State v. Toney , 2020 Ohio 5044 ( 2020 )

[Cite as State v. Toney, 2020-Ohio-5044.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
AUBREY TONEY,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 18 MA 0081
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2010 CR 1135A
BEFORE:
Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee and
Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd. 42 North Phelps St., Youngstown,
Ohio 44503 for Defendant-Appellant.
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Dated: October 23, 2020
Robb, J.
{¶1} Defendant-Appellant Aubrey Toney appeals from his July 3, 2018
resentencing in Mahoning County Common Pleas Court for murder, two counts of
felonious assault, and attendant firearm specifications. The issue raised in this appeal is
whether Appellant’s due process and Crim.R. 43 rights were violated when he was not
physically present at the resentencing hearing, but instead appeared via teleconference.
Appellant did not object to appearing in this manner. For the reasons expressed below,
although the trial court did not obtain a waiver under Crim.R. 43, the error did not rise to
the level of plain error; Appellant cannot demonstrate prejudice, i.e., he could not show
that the outcome would have been different had he been physically present. The
sentence is affirmed.
Statement of the Case
{¶2} Appellant was convicted of the murder of Thomas Repchic and the felonious
assault of Jacqueline Repchic for events that transpired on September 25, 2010. State
v. Toney, 7th Dist. Mahoning No. 14 MA 0083, 2016-Ohio-3296, ¶ 3. He was sentenced
to fifteen years to life in prison for the murder conviction, eight years for felonious assault,
and six years for the attendant firearm specifications; in the aggregate, Appellant was
sentenced to twenty-nine years to life in prison. Appellant appealed his conviction. On
appeal, this court affirmed the jury verdict, reversed the sentence, and remanded the
matter for a new sentencing hearing. Id. at ¶ 2, 87. We held the trial court failed to make
the statutorily mandated consecutive sentence findings in the judgment entry and at the
sentencing hearing. Id. at ¶ 2, 85.
{¶3} A resentencing hearing was held on July 12, 2016. The trial court
sentenced Appellant to the same sentence, an aggregate sentence of twenty-nine years
to life. He appealed the resentencing order and argued the trial court improperly imposed
mandatory consecutive sentences and failed to properly make the R.C. 2929.14(C)(4)
findings within its sentencing entry. State v. Toney, 2017-Ohio-9384, 102 N.E.3d 1139,
¶ 1 (7th Dist.). We found merit with this argument, vacated the consecutive sentences,
Case No. 18 MA 0081
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and remanded once again for resentencing on the consecutive sentence issue. Id. at ¶
21.
{¶4} The second resentencing hearing was set for March 6, 2018. However, the
matter was continued upon motion of defense counsel. 3/12/18 J.E. The resentencing
hearing was held on April 12, 2018. Appellant did not appear in person; rather, he
appeared by teleconference. 4/12/18 Tr. 2-3. The trial court once again imposed the
same sentence – fifteen years to life for murder, three years for the attendant firearm
specification, eight years for felonious assault, three years for the attendant firearm
specification, and ordered the sentences to run consecutively. 7/3/18 J.E.; 4/12/18 Tr. 3-
5.
{¶5} Appellant timely appeals from the sentence raising one assignment of error.
8/2/18 Notice of Appeal.
Assignment of Error
“Appellant was denied his rights to due process, pursuant to the Fifth and
Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the
Ohio Constitution, as well as Ohio Rule of Criminal Procedure 43, when the trial court
conducted his sentencing hearing without him being physically present for the same.”
{¶6} Appellant argues his due process rights were violated when the
resentencing occurred without him being physically present. He contends his case is
similar to the Eighth Appellate District case, State v. Kemp, 8th Dist. Cuyahoga No.
100426, 2014-Ohio-3414, where the appellate court found reversible error when the
defendant appeared for resentencing via teleconference rather than being physically
present.
{¶7} The state argues the error complained of does not rise to the level of plain
error. It contends Appellant did not object to his teleconference presence instead of in
person presence. The state asserts Appellant cannot demonstrate that the outcome
would have been different had Appellant attended the resentencing in person.
{¶8} The record confirms that Appellant did not object to the trial court
proceeding without his physical presence. Therefore, the alleged error is reviewed under
a plain error analysis. Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.” An
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alleged error is plain error only if the error is “obvious,” and where, but for the error, the
outcome of the proceeding would clearly have been otherwise. State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002); State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804,
paragraph two of the syllabus (1978).
