State v. Chester , 2023 Ohio 2122 ( 2023 )

[Cite as State v. Chester, 2023-Ohio-2122.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2022-P-0060
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
ISAAC J. CHESTER,
Trial Court No. 2021 CR 00462
Defendant-Appellant.
OPINION
Decided: June 26, 2023
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Neil P. Agarwal, Law Offices of Agarwal & Agarwal, 3732 Fishcreek Road, P.O. Box
288, Stow, OH 44224 (For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Isaac J. Chester, appeals his sentencing entry following his guilty
plea to one count of failure to comply with an order or signal of a police officer. We affirm.
{¶2} In 2021, during a traffic stop, Chester fled from officers in his vehicle.
Officers pursued Chester for approximately 62 miles. During the pursuit, Chester
purportedly tossed a firearm from his car. Officers ultimately apprehended Chester and
allegedly located drugs in his vehicle.
{¶3} Thereafter, Chester was indicted on the following counts: failure to comply
with an order or signal of a police officer, in violation of R.C. 2921.331, a third-degree
felony; identity fraud, in violation of R.C. 2913.49, a fifth-degree felony; and aggravated
possession of drugs, in violation of R.C. 2925.11, a fifth-degree felony. After initially
pleading not guilty, Chester ultimately entered a guilty plea to the charge of failure to
comply with an order or signal of a police officer, and the state dismissed the remaining
counts. The trial court referred the matter to the probation department for the preparation
of a presentence investigation and report and set the matter for sentencing. Thereafter,
the court continued sentencing several times on Chester’s motions, wherein he requested
sentencing be postponed until proceedings pending against him in Cuyahoga County
were resolved.
{¶4} Subsequently, a sentencing hearing was scheduled in the present matter
for July 5, 2022. At the hearing, which was held via remote contemporaneous video, a
different attorney stood in for defense counsel. The stand-in attorney indicated that
Chester had advised him that he was not going to appear on camera due to “unfinished
business” with defense counsel. Stand-in counsel further indicated that Chester was
surprised that his sentencing was scheduled for that date. When the trial court attempted
to address Chester, the case manager at the correctional institution where Chester was
confined informed the court that Chester had left the room.
{¶5} Thereafter, the court again held a sentencing hearing via remote
contemporaneous video on August 10, 2022. At the commencement of the hearing, the
trial court stated:
THE COURT: State of Ohio versus Isaac Chester. He
is present in court today by way of video from the jail.
I am going to place some things on the record as to
why Mr. Chester is not being brought over in person.
2
Case No. 2022-P-0060
I'm going to go back to July 5, 2022, he was still at the
Institution, I scheduled a sentencing hearing, he refused to
come to the room to participate in his sentencing. I have the
transcript here. He just refused to participate.
So in response to that, I had him physically brought
here from the Institution to Portage County so that I could
sentence him.
I had scheduled, I believe it was last week for
sentencing in person.1 He became incredibly disruptive and
had to be removed from the courtroom.
So today I know he can hear me, I know he can see
everything that’s going on in here. We have a video set up.
And I, to avoid not being able to continue with this sentencing,
I have him visibly here remotely from the jail so that he can
see us and that we can see him.
{¶6} The sentencing hearing then proceeded, and the trial court sentenced
Chester to 24 months of imprisonment, to be served as a mandatory consecutive
sentence to the sentence Chester was currently serving on his convictions imposed in the
Cuyahoga County case. The sentence was incorporated in an entry dated August 10,
2022, which also set forth that Chester was to receive 104 days of jail-time credit, “as
stipulated by the parties.” On August 11, 2022, the trial court issued a nunc pro tunc
sentencing entry suspending Chester’s license and ordering forfeiture of the firearm and
ammunition.
{¶7} On October 18, 2022, Chester moved the trial court for the appointment of
counsel to assist in an appeal. The trial court granted the motion, and counsel filed a
delayed appeal with leave of this court.
1. The record does not include a transcript of the attempted in-person sentencing hearing.
3
Case No. 2022-P-0060
{¶8} In his assigned errors, Chester maintains that the trial court committed plain
error with respect to certain sentencing issues. “Crim.R. 52(B) affords appellate courts
discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding
the accused’s failure to meet his obligation to bring those errors to the attention of the trial
court.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
“However, the accused bears the burden of proof to demonstrate plain error on the record,
* * * and must show ‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an
“obvious” defect in the trial proceedings[.]’” Rogers at ¶ 22, quoting State v. Barnes, 94
Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). This obvious error must have affected the
outcome of the trial. Rogers at ¶ 22. Accordingly, the accused must “demonstrate a
reasonable probability that the error resulted in prejudice—the same deferential standard
for reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Rogers at ¶ 22,
citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159
L.Ed.2d 157 (2004). “But even if an accused shows that the trial court committed plain
error affecting the outcome of the proceeding, an appellate court is not required to correct
it; [the Supreme Court of Ohio has] ‘admonish[ed] courts to notice plain error “with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.”’” (Emphasis added.) Rogers at ¶ 23, quoting Barnes at 27,
quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus.
{¶9} In his first assigned error, Chester maintains:
4
Case No. 2022-P-0060
{¶10} “The trial court committed reversible and plain error by holding a sentencing
hearing by remote video conferencing in violation of Defendant's right to be present at
every stage of the proceedings.”
{¶11} “A defendant ‘has a fundamental right to be present at all critical stages of
his criminal trial.’” State v. Taylor, 2022-Ohio-3611, 198 N.E.3d 956, ¶ 36 (11th Dist.),
quoting State v. Hill, 73 Ohio St.3d 433, 444, 653 N.E.2d 271 (1995); Article 1, Section
10, Ohio Constitution (“In any trial, in any court, the party accused shall be allowed to
appear and defend in person and with counsel[.]”); and R.C. 2945.12 (“No other person
[other than a person indicted for a misdemeanor] shall be tried unless personally
present[.]”). “Procedurally, Crim.R. 43(A)(1) provides that ‘the defendant must be
physically present at every stage of the criminal proceeding and trial, including * * * the
imposition of sentence, except as otherwise provided by these rules.’” Taylor at ¶ 37. “In
felony cases, ‘the court may permit the presence and participation of a defendant by
remote contemporaneous video for any proceeding,’ but only where the defendant has
waived, ‘in writing or on the record, the defendant’s right to be physically present under
these rules with leave of court.’” Taylor at ¶ 37, quoting Crim.R. 43(A)(2)-(3). “The court
may also conduct proceedings in the defendant’s absence or by remote
contemporaneous video where the defendant’s ‘conduct in the courtroom is so disruptive
that the hearing or trial cannot reasonably be conducted with the defendant’s continued
physical presence.’” Taylor at ¶ 37, quoting Crim.R. 43(B).
{¶12} Here, Chester maintains that the trial court conducted the sentencing
hearing in violation of Chester’s right to be physically present. The state responds that
the trial court held the sentencing hearing via remote contemporaneous video pursuant
5
Case No. 2022-P-0060
to Crim.R. 43(B) due to Chester’s prior disruptive behavior. However, Chester maintains
that because Crim.R. 43(B) is stated in the present tense, i.e., “a defendant’s conduct in
the court is so disruptive,” the disruptive conduct must have occurred at that particular
hearing, not a prior hearing, for Crim.R. 43(B) to apply. (Emphasis added.)
{¶13} However, assuming without deciding that Chester’s construction of Crim.R.
43(B) is accurate, any error in the trial court proceeding with sentencing via remote
contemporaneous video did not amount to a manifest miscarriage of justice, particularly
given Chester’s conduct when he was previously physically present in the court.
{¶14} Moreover, the state asserts, and we agree, that Chester has failed to
establish prejudice. Chester maintains that use of remote contemporaneous video was
prejudicial because the trial court failed to notify him at the sentencing hearing of the total
amount of jail-time credit he would receive, in violation of R.C. 2929.19(B)(2)(g)(i).
However, defense counsel and Chester were able to speak during the hearing, and thus
it does not appear that they were precluded from objecting to the trial court’s failure to set
forth the specific sum of jail-time credit. Thus, we cannot discern a connection between
the video format of sentencing and the trial court’s failure to state the total days of jail-
time credit at sentencing. Accordingly, we review the issue of the trial court’s failure to
state the total days of jail-time credit below, where Chester has specifically argued this
issue as error.
{¶15} For the foregoing reasons, Chester’s first assigned error lacks merit.
{¶16} In his second assigned error, Chester argues:
{¶17} “The trial court committed reversible and plain error by not notifying
Defendant of his jail-time credit before sentencing or during the sentencing hearing.”
6
Case No. 2022-P-0060
{¶18} R.C. 2929.19(B)(2)(g)(i) provides, in relevant part:
Subject to division (B)(3) of this section, if the sentencing court
determines at the sentencing hearing that a prison term is
necessary or required, the court shall * * * [d]etermine, notify
the offender of, and include in the sentencing entry the total
number of days, including the sentencing date but excluding
conveyance time, that the offender has been confined for any
reason arising out of the offense for which the offender is
being sentenced and by which the department of rehabilitation
and correction must reduce the definite prison term imposed
on the offender as the offender’s stated prison term * * *. The
court’s calculation shall not include the number of days, if any,
that the offender served in the custody of the department of
rehabilitation and correction arising out of any prior offense for
which the prisoner was convicted and sentenced.
See also R.C. 2967.191.
{¶19} Here, after announcing Chester’s sentence at the hearing, the trial court
stated, “I will give you credit for all the time that you spent in my jail towards that sentence.”
(Emphasis added.) Later at sentencing, the trial court reiterated, “Again, I will calculate
the time that you were in our jail and give you credit for that time.” (Emphasis added.)
As set forth in the recitation of facts, the sentencing entry provided Chester with 104 days
of jail-time credit “as stipulated to on the record.” However, we cannot discern a
stipulation as to jail-time credit from the record, and neither party has advanced an
explanation as to why the trial court indicated this was an agreed amount of credit.
{¶20} Chester maintains that the trial court committed plain error by not specifying
the number of days of credit that he was to receive prior to sentencing him. Nonetheless,
the trial court specified that Chester would receive credit for the days he spent in
confinement in the Portage County jail. The record establishes that Chester was released
from the Portage County jail on a $20,000 personal recognizance bond on August 11,
2021, at which point he was picked up by authorities in Cuyahoga County due to an
7
Case No. 2022-P-0060
existing warrant. The record reflects that Chester was returned to the Portage County jail
from the Trumbull Correctional Institute on July 29, 2022, to await sentencing, which
ultimately occurred on August 10, 2022. Thus, there is no indication from the record that
the trial court miscalculated the 104 days of credit for time spent in confinement in the
Portage County jail. Compare State v. Liddy, 2022-Ohio-4282, 202 N.E.3d 172, ¶ 66
(11th Dist.) (where sentencing court stated defendant was entitled to 425 days of jail-time
credit, but sentencing entry stated he was not entitled to jail-time credit because he had
received credit in a different case, the discrepancy necessitated a new sentencing
hearing). Accordingly, no plain error resulted from the trial court’s failure to specify at
sentencing the number of days that Chester would be credited for pretrial confinement in
the Portage County jail.
{¶21} Chester further claims that he is entitled to credit in this case for the full
amount of time between his arraignment on May 21, 2021 and his sentencing on August
10, 2022. In support, Chester relies on State v. Springs, 2d Dist. Clark No. 2022-CA-18,
2022-Ohio-4414, ¶ 9, for the proposition that “‘[i]t is well settled that a “defendant may
accrue jail[-]time credit in multiple cases at the same time, if he or she is held in pretrial
confinement in multiple cases simultaneously.”’” Id. at ¶ 9, quoting State v. Bingham, 2d
Dist. Champaign No. 2021-CA-9, 2021-Ohio-4102, ¶ 17, quoting State v. Pack, 2d Dist.
Montgomery No. 28458, 2020-Ohio-5033, ¶ 38 and State v. Breneman, 2d Dist.
Champaign No. 2015-CA-16, 2016-Ohio-597, ¶ 26.
{¶22} However, “[w]hether jail-time credit accrues simultaneously when a
defendant is in pretrial confinement on multiple cases ordinarily depends on whether he
receives concurrent or consecutive sentences.” State v. Steinmetz, 2d Dist. Greene No.
8
Case No. 2022-P-0060
2019-CA-40, 2020-Ohio-1145, ¶ 11. The Springs case involved jail-time credit where a
trial court ordered a sentence to run concurrently with another sentence. See Springs at
¶ 9. The present case involves consecutive sentences. “‘“When a defendant is
sentenced to consecutive terms, the terms of imprisonment are served one after another.
Jail-time credit applied to one prison term gives full credit that is due, because the credit
reduces the entire length of the prison sentence.”’” Id. at ¶ 12, quoting State v. El-Amin,
10th Dist. Franklin Nos. 17AP-439, 17AP-440, 17AP-441, 2018-Ohio-560, ¶ 12, quoting
State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 22. Moreover,
“[a] defendant is not entitled to jail-time credit while held on bond if, at the same time, the
defendant is serving a sentence on an unrelated case.” See State v. Cupp, 156 Ohio
St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, syllabus.
{¶23} Here, Chester does not establish how any additional time he spent in
pretrial confinement in Cuyahoga County “ar[ose] out of the offense” in the present case.
See R.C. 2929.19(B)(2)(g)(i). Further, the record does not establish the amount of time
that Chester spent in pretrial confinement in Cuyahoga County, the jail-time credit he
received in his Cuyahoga County case, or when he began serving his sentence imposed
in the Cuyahoga County case.
{¶24} For the foregoing reasons, Chester has failed to demonstrate plain error
with respect to the trial court’s failure to inform him of the total amount of jail-time credit
at sentencing. Accordingly, Chester’s second assigned error lacks merit.
{¶25} In his third assigned error, Chester contends:
9
Case No. 2022-P-0060
{¶26} “The trial court committed reversible and plain error by accepting
Defendant’s guilty plea without strictly complying with the requirements contained within
Crim.R. 11(C)(2)(c).”
{¶27} “Crim.R. 11(C) governs the process that a trial court must use before
accepting a felony plea of guilty or no contest.” State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 8. This rule provides, in relevant part:
(2) In felony cases the court * * * shall not accept a plea of
guilty or no contest without first addressing the defendant
personally either in-person or by remote contemporaneous
video in conformity with Crim.R. 43(A) and doing all of the
following:
***
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
{¶28} “A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise
a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial,
(2) the right to confront one’s accusers, (3) the right to compulsory process to obtain
witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and
(5) the privilege against compulsory self-incrimination. When a trial court fails to strictly
comply with this duty, the defendant’s plea is invalid.” Veney at syllabus. A trial court’s
failure to apprise a defendant of these constitutional rights prior to his plea results in plain
error. Veney at ¶ 24.
10
Case No. 2022-P-0060
{¶29} At the change of plea hearing, the trial court engaged in the following
colloquy regarding Chester’s waiver of his constitutional rights:
THE COURT: Okay. By entering this plea of guilty,
you’re giving up your right to a trial by jury.
At that trial, the prosecutor would have to prove beyond
a reasonable doubt each and every element of the charges
against you.
Your Attorney could cross-examine and confront the
witnesses who come in and testify for the State of Ohio, you
could subpoena or compel witnesses, have them come in and
testify for you and you can take the stand at your trial if you
chose to do so. You have a constitutional right not to testify,
but if you wanted to you could. That, along with those rights
to trial, you’re giving up by entering this plea of guilty; do you
understand?
DEFENDANT: Yes.
{¶30} Chester maintains that the trial court did not strictly comply with
constitutional notifications required by Crim.R. 11(C)(2)(c) because the trial court failed
to orally advise him that he was “waiving the privilege against compulsory self-
incrimination” and failed to specifically ask Chester if he understood that, by pleading
guilty, he would be waiving all of his constitutional rights contained within Crim.R.
11(C)(2)(c).
{¶31} Although it is preferred that the trial court use the language contained in
Crim.R. 11(C)(2)(c) during the plea colloquy, the trial court’s failure to do so will not
automatically invalidate a plea. Veney at ¶ 18. “Failure to use the exact language
contained in Crim.R. 11(C), in informing a criminal defendant of his constitutional right to
a trial and the constitutional rights related to such trial * * * is not grounds for vacating a
plea as long as the record shows that the trial court explained these rights in a manner
11
Case No. 2022-P-0060
reasonably intelligible to that defendant * * *.” State v. Ballard, 66 Ohio St.2d 473, 423
N.E.2d 115 (1981), paragraph two of the syllabus.
{¶32} Here, the trial court referred to Chester’s “constitutional right not to testify”
and informed him that he was “giving up” that right, along with “those rights to trial,”
referring to the rights the trial court had just previously enunciated, i.e. a trial by jury,
where the state would bear the burden of proof beyond a reasonable doubt of each
element of the offenses, and where Chester could cross-examine witnesses, compel
witnesses, and testify if he chose to do so. We conclude that the trial court explained the
Crim.R. 11(C)(2)(c) rights in a manner reasonably intelligible to Chester, and further
explained in a manner reasonably intelligible to Chester that by pleading guilty, he was
waiving those rights.
{¶33} Accordingly, Chester’s third assigned error lacks merit.
{¶34} The judgment is affirmed.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
12
Case No. 2022-P-0060