} Mason seeks to vacate his guilty plea for the court’s misstating the term
of the postrelease control. The trial court incorrectly stated that the postrelease control
term was for “three years” and not five years as dictated by R.C. 2967.28(B)(1):
You’re subject to Postrelease Control for three years on each of the counts.
If you violate the conditions of Postrelease Control, the Parole Board must
impose an additional prison term for up to one-half of the term that I’ve
imposed. (Tr. 15.)
{¶42} The journal entry provides:
Postrelease control is part of this prison sentence for 3 years mandatory for
the above felony(s) under R.C. 2967.28. Defendant advised that if/when
postrelease control supervision is imposed following his/her release from
prison and if he/she violates that supervision or condition of postrelease
control under R.C. 2967.131(B), parole board may impose a prison term as
part of the sentence of up to one-half of the stated prison term originally
imposed upon the offender.
{¶43} This is not a case where the trial court failed to advise Mason that he
would be subject to postrelease control. See State v. Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509, 881 N.E.2d 1224. We determined in State v. Lang, 8th Dist.
Cuyahoga No. 92099, 2010-Ohio-433, that the trial court’s statement that the defendant
“may be subject” to postrelease control “for a period of up to three years” when the
correct period was a mandatory five-year term was a failure to substantially comply
with statutory requirements. Id. at ¶ 11. However, we did not vacate the plea because
the defendant failed to demonstrate prejudice. Id. at ¶ 12, citing State v. Clark, 119 Ohio
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. A plea must be vacated where a trial judge
fails completely to mention postrelease control. Id.{¶44} As with the analysis of the second assignment of error herein, there is no
evidence in the record that the period of postrelease control “was of particular concern or
import to” Mason. Id. at ¶ 14. “The reduction in sentence that the plea offered may be
viewed as the possible impetus for entering into the plea.” Id.
{¶45} The third assignment of error has merit insofar as the court misstated the
nature of postrelease control; however, this court is not required to “remand a sentence
that includes an improper period of postrelease control.” State v. Christinger, 8th Dist.
Cuyahoga No. 94632, 2011-Ohio-458, ¶ 5, citing State v. Fisher, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, ¶ 30. We therefore modify and correct Mason’s term
of mandatory postrelease control from three years to five years under R.C. 2953.08(G)(2).
Christinger at ¶ 6.
D. Record of Proceedings
{¶46} Mason contends that the trial court’s failure to record the May 4, 2016
proceedings violated his due process rights as well as Crim.R. 22, which requires that
“[i]n serious offense cases all proceedings shall be recorded.” We disagree.
{¶47} Mason’s motion for reconsideration claims the “court stated it would
consider the pleadings and consider whether a hearing would need to be conducted.”
The state argues that the trial court’s journal entry properly reflects the proceedings. The
entry provides, “the parties agreed to the court’s ruling on the motion on pleadings.”
{¶48} What is indisputable is that Mason’s failure to request that the hearing
proceedings be recorded waived the issue. “A reversal will not occur as a result of
unrecorded proceedings when the defendant failed to object and fails to demonstrate
material prejudice.” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d
229, ¶ 183, citing State v. Palmer, 80 Ohio St.3d 543, 554, 1997-Ohio-312, 687 N.E.2d
685.
{¶49} We further note that, as was the case in Leonard, there was no attempt “to
invoke the procedures of App.R. 9(C) or 9(E) to reconstruct the off-the-record
conferences or to establish their importance.” Id. at ¶ 184.
{¶50} The fourth assigned error is overruled.
III. Conclusion
{¶51} Judgment is affirmed as modified and remanded with instructions for
the court to correct the sentencing entry to reflect the proper period of postrelease control.
It is ordered that the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
ANITA LASTER MAYS, JUDGE
TIM McCORMACK, P.J., and
MELODY J. STEWART, J., CONCUR