State v. Jarmon

[Cite as State v. Jarmon, 2020-Ohio-101.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108248
v. :
JUSTIN JARMON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 16, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-618637-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian Lynch, Assistant Prosecuting
Attorney, for appellee.
Prugh Law, L.L.C., and Leigh S. Prugh, for appellant.
PATRICIA ANN BLACKMON, P.J.:
Justin Jarmon (“Jarmon”) appeals his 30-year prison sentence and
assigns the following error for our review:
I. The trial court erred in failing to hold a hearing for appellant
Justin Jarmon to attend to impose his modified sentence.
Having reviewed the record and pertinent law, we affirm the trial
court’s judgment. The apposite facts follow.
On November 16, 2017, Jarmon pled guilty to four counts of
attempted murder and other associated offenses in connection with a gang-related
drive-by shooting that injured two children on October 4, 2016. On December 21,
2017, the court sentenced Jarmon to 35 years in prison, which included two
consecutive five-year drive-by shooting firearm specifications. On direct appeal,
this court held that the sentence violated R.C. 2929.14(B)(1)(c)(iii), which “limits
imposing a single five-year sentence on the ‘drive-by’ specification when the
underlying offenses are based on the same act or transaction.” State v. Jarmon, 8th
Dist. Cuyahoga No. 106727, 2018-Ohio-4710, ¶ 27.
Specifically, this court found as follows: “the record indicates that
Jarmon ‘rolled down the window and fired over five shots towards [the alleged rival
gang members.]’ Accordingly, we conclude that the multiple shots fired at the rival
gang members were the same transaction.” Id. at ¶ 28. This court remanded the
case to the trial court for “vacation of one of the five-year drive-by specifications.”
Id. at ¶ 35.
On January 24, 2019, the trial court issued a journal entry on remand,
the pertinent parts of which follow.
This court hereby vacates the imposition of the consecutive sentence as
to only the 5 year firearm specification (ORC 2941.146) in count 16.
Thus, the sentence re-calculation after execution of the judgment
pursuant to opinion 18-106727 is as follows: * * * The court imposes a
prison sentence * * * of 30 year(s). * * * Count 16: * * * The 5 year
firearm specification merges with the 5 year firearm specification in
count 2. * * *.
It is from this journal entry that Jarmon appeals.
Jarmon argues that the court erred by failing to hold a hearing before
issuing the journal entry regarding his “modified sentence.” As Jarmon claims in
his appellate brief, “[t]his appeal chiefly concerns the legal issue of a defendant’s
right to be present at all stages of a criminal proceeding, regardless of how
inconsequential the impending court action may seem.”
Jarmon supports his argument by citing Crim.R. 43(A), which states
in part that “the defendant must be physically present at every stage of the criminal
proceeding and trial, including * * * imposition of sentence * * *.” The Ohio Supreme
Court recently addressed this issue in State v. Wilks, 154 Ohio St. 3d 359, 2018-Ohio-
1562, 114 N.E.3d 1092, ¶ 215.
An accused has a fundamental right to be present at all critical stages
of his criminal trial. Article I, Section 10, Ohio Constitution; Crim.R.
43(A). An accused’s absence, however, does not necessarily result in
prejudicial or constitutional error. “[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.” (Emphasis
added.) Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S. Ct. 330,
78 L. Ed. 674 (1934).
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. 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”).
On appeal, Jarmon does not allege that he was prejudiced in any way
by the court’s actions. In fact, Jarmon’s sentence was reduced by five years pursuant
to this court’s limited remand for “vacation of one of the five-year drive-by
specifications.” Upon review, we find that the Crim.R. 43(A) violation in this case is
harmless. Accordingly, Jarmon’s sole assigned error is overruled.
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. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS;
LARRY A. JONES, SR., J., CONCURS
IN JUDGMENT ONLY