{¶9} “[P]lain error is a discretionary doctrine which may, but need not, be
employed if warranted.” State v. Donald, 7th Dist. Mahoning No. 08 MA 154, 2009-Ohio-
4638, ¶ 68. The Ohio Supreme Court has acknowledged the discretionary aspect of
Crim.R. 52(B) by admonishing courts to notice plain error “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” Long,
53 Ohio St. 2d 91 at paragraph three of the syllabus.
{¶10} Appellant is correct that 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, 119 Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 100.
Crim.R. 43(A) extends the constitutional right of presence to physical presence and
provides:
(1) Except as provided in Rule 10 of these rules and division (A)(2) 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. In all prosecutions, the defendant's voluntary absence after the
trial has been commenced in the defendant's presence shall not prevent
continuing the trial to and including the verdict. A corporation may appear
by counsel for all purposes.
(2) Notwithstanding the provisions of division (A)(1) of this rule, in
misdemeanor cases or in felony cases where a waiver has been obtained
in accordance with division (A)(3) of this rule, the court may permit the
presence and participation of a defendant by remote contemporaneous
video for any proceeding if all of the following apply:
(a) The court gives appropriate notice to all the parties;
Case No. 18 MA 0081
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(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 and in
person. Counsel shall be permitted to appear with defendant at the remote
location if requested.
(e) The proceeding may involve sworn testimony that is subject to cross
examination, if counsel is present, participates and consents.
(3) The defendant may waive, in writing or on the record, the defendant's
right to be physically present under these rules with leave of court.
Crim.R. 43.
{¶11} Clearly, the trial court did not fully comply with the mandates of Crim.R.
43(A). Appellant was not physically present at the resentencing, and the record is devoid
of any indication that he waived his right to be physically present.1 There is no written
waiver, and at the resentencing hearing, there was no express indication that Appellant
was waiving his right to be physically present.
{¶12} That said, the resentencing hearing transcript does indicate that many of
requirements of Civ.R. 43 were followed. Defense counsel indicated at the start of the
hearing that Appellant was present by teleconference and they were given the opportunity
to speak privately before the hearing. Tr. 3. The trial court also asked Appellant if he
wanted to say anything. Tr. 4. Appellant responded, “Well, not really, Your Honor.” Tr.
4-5.
1It
is noted that the resentencing in this case occurred in 2018. It did not occur during the COVID-
19 pandemic when the governor had declared a state of emergency.
Case No. 18 MA 0081
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{¶13} The issue this court must decide is whether the failure to comply with
Crim.R. 43(A), given the above facts, required the sentence to be vacated and the matter
remanded for a resentencing hearing.
{¶14} The Ohio Supreme Court in a number of cases has indicated that the failure
to comply with Crim.R. 43(A) and the constitutional right to be present at all critical stages
does not automatically amount to prejudice, rather prejudice must be shown. “[T]he
presence of a defendant is a condition of due process to the extent that a fair and just
hearing would be thwarted by his absence, and to that extent only.” State v. Hale, 119
Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 100. Thus, while an accused has a
constitutional right to be present at all critical stages, an accused's absence does not
necessarily result in prejudicial or constitutional error. State v. Davis, 116 Ohio St. 3d 404,
2008-Ohio-2, 880 N.E.2d 31, ¶ 90; State v. Frazier, 115 Ohio St. 3d 139, 2007-Ohio-5048,
873 N.E.2d 1263, ¶ 139. “Errors of constitutional dimension are not ipso facto prejudicial.”
State v. Williams, 6 Ohio St. 3d 281, 286, 452 N.E.2d 1323 (1983). In Williams, although
the Ohio Supreme Court accepted Williams proposition that the court acted improperly in
conducting voir dire without him being present, it declined to hold that the error was
prejudicial. Id. at 285-287. The court explained that appellant's attendance at the voir
dire would have contributed little to his defense and the failure to timely object to his
absence constituted a waiver of his right to be present. Id. Thus, a defendant's absence,
even where the notice and waiver rules of Crim.R. 43(A) are not found in the record, may
be improper and yet not rise to the level of plain error where the defendant suffers no
prejudice.
{¶15} In applying the law set forth by the Ohio Supreme Court, appellate courts
have considered a trial court’s failure to comply with Crim.R. 43(A) where no objection
was lodged when a defendant was not physically present during a resentencing hearing.
For instance, the Tenth Appellate District has held that an appellant failed to demonstrate
plain error when the resentencing was for postrelease control and sex offender
classification. State v. Mullins, 10th Dist. Franklin No. 09AP-1185, 2011-Ohio-1256, ¶ 6-
11. The Mullins court indicated Mullins failed to demonstrate that the outcome of the
proceeding would have been different if he had been physically present; he did not
articulate sufficient prejudice from his participation via video teleconference. Id. at ¶ 11.
