State v. Maldonado

[Cite as State v. Maldonado, 2023-Ohio-522.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110655
v. :
ELVIN MALDONADO, :
Defendant-Appellant. :
JOURNAL ENTRY AND DECISION EN BANC
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 23, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634404-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Glen Ramdhan, Assistant Prosecuting
Attorney, for appellee.
Eric M. Levy, for appellant.
SEAN C. GALLAGHER, J.:
Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland
State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court sua
sponte determined that State v. Jarmon, 8th Dist. Cuyahoga No. 108248, 2020-
Ohio-101, conflicts with State v. Howard, 8th Dist. Cuyahoga No. 87490, 2006-
Ohio-6412, ¶ 7, on a dispositive point of controlling authority. En banc review is
necessary to maintaining harmony in the law of this district. See, e.g., Midland
Funding L.L.C. v. Hottenroth, 2014-Ohio-5680, 26 N.E.3d 269, ¶ 1 (8th Dist.)
(resolving the conflict between two disparate lines of authority interpreting
procedural rules through an en banc proceeding).
Decision of the En Banc Court:
In this en banc proceeding, we must resolve a straightforward
question of law in order for the panel to resolve the merits of the underlying appeal:
Does a defendant have a right to be present at a hearing, or other proceeding, under
Crim.R. 43(A), when a case is remanded for resentencing to vacate and delete any
aspect of a sentence? We continue to adhere to the principle established in Howard.
I. Scope of the Conflict
It has long been held that “‘a defendant’s presence in court is not
required every time judicial action is taken to correct a sentence.’” United States v.
Clark, 816 F.3d 350, 355 (5th Cir.2016), quoting United States v. Erwin, 277 F.3d
727, 730 (5th Cir.2001). Crim.R. 43(A), or any other statutory or constitutional
provision for that matter, does not establish a right for a defendant to be present at
any proceeding upon remand that vacates, deletes, or otherwise modifies any
portion of a sentence, punishment, penalty, or other criminal sanction, without
imposing any additional burdens upon the defendant. Unless a sentencing
modification creates a more onerous sanction, there is no procedural, statutory, or
constitutional right entitling the defendant to be present at any proceeding, much
less a formal hearing, resulting in that sentencing modification.
Even where the appellate mandate suggests or implies more than
amending a sentencing entry must be done by the trial court, such as when the
mandate includes a reference to the generic term “resentencing,” a de novo
resentencing of the entire case or particular count is not required, or even permitted
as a matter of law. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d
381, ¶ 15 (“[O]nly the sentences for the offenses that were affected by the appealed
error are reviewed de novo; the sentences for any offenses that were not affected by
the appealed error are not vacated and are not subject to review.” (Emphasis
added.)). No matter what language or generic phrasing is used in a remand order,
the appellate court cannot require or authorize a trial court to act in a manner that
is inconsistent with the law.
As a result, although a “remand for resentencing” generally
contemplates a de novo resentencing, that is required only if the trial court adds a
punishment or otherwise increases the burden of the sanction in the sentencing
entry. State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128
N.E.3d 222, ¶ 11; State v. Mitchell, 11th Dist. Portage No. 2019-P-0105, 2020-Ohio-
3417, ¶ 48. In other words, even in situations in which a sentencing hearing is
erroneously required by the appellate court in cases in which the remand is limited
to vacating or deleting punishments from an aggregate sentence, the relevant
question underlying this en banc proceeding is whether an offender maintains some
procedural, statutory, or constitutional right to be present at that hearing or other
proceeding. By answering this question in both the affirmative and negative,
Howard and Jarmon conflict.
In Howard, the offender’s direct appeal resulted in the reversal of his
conviction for burglary, requiring the trial court to correct the sentencing entry upon
remand. Howard, 8th Dist. Cuyahoga No. 87490, 2006-Ohio-6412, at ¶ 2-3. The
remainder of the sentences imposed for other offenses, all of which were to be served
concurrent to each other and the vacated conviction, were maintained. Id.According to Howard, in response to the defendant’s claim that Crim.R. 43(A)
afforded him a right to be present at any proceedings that occurred upon that
remand, no new sentencing hearing was required because no sentence was being
imposed. Id. at ¶ 6, 8. “Vacating the burglary sentence leaves appellant, practically
speaking, in the same situation as before - serving five years in prison. No ‘new’
sentence was imposed; rather, part of his sentence was taken away, and appellant
cites to no authority that affords him the right to be present for this.” (Emphasis
added.) Id. at ¶ 8. As a result, Howard stands for the proposition that although
Crim.R. 43(A) preserves a right for a defendant to be present at every stage of the
trial proceeding, the rule does not extend to situations in which proceedings are
conducted upon remand for the sole purpose of deleting one aspect of an aggregate
sentence. Id. at ¶ 6, 8.
The panel in Jarmon concluded otherwise. Upon a remand ordering
“the vacation of one of the five-year drive-by specifications” following a direct
appeal, the trial court reissued a sentencing entry in part vacating and then deleting
the five-year sentence previously imposed for that specification pursuant to the
appellate mandate. Jarmon, 8th Dist. Cuyahoga No. 108248, 2020-Ohio-101, at
¶ 4-5. All other sentences were maintained as required, and no sentencing hearing
was conducted. Id. In an appeal from that proceeding, the defendant claimed a
right under Crim.R. 43(A) to be present at a sentencing hearing to remove the
reversed sanction. Id. at ¶ 8. The panel agreed based exclusively on Crim.R. 43(A),
concluding that under those circumstances “the [trial] court erred by failing to hold
a resentencing hearing at which Jarmon could have been present.” Id. at ¶ 9.
Although it was ultimately concluded that any error would be harmless, the panel,
relying on Crim.R. 43(A), nonetheless held that a defendant has the right to be
present at a hearing for the purposes of vacating and then deleting a portion of an
aggregate sentence reversed in the direct appeal. Id. This holding conflicts with
Howard at ¶ 6-8. We cannot adopt Jarmon as the law of this district.
II. Jarmon is Overruled
Howard’s legal conclusion is in line with the Ohio Supreme Court’s
more recent pronouncement. In Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128
N.E.3d 222, at ¶ 10-11, the Ohio Supreme Court concluded that Crim.R. 43(A) does
not provide a defendant the right to be present at a sentencing hearing when
portions of a final aggregate sentence are simply vacated or deleted upon remand
from a direct appeal. Id. As the Ohio Supreme Court concluded, “[t]he fact that [the
trial court] deleted a punishment distinguishes this case from [all] cases in which
punishment was added; in the latter situation, trial courts must hold a de novo
resentencing hearing on the additional portion of the sentence.” (Emphasis added.)
Marsh at ¶ 10. The implication is that conducting a de novo hearing with the
defendant present is not required to delete, vacate, reduce, or otherwise maintain
an aggregate punishment under Crim.R. 43(A). Id. at ¶ 11. Although Marsh was
decided with respect to postrelease control sanctions, its conclusion was more
expansive; when a trial court deletes a “punishment,” Crim.R. 43(A) is not
implicated and, therefore, no resentencing hearing is required that would trigger the
defendant’s right to be present. Id. at ¶ 7, 11.
In State ex rel. Vigil v. Cuyahoga Cty. Common Pleas Court, 8th Dist.
Cuyahoga No. 109840, 2020-Ohio-4571, ¶ 9, 11 (“Vigil”), the panel recognized the
implications of Marsh. As this court has concluded, when a panel’s remand order
dictates “[c]ase remanded to the trial court for resentencing,” as the remand was
ordered expressly stated in State v. Vigil, 8th Dist. Cuyahoga No. 103940, 2016-
Ohio-7485, ¶ 47 (“Vigil I”), the trial court’s reissuance of a final entry of conviction
only deleting the vacated sentences “complied with the appellate court’s decision
and order” without triggering the defendant’s presence under Crim.R. 43(A). Vigil
at ¶ 11. It was, therefore, concluded that “[i]n cases where a penalty is removed, a
defendant’s presence is not required and no resentencing hearing is necessary.”
