[Cite as State v. McCollins,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95486

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LAWRENCE McCOLLINS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-441307

BEFORE: E. Gallagher, J., Blackmon, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: May 19, 2011 ATTORNEYS FOR APPELLANT 2

Robert L. Tobik Public Defender BY: Erica B. Cunliffe Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Thorin O. Freeman Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Lawrence McCollins (“McCollins”) appeals from the trial court’s

resentencing. McCollins argues the trial court erred when it failed to

acquire a waiver of Crim.R. 43(A) before imposing postrelease control via

video conference, and when it failed to re-afford him the right of allocution.

For the following reasons, we affirm the decision of the trial court.

{¶ 2} On August 20, 2003, a Cuyahoga County Grand Jury charged 3

McCollins with two counts of rape involving a child under the age of 13 and

two counts of kidnapping with sexual motivation specifications. The

charges stemmed from an incident that occurred on July 7, 2003. On

September 23, 2003, McCollins pleaded guilty to one count of rape, with the

element of force language removed; the trial court dismissed all other

charges. On October 31, 2003, the trial court imposed a seven-year prison

sentence. The court found McCollins to be a sexually oriented offender and

indicated “that post release control is part of this prison sentence for the

maximum period allowed for the above felony(s) under R.C. 2967.28.”

{¶ 3} On July 1, 2010, approximately 36 hours prior to his scheduled

release from prison, the trial court conducted a new sentencing hearing.

McCollins appeared by video conference from Lebanon Correctional

Institution and the trial court sentenced him to the same seven year term of

incarceration. The court then advised McCollins of the five-year,

mandatory, postrelease control that would be imposed upon him. The trial

court found McCollins to be a sexually oriented offender and advised him of

the applicable sex offender requirements, before concluding the proceedings

and wishing him luck.

{¶ 4} McCollins appeals from the order of resentencing, raising the

two assignments of error contained in the appendix to this opinion. 4

{¶ 5} In his first assignment of error, McCollins argues that the trial

court’s imposition of postrelease