State v. Bunting , 2012 Ohio 445 ( 2012 )

[Cite as State v. Bunting, 2012-Ohio-445.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
LARRY BUNTING
Defendant-Appellant
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
Case Nos. 2011 CA 00112,
2011 CA 00130 and 2011 CA 00131
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 1996 CR 0799
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 6, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO ANTHONY KAPLANIS
PROSECUTING ATTORNEY 116 Cleveland Avenue NW
RONALD MARK CALDWELL Suite 701
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702
Wise, J.
{¶1} Appellant Larry Bunting challenges his April 1, 2011, re-sentencing in the
Stark County Court of Common Pleas.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On August 26, 1996, Appellant Larry Bunting waived his right to an
indictment and pleaded guilty to seven counts of aggravated robbery as charged in a bill
of information. All of the charges were felonies of the first degree; six of these charges
were pre-Senate Bill 2 charges, while the remaining count was a post-Senate Bill 2
charge. As a result of his guilty plea to these charges, Appellant Bunting was convicted
and sentenced to an aggregate indeterminate prison term of sixteen (16) to fifty (50)
years for the six pre-Senate Bill 2 charges, and a consecutive prison term of nine (9)
years for the post-Senate Bill 2 charge. At the sentencing hearing, Appellant was not
properly notified about post release control.
{¶4} In 2010, Appellant filed a motion for re-sentencing based upon improper
imposition of post-release control as part of his post Senate Bill 2 sentence. Appellant
requested a de novo sentencing, asking to be re-sentenced on the prison terms as well
as post-release control part of his sentence. The trial court denied the request for a de
novo re-sentencing.
{¶5} On April 1, 2011, the trial court held a re-sentencing hearing at which the
Appellant was present via a video link to his prison facility. At this hearing, Appellant
objected to the video conference and requested to be physically present for the hearing.
The Appellant followed up his oral objection with a written objection to the video
conferencing requesting that he be physically present. This written objection was filed
on April 5, 2011.
{¶6} On May 11, 2011 the trial court overruled his motion. At this video hearing,
the trial court advised Appellant about post release control.
{¶7} On May 20, 2011, Appellant filed a timely pro se Notice of Appeal which
was subsequently dismissed. On July 7, 2011, a second Notice of Appeal was filed
through counsel.
ASSIGNMENTS OF ERROR
{¶8} Appellant has filed three separate pro se appeals raising the following
identical assignments of error:
{¶9} “I. THE TRIAL COURT ERRED BY SUBJECTING DEFENDANT TO A
FISCHER STYKE SENTENCING HEARING INSTEAD OF A DE NOVO SENTENCING
HEARING
{¶10} “II. TRIAL COURT ERRED BY NOT ALLOWING APPELLANT TO BE
PRESENT FOR RE-SENTENCING HEARING.”
{¶11} Appellant also filed a second brief through counsel raising the same
errors:
{¶12} “I. THE TRIAL COURT ERRED BY HOLDING A DE NOVO
SENTENCING HEARING WITHOUT THE DEFENDANT BEING PRESENT IN THE
COURTROOM.”
I., II.
{¶13} We shall address Appellant’s assignments of error simultaneously as they
raise the same issues.
{¶14} Specifically, Appellant contends that the trial court was required to vacate
his original sentence and re-sentence him, rather than just modify or correct his original
sentence. Appellant also claims that he was denied the right to be physically present in
the courtroom during his re-sentencing. We disagree.
{¶15} Appellant herein was resentenced under State v. Bezak, 114 Ohio St.3d
94, 2007-Ohio-3250, overruled on other grounds, State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, and State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434. The
resentencing was done via a video link to the prison facility.
{¶16} Effective July 11, 2006, the legislature enacted R.C. §2929.191, therein
promulgating a statutory remedy for trial courts to use to correct an error in imposing
post release control. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920
N.E.2d 958 at paragraph one of the syllabus. In Singleton, the Supreme Court of Ohio
reasoned as follows with respect to the retroactive application of R.C. 2929.191:
{¶17} “for sentences imposed prior to July 11, 2006, in which a trial court failed
to properly impose postrelease control, trial courts shall conduct a de novo sentencing
hearing in accordance with decisions of the Supreme Court of Ohio. However, for
criminal sentences imposed on and after July 11, 2006, in which a trial court failed to
properly impose postrelease control, trial courts shall apply the procedures set forth in
R.C. 2929.191.”
{¶18} Thus, R.C. §2929.191 applies only prospectively and essentially provides
that if a trial court fails to properly impose post release control, after a hearing, it may
issue a nunc pro tunc entry correcting the error.
{¶19} Appellant herein was sentenced prior to the effective date of R.C.
§2929.191. Thus, the reasoning set forth in Singleton would seem to dictate that the trial
court conduct a de novo sentencing hearing.
{¶20} However, in 2010, the Supreme Court of Ohio overruled or largely altered
its holdings in Singleton and its progeny in State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238. In Fischer, the Court reaffirmed that a sentence that failed to include the
statutorily required post release control term is void. Id. However, the only part of the
sentence that is “void” is the portion that fails to comply with the requirements of post
release control statutes. Therefore, “when a judge fails to impose statutorily mandated
postrelease control as part of a defendant's sentence, that part of the sentence is void
and must be set aside.” Id. at ¶ 26. But “the new sentencing hearing to which an
offender is entitled * * * is limited to proper imposition of postrelease control.” Id. at ¶ 29.
{¶21} We find that the trial court was therefore correct in finding that Appellant
was not entitled to a de novo re-sentencing.
{¶22} Appellant also argues that it was error to re-sentence him via video
conferencing because he was sentenced prior to the effective date of R.C. §2929.191,
which permits video conferencing.
{¶23} This Court recently addressed the issue of a defendant’s right to be
physically present at a re-sentencing hearing in State v. Dunivent, Stark App.No.
2011CA00160, 2011-Ohio-6874.
{¶24} In Dunivent, this Court concurred with the analysis of the Tenth District
Court of Appeals in State v. Mullins, Franklin App. No. 09AP-1185, 2011-Ohio-1256, ¶
6-11, which held that such error was not structural error, and finding that the issue
should be reviewed under the plain error doctrine.
{¶25} This Court went on to find that “any error in the video procedure is
harmless. Harmless error is “[a]ny error, defect, irregularity, or variance which does not
affect substantial rights shall be disregarded.” Crim.R. 52(A). Overcoming harmless
error requires a showing of undue prejudice or a violation of a substantial right.
Appellant has not demonstrated any prejudice in the video procedure or that the
outcome would have been different.”
{¶26} The Appellant herein, like the Appellant in Dunivent, has failed to allege
that he was prejudiced in any way by the video conferencing,
{¶27} We therefore find that even if it were error to re-sentence Appellant by
video conferencing in this case, any such error is harmless.
{¶28} Appellant’s assignments of error are overruled.
{¶29} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and Hoffman, J., concur.
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___________________________________
JUDGES
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LARRY BUNTING :
:
Defendant-Appellant : Case Nos. 2011 CA 00112, 2011
: CA 00130 and 2011 CA 00131
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES