State v. Patterson , 2022 Ohio 1167 ( 2022 )

[Cite as State v. Patterson, 2022-Ohio-1167.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110424
v. :
THOMAS C. PATTERSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 7, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634869-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Timothy R. Troup, Assisting Prosecuting
Attorney, for appellee.
Timothy C. Patterson, pro se.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Thomas C. Patterson (“Patterson”), appeals the
trial court’s decision to resentence him without him being present. For the reasons
set forth below, we affirm.
Procedural and Factual History
The procedural and factual history have been sufficiently set forth in,
State v. Patterson, 8th Dist. Cuyahoga No. 109167, 2020-Ohio-4832, our decision
regarding Patterson’s direct appeal. For purposes of this appeal, we note, on
December 10, 2018, a grand jury returned a ten-count indictment against Patterson
for drug trafficking and other related offenses.
On April 29, 2019, pursuant to a negotiated pleas agreement,
[Patterson] retract[ed] former plea of not guilty and enter[ed] a plea of
guilty to trafficking offense [R.C.] 2925.03(A)(2) [felony two] with
forfeiture specification(s) ([R.C.] 2941.1417) as amended in Count(s) 1
of the indictment. [Patterson] retract[ed] former plea of not guilty and
enter[ed] a plea of guilty to trafficking offense [R.C.] 2925.03A(2)
[felony five] with forfeiture specification(s) ([R.C.] 2941.1417) as
charged in count(s) 3 of the indictment. [Patterson] retract[ed] former
plea of not guilty and enter[ed] a plea of guilty to aggravated menacing
[R.C.] 2903.21 a [misdemeanor one] as charged in Count(s) 6 of the
indictment. [Patterson] retract[ed] former plea of not guilty and
enter[ed] a plea of guilty to driving while under the influence of alcohol
or drugs ([physical control]) [R.C.] 4511.19 (A)(2)(a) [misdemeanor
one] as charged in Count(s) 8 of the indictment. [Patterson] retract[ed]
former plea of not guilty and enter[ed] a plea of guilty to resisting arrest
[R.C.] 2921.33 a [misdemeanor two] m2 as charged in Count(s) 10 of
the indictment.
Id. at ¶ 3.
On May 23, 2019, the trial court sentenced Patterson as follows: (1)
eight years on amended Count 1 and 12 months on Count 3 to run concurrently, (2)
time served on Counts 6 and 8, (3) a mandatory $7,500 fine, (4) a five-year driver's
license suspension that begins upon release, (5) three years of postrelease control,
and (6) court costs. Id. at ¶ 4.
On November 10, 2019, we granted Patterson’s motion for leave to file
a delayed appeal. In his direct appeal, Patterson presented four assignments of
error, one of which, the second, is pertinent to the present appeal. That assignment
of error stated:
The trial court abused its discretion by imposing a mandatory $7,500
fine on Patterson when the court had been informed of Patterson’s
indigence and there was no evidence that Patterson would be able to
pay the fine in the future. R.C. 2929.18(B)(1).
There, we discussed Patterson’s contention that the trial court erred in
imposing a mandatory fine in conjunction with the third assignment of error,
wherein Patterson argued his defense counsel was ineffective for failing to file a
motion to avoid the imposition of the mandatory fine. In that context, we concluded
that there was a reasonable probability that the trial court would have found
Patterson to be indigent and unable to pay the mandatory drug fine of $7,500 had
defense counsel filed the proper motion as the trial court had instructed. Id. at ¶ 29.
Consequently, we remanded the matter to the trial court to conduct a
hearing limited to the determination of indigency and whether the mandatory fine
should be imposed. Id. at ¶ 31.
On remand, on March 16, 2021, the trial court conducted a
resentencing hearing. Patterson was not present at the hearing and had not waived
his right to be in attendance. The trial court determined that Patterson was indigent
and waived the mandatory drug fine of $7,500.
Patterson now appeals and assigns the following sole error for review:
Assignment of Error
The trial court abused its discretion when it held a resentencing hearing
for defendant, Thomas C. Patterson, without him being physically
present and/or him having waived his right to appear in person.
Law and Analysis
In the sole assignment of error, Patterson argues the trial court erred
when it held the resentencing hearing without him being present. Patterson cites
Crim.R. 43(A), which requires a defendant to be present at “every stage of the trial,
including * * * the imposition of sentence * * *,” to support his contention.
Preliminarily, the Confrontation Clause of the Sixth Amendment
provides that “[i]n all criminal prosecutions the accused shall enjoy the right * * * to
be confronted with the witness against him.” The United States Supreme Court has
held that one of the most basic rights guaranteed by the Confrontation Clause is a
defendant’s correlative right to be present in the courtroom at every stage of the trial.
Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
Moreover, Crim.R. 43(A) and Section 10, Article I of the Ohio
Constitution, mandate a defendant’s presence at every stage of the criminal
proceedings. Brooklyn v. Woods, 8th Dist. Cuyahoga No. 103120, 2016-Ohio-1223,
¶ 15, citing State v. McCollins, 8th Dist. Cuyahoga No. 95486, 2011-Ohio-2398, ¶ 7,
citing Crim.R. 43(A) and the Ohio Constitution, Article I, Section 10. (“[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.”). Snyder v.
Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934).
Although there is no Confrontation Clause right at sentencing, the
broad scope and protection offered by Crim.R. 43 embodies the constitutional
guarantee under the Confrontation Clause. State v. Moore, 8th Dist. Cuyahoga No.
6224, 2006-Ohio-816, ¶ 8. This court has held that “resentencing is a critical stage
of criminal proceedings that triggers a defendant’s right to be present under * * *
Crim.R. 43.” State v. Mason, 8th Dist. Cuyahoga No. 107447, 2019-Ohio-1773, ¶ 18.
We find our decision in State v. Jarmon, 8th Dist. Cuyahoga No.
108248, 2020-Ohio-101, instructive to our resolution of the instant matter. Like the
present matter, the appellant in Jarmon also argued that the trial court erred when
it resentenced him without him being present. In Jarmon, we stated:
In the case at hand, it is undisputed that the court resentenced Jarmon
without a hearing and necessarily outside of his presence. Therefore,
we find that the court erred by failing to hold a resentencing hearing at
which Jarmon could have been present. However, although this is
improper, Jarmon’s absence may constitute harmless error when he
suffers no prejudice. See State v. Steimle, 8th Dist. Cuyahoga No.
95076, 2011-Ohio-1071, ¶ 17 (“although the right to be present at all
critical stages of a criminal trial is a fundamental right, a violation of
Crim.R. 43 is not structural and can constitute harmless error where
the defendant suffers no prejudice”).
Id. at ¶ 9.
Here, like Jarmon, although the trial court resentenced Patterson
without him being present, Patterson’s absence may constitute harmless error when
he suffers no prejudice. Id. Also, like Jarmon, in this appeal, Patterson has not
alleged that he was prejudiced by the trial court’s actions. In fact, the trial court
conferred a benefit on Patterson by waiving the mandatory drug fine of $7,500.
Based on the foregoing, we find that the Crim.R. 43(A) violation in this
case is harmless.
Accordingly, we overrule the sole assignment of error.
Judgment affirmed.
It is ordered that 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________
EMANUELLA D. GROVES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR