[Cite as State v. Dunivant,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee, : Hon. Sheila G. Farmer, J. : Hon. Julie A. Edwards, J. v. : : CRAIG DUNIVANT, : Case No. 2011CA00160 : Defendant-Appellant. : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2003CR0092

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 30, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DEREK J. LOWRY Stark County Prosecutor 116 Cleveland Avenue, NW, Suite 800 Canton, OH 44702 By: RONALD MARK CALDWELL Assistant Prosecuting Attorney 110 Cenetral Plaza, South, Suite 510 Canton, OH 44702 Farmer, J.

{¶ 1} On April 23, 2003, appellant, Craig Dunivant, was sentenced to an

aggregate term of eighteen years to life in prison. A nunc pro tunc was filed on May 20,

2003. Appellant was not properly notified about postrelease control.

{¶ 2} On December 1, 2010, the trial court held a resentencing hearing to

properly advise appellant of postrelease control. This hearing was conducted via a

video link to appellant's prison facility. The resentencing was journalized on same date.

{¶ 3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 4} "THE TRIAL COURT ERRED BY HOLDING A DE NOVO SENTENCING

HEARING WITHOUT THE DEFENDANT BEING PRESENT IN THE COURTROOM."

II

{¶ 5} "THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL."

I, II

{¶ 6} Appellant claims he was denied his constitutional right to be physically

present at his resentencing hearing and his trial counsel was deficient in not informing

him of this right. We disagree.

{¶ 7} Appellant was resentenced under State v. Bezak,

,

, overruled on other grounds, State v. Fischer,

,

, and State v. Singleton,

,

. The

resentencing was done via a video link to the prison facility. Appellant argues this procedure constitutes structural error and his trial counsel was deficient for failing to

object. We note appellant did not sign a waiver regarding the video procedure.

{¶ 8} Crim.R. 43(A) states the following:

{¶ 9} "(A) Defendant's presence

{¶ 10} "(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.

{¶ 11} "(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:

{¶ 12} "(a) The court gives appropriate notice to all the parties;

{¶ 13} "(b) The video arrangements allow the defendant to hear and see the

proceeding;

{¶ 14} "(c) The video arrangements allow the defendant to speak, and to be seen

and heard by the court and all parties;

{¶ 15} "(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.

{¶ 16} "(e) The proceeding may involve sworn testimony that is subject to cross

examination, if counsel is present, participates and consents.

{¶ 17} "(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."

{¶ 18} The standard for ineffective assistance of counsel is set out in State v.

Bradley (1989),

, paragraphs two and three of the syllabus, certiorari

denied (1990),

. Appellant must establish the following:

{¶ 19} "2. Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel's

performance. (State v. Lytle [1976],

,

,

;

Strickland v. Washington [1984],

,

,

,

followed.)

{¶ 20} "3. To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different."

{¶ 21} In addressing this issue on an identical fact pattern, our brethren from the

Tenth District found the claimed error not to be structural error, but found the issue

should be reviewed under the plain error doctrine: {¶ 22} "***In the absence of objected error, we review the question under a plain

error analysis. 'It is a general rule that an appellate court will not consider any error

which counsel for a party complaining of the trial court's judgment could have called but

did not call to the trial court's attention at a time when such error could have been

avoided or corrected by the trial court.' State v. Glaros (1960),

,

, paragraph one of the syllabus. 'Constitutional rights may be lost as finally

as any others by a failure to assert them at the proper time.' State v. Childs (1968),

,

.

{¶ 23} "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.' However,

an alleged error is plain error only if the error is 'obvious,' State v. Barnes,

,

, 2002–Ohio–68, and where, but for the error, the outcome of

the proceeding would clearly have been otherwise. State v. Long (1978),

,

, paragraph two of the syllabus.

{¶ 24} "Appellant contends that the trial court's imposition of post-release control

when appellant was present only by video conference violates both Crim.R. 43(A) and

his constitutionally guaranteed due process right to be physically present at every stage

of his criminal proceeding.

{¶ 25} "For the time in question, Crim.R. 43(A)(2) provides for participation of a

defendant via video appearance only when the defendant waived the right to be

physically present and did so in writing or on the record under Crim.R. 43(A)(3).

{¶ 26} "It remains axiomatic 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; Crim .R. 43(A) ('defendant must be physically present at every stage of the

criminal proceeding and trial'); State v. Hale,

,

,

2008–Ohio–3426, ¶100. However, on these facts, we agree with the state that

appellant has failed to demonstrate plain error because the outcome of the proceeding

would not clearly have been otherwise but for the purported error. The 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.)

quoting

Snyder v. Massachusetts (1934),

,

,

,

overruled on other grounds Mallory v. Hogan (1964),

,

,

. State v. Davis,

,

, 2008–Ohio–2, ¶90.

'An accused's absence***does not necessarily result in prejudicial or constitutional

error.'

A defendant's absence, therefore, even where the notice and waiver rules of

Crim.R. 43(A)(2) and (3) 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. State v. Warren,

10th Dist. No. 10AP–376, 2010–Ohio–5718, ¶7, citing State v. Williams (1983),

, 285–87,

.

{¶ 27} "Appellant cannot demonstrate that the outcome would have been

different had he been physically present. Appellant was represented by counsel and

had all other due process guarantees fulfilled. Appellant was notified of his right to

appeal and responded that he intended to do so, both on the re-sentencing and his Tier

III sex offender reclassification. Appellant has not demonstrated plain error because he

has not articulated sufficient prejudice arising from either a purported lack of notice or from his participation via a video teleconference from his institution." State v. Mullins,

Franklin App. No. 09AP-1185,

, ¶6-11.

{¶ 28} We concur with this analysis. In addition, we note under State v. Fisher,

,

, "[t]he scope of an appeal from a resentencing

hearing in which a mandatory term of postrelease control is imposed is limited to issues

arising at the resentencing hearing."

{¶ 29} Any error in the video procedure is harmless. Harmless error is "[a]ny

error, defect, irregularity, or variance which does not affect substantial rights shall be

disregarded." Crim.R. 52(A). Overcoming harmless error requires a showing of undue

prejudice or a violation of a substantial right. Appellant has not demonstrated any

prejudice in the video procedure or that the outcome would have been different.

{¶ 30} Assignments of Error I and II are denied.

The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.

Judgment affirmed. Hoffman, P.J. and Edwards, J. concur.

s/ Sheila G. Farmer_______________

s/ William B. Hoffman______________

s/ Julie A. Edwards _______________

JUDGES IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, : : Plaintiff-Appellee, : : v. : JUDGMENT ENTRY : CRAIG DUNIVANT, : : Defendant-Appellant. : CASE NO. 2011CA00160

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.

s/ Sheila G. Farmer_______________

s/ William B. Hoffman______________

s/ Julie A. Edwards _______________

JUDGES