Accord Howard, 8th Dist. Cuyahoga No. 87490, 2006-Ohio-6412, at ¶ 8.
Howard and Vigil are not mere outliers but are based on or are
extensions of established precedent. State ex rel. Ellis v. Burnside, 8th Dist.
Cuyahoga No. 103469, 2015-Ohio-5432 (defendant had no right to be conveyed to
the trial court for a resentencing hearing to vacate a sentence reversed upon the
direct appeal), citing State ex rel. Strothers v. Turner, 79 Ohio St.3d 272, 680 N.E.2d
1238 (1997); State v. Ellis, 8th Dist. Cuyahoga No. 101603, 2015-Ohio-1642, ¶ 12 (on
remand from a direct appeal in which a sentence is vacated, Crim.R. 43(A) is not
implicated and the defendant’s presence is not required to modify the final entry of
conviction to delete the reversed sentence); see also State v. McCullough, 6th Dist.
Huron No. H-21-008, 2022-Ohio-2178, ¶ 19 (vacating convictions reversed on the
direct appeal did not implicate Crim.R. 43 when the trial court reissued the
sentencing entry to delete the references to the overturned convictions leaving the
remaining convictions intact); State v. Marks, 7th Dist. Monroe No. 868, 2002-
Ohio-6267, ¶ 20-24 (Crim.R. 43(A) is implicated only if a sentence is modified by
adding a punishment); State v. Mitchell, 11th Dist. Portage No. 2019-P-0105, 2020-
Ohio-3417, ¶ 48 (concluding, based on Marsh, that “a trial court [is] only required
to hold a de novo resentencing hearing [(requiring the defendant’s presence)] if it
added a punishment in the sentencing entry.” (Emphasis sic.))
Jarmon did not discuss the implications of Marsh with respect to the
scope of Crim.R. 43(A), much less as it pertains to the vacation and deletion of
sentences or other punishments, sanctions, or penalties upon remand. Further,
Jarmon failed to address the fact that Crim.R. 43(A) only guarantees a right to be
present at the “imposition of sentence.” The procedural rule is silent as to a right to
be present when vacating or deleting sentences that do not create a more onerous
criminal sanction. Crim.R. 43(A) does not establish the defendant’s right to be
present at a proceeding intending to remove, reduce, or maintain any portion of an
aggregate sentence. Inasmuch as Jarmon concluded that under Crim.R. 43(A) a
defendant maintains a right to be present for a sentencing hearing conducted solely
for the purpose of vacating or deleting a portion or the entirety of a sentence,
punishment, sanction, or penalty, the decision is overruled.
We recognize that Crim.R. 43(A) serves at least in part to protect a
defendant’s due process rights under the Ohio and federal Constitutions. An
accused’s absence from the trial proceedings, however, does not necessarily result
in the finding of constitutional error. State v. Frazier, 115 Ohio St.3d 139, 2007-
Ohio-5048, 873 N.E.2d 1263, ¶ 139. The defendant’s presence is a condition of the
right to due process “‘to the extent that a fair and just hearing would be thwarted by
his absence, and to that extent only.’” (Emphasis sic.) Id., quoting Snyder v.
Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934). There are
no constitutional due process prohibitions against overruling Jarmon. See, e.g.,
United States v. Blyden, 210 Fed.Appx. 928, 930 (11th Cir.2006) (although a
defendant has the constitutional right to be present at the imposition of a sentence,
that right does not extend to being present at reductions to a final sentence). A fair
and just proceeding is not thwarted by a defendant’s absence at proceedings solely
intended to delete or vacate any aspect of a criminal sanction. That defendant in
that situation could not impact the result of such a proceeding, which in this context
is expressly limited to adhering to the appellate mandate to vacate the entirety, or a
portion, of a sentence, sanction, penalty, or other punishment, and to remove such
from the final entry of conviction that remains valid for all other offenses. See Marsh
at ¶ 10.
III. Conclusion
As a result of the foregoing analysis, we answer the en banc question
in the negative and hereby overrule Jarmon. Under Crim.R. 43(A), a defendant’s
presence is not required at any proceeding solely intended to vacate or delete any
portion of a sentence, punishment, penalty, or other criminal sanction upon remand
from a direct appeal.
______________________
SEAN C. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J.; MARY J. BOYLE, FRANK DANIEL CELEBREZZE, III,
EILEEN T. GALLAGHER, EMANUELLA D. GROVES, KATHLEEN ANN
KEOUGH, MICHAEL JOHN RYAN, and MICHELLE J. SHEEHAN, JJ., CONCUR;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY;
LISA B. FORBES and MARY EILEEN KILBANE, JJ., DISSENT.
Decision of the Merit Panel:
Elvin Maldonado appeals the trial court’s correction of his final entry
of conviction to reflect the deletion of any registration requirements imposed under
Sierah’s Law and a five-year sentence imposed on a “drive by shooting” firearm
specification that were vacated in a direct appeal. For the following reasons, the
convictions are affirmed.
Maldonado was indicted in an eight-count indictment as follows:
Count 1 of attempted murder, a felony of the first degree in violation of R.C. 2923.02
and R.C. 2903.02(A); Counts 2 and 3 of felonious assault, felonies of the second
degree in violation of R.C. 2903.11(A)(1); Counts 4, 5, 6, and 7 of felonious assault,
felonies of the second degree in violation of R.C. 2903.11(A)(2); and Count 8 of
discharge of a firearm on or near prohibited premises, a felony of the first degree in
violation of R.C. 2923.162(A)(3). Each count had a one- and three-year firearm
specification as well as a five-year “drive by shooting” firearm specification.
Following a jury trial, Maldonado was found not guilty of attempted
murder and each of the one- and three-year firearm specifications, but guilty on all
other charges. Counts 2, 3, and 8 merged for sentencing, and the state elected to
proceed with sentencing on Count 8. The court sentenced Maldonado to five years
in prison for the “drive by shooting” firearm specification to be served prior to and
consecutively to four years in prison on Count 8 as well as five years in prison to be
served prior to and consecutively to four years in prison on Counts 4, 5, 6, and 7 each
to be served concurrently to the nine years on Count 8 for a total prison term of nine
years in prison. In addition, the trial court required Maldonado to register as a
violent offender following his release from prison pursuant to Sierah’s Law.
Upon remand from State v. Maldonado, 8th Dist. Cuyahoga No.
108907, 2021-Ohio-1724, in which the panel vacated the registration requirements
imposed under Sierah’s Law and a five-year sentence imposed on a “drive by
shooting” firearm specification, the trial court issued a corrected sentencing entry
reflecting the aggregate sentence following the decision in the direct appeal, in effect
maintaining the aggregate term of imprisonment imposed at the original sentencing
hearing but decreasing the overall sanction through vacating the notification
requirements. Maldonado appeals the issuance of the corrected sentencing entry,
advancing two assignments of error.
In the first assignment of error, Maldonado claims the trial court
erred by failing to conduct a sentencing hearing, at which Maldonado’s presence was
required under Crim.R. 43(A).
This issue was resolved by this court through the en banc proceedings.
It is undisputed that Maldonado’s aggregate term of imprisonment was not
impacted by the deletion of the vacated firearm specification and removal of the
notification requirement under Sierah’s Law decreased the overall sentencing
burden. The first assignment of error is overruled based on the analysis presented
in the en banc portion of this opinion. Under Crim.R. 43(A), a defendant’s presence
is not required at any proceeding solely intended to vacate or delete any portion of
a sentence, punishment, penalty, or other criminal sanction upon remand from a
direct appeal. The trial court did not err in issuing a corrected sentencing entry
following the Maldonado remand.
In the second assignment of error, Maldonado claims that “[t]he trial
court erred when it did not include in the calculation of credit for time served on
resentencing all time served in prison prior to Appellant being resentenced on
June 18, 2021.” In other words, it appears Maldonado is claiming that the trial court
is required to “make sure that [he] received credit for all time he was confined on all
concurrent counts” up to the issuance of the corrected entry of conviction pursuant
to State v. Christian, 159 Ohio St.3d 510, 2020-Ohio-828, 152 N.E.3d 216, ¶ 24.
In Christian, the Ohio Supreme Court concluded that upon remand
for a de novo resentencing, in which the reversed sentences were originally
concurrent to one another but imposed consecutively following de novo
resentencing on those affected counts, the offender is entitled to have his time served
in prison on the reversed sentences count toward the new aggregate sentence, but
only as to the counts actually affected by the direct appeal. Id., citing North Carolina
v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It must be
recognized that Christian appears to supplement R.C. 2967.191(A), reduction of
prison term for related days of confinement, which does not instruct the trial court
to calculate any time the offender serves in the custody of the department of
rehabilitation and correction (“ODRC”) and requires the trial court and the ODRC
to conduct separate calculations that comprise the total time-served calculation.
State v. Collier, 8th Dist. Cuyahoga No. 110222, 2021-Ohio-3202, ¶ 11, citing R.C.
2967.191(A). According to Collier, upon remand for the imposition of new sentences
the trial court conducts the days-of-confinement calculation under R.C. 2967.191(A)
for all confinement before prison. Id. The ODRC then separately calculates any time
the offender served within its custody to add to the trial court’s total; otherwise,
there would be the risk of double counting the offender’s time because the ODRC
does not determine whether inaccuracies exist in the trial court’s days-of-
confinement calculation. Id., citing State ex rel. Fraley v. Ohio Dept. of Rehab. &
Corr., 161 Ohio St.3d 209, 2020-Ohio-4410, 161 N.E.3d 646, ¶ 17.
Collier, despite its reliance on the unambiguous statutory language,
appears to conflict with Christian. Under the holding of Christian, without any
reference to R.C. 2967.191(A), when imposing a new sentence for an offense on
remand, the “trial court must order that a defendant receive full credit for any
punishment that the defendant previously served for that offense[,]” even if that
includes time the offender spent in the custody of ODRC. Id. at ¶ 24. Collier,
following the statutory language, concluded otherwise. Whether Christian’s
analysis survives the plain reading of R.C. 2967.191(A) is a question beyond the
scope of the current appeal.
Christian is limited in scope and only applies to situations in which
sentences imposed upon certain counts are reversed or vacated and remanded for a
de novo resentencing on those affected counts — the “affected counts” being the
actual sentence reversed in the direct appeal. See id. In simplistic terms, when
prison sentences are reversed or vacated in a direct appeal, there is no longer any
prison sentence for that count. The prison portion of the sentence upon that affected
count only comes into existence at the time of the de novo resentencing. Upon that
resentencing, the trial court must account for any time previously served on that
particular count up to the imposition of the new sentence of imprisonment, but only
with respect to those counts actually affected by the direct appeal. See Christian,
159 Ohio St.3d 510, 2020-Ohio-828, 152 N.E.3d 216.
In this case, the remand from Maldonado did not affect any of the
counts for which Maldonado is currently serving time in prison — the sole issue on
remand was to delete a concurrent term and a reporting requirement. Christian
does not apply. Maldonado received credit recognizing his served term of
confinement prior to the imposition of sentences at the original sentencing hearing.
Since Maldonado affirmed all convictions that Maldonado is currently serving, he is
not entitled to a new calculation of the credit. Maldonado’s current argument would
in effect double count his prison time on convictions that were not impacted by
Maldonado.
Having presented no other argument for review, the second
assignment of error is overruled.
Maldonado’s convictions are 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 appeal 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.
_______________________________
SEAN C. GALLAGHER, PRESIDING JUDGE
JAMES A. BROGAN, J.,* CONCURS;
LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY
*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court
of Appeals.)