Case No. 18 MA 0081
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The Fifth Appellate District agreed with the Tenth Appellate District’s reasoning in Mullins
and likewise held that the failure to comply with Crim.R. 43(A) did not rise to the level of
plain error in the context of a resentencing for postrelease control. State v. Dunivant, 5th
Dist. Stark No. 2011CA00160, 2011-Ohio-6874, ¶ 22-29. The Fifth Appellate District held
that Dunivant did not demonstrate the outcome would have been different.
{¶16} However, when an objection was lodged to not being physically present at
resentencing and the offender did not waive the right to being present, the Eighth
Appellate District has held that a defendant’s due process rights and Crim.R. 43 rights
were violated. State v. Kemp, 8th Dist. Cuyahoga No. 100426, 2014-Ohio-3414, ¶ 6-10.
Kemp, however, is distinguishable from this case in one important way. Kemp was not
reviewed under a plain error standard of review. The defendant in Kemp clearly objected
to not being physically present at the resentencing. In the matter at hand, although given
the opportunity to do so, neither counsel nor Appellant objected to the teleconference
appearance. Furthermore, it is additionally noted that the state conceded error in Kemp
and argued, despite the directives of Crim.R. 43(A), it would have been a waste of
resources to transport the defendant to and from the court for resentencing. Id. at ¶ 8-9.
{¶17} In the case at hand, although it would have been a better practice for the
trial court to fully comply with Crim.R. 43(A), the failure to comply in this situation did not
rise to the level of plain error. This case is more akin to Mullins and Dunivant, then to
Kemp, because Appellant did not object and has failed to demonstrate that the outcome
of this case would have been different had he been physically present at the resentencing.
After the state asked the trial court to impose the sentence it had imposed at the previous
resentencing, twenty-nine years to life, counsel for Appellant spoke and argued that the
trial court should run the sentence for felonious assault concurrent to the sentence for
murder:
Your Honor, good morning. If it please the court, the record should reflect
that Mr. Toney is present by teleconference, and I appreciate the court
giving me the opportunity to speak with him privately this morning. I agree
with Mr. Rivera. I believe we are back here on the limited issue of
consecutive sentence on the offenses themselves, not on the firearms. I
believe the Court of Appeals has decided that. I would simply say with
Case No. 18 MA 0081
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regard to the issue of consecutive sentences that the last two DRC directors
have talked to us throughout the state about the overcrowding of Ohio
prisons. And, of course, we have done a number of things in the law to try
to find other ways to deal with individuals. The reason I mention that is
because the sentence on Count One, of course is a 15-year to life sentence.
And of course, by virtue of the Court of Appeals decision there is
automatically 6 years added on to that; so we are actually looking at an
issue of 21 to life. And the only point I would like to make is that by ordering
concurrent sentencing, Mr. Toney will still have a life sentence, and it will
honor, in my estimation, that premise that the last two DRC directors and
some of the legislation that have been directed to, which is if there is a point
in time that Mr. Toney can convince the parole board while he is at a
reasonable age that he is someone who has been rehabilitated, the parole
board could make that decision, and we ask the court not to impose the
consecutive sentences because, obviously, that would delay that
consideration by eight years.
Tr. 3-4.
{¶18} Appellant was then asked if he would like to say anything, and he indicated
he would not. Tr. 4-5.
{¶19} The above statements and arguments indicate there was no prejudice and
Appellant cannot demonstrate the outcome of the proceedings would have been different
had he been physically present. Appellant was afforded the opportunity and did speak to
his attorney prior to the hearing. The statements made by the attorney at the hearing are
equivalent to statements waiving the right to presence. Furthermore, the attorney made
a logical and probably the best possible argument that could be made for concurrent
sentences. Appellant was also given the opportunity to speak, but declined the
opportunity. In the appellate brief, Appellant does not articulate how he was prejudiced
by the proceedings. Considering all of the above, we cannot find prejudice and conclude
that the error does not rise to the level of plain error. As the Ohio Supreme Court
concluded, the lack of presence at a critical stage does not necessarily and automatically
result in prejudicial or constitutional error. Davis at ¶ 90; Frazier at ¶ 139.
Case No. 18 MA 0081
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{¶20} In conclusion, the sole assignment of error lacks merit. The failure to
comply with Crim.R. 43(A) in this instance did not rise to the level of plain error because
Appellant cannot demonstrate prejudice. The sentence imposed by the trial court is
affirmed.
Donofrio, J., concurs.
D’Apolito J., concurs.
Case No. 18 MA 0081
[Cite as State v. Toney, 2020-Ohio-5044.]
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 failure to comply with
Crim.R. 43(A) in this instance did not rise to the level of plain error because Appellant
cannot demonstrate prejudice. The sentence imposed by the trial court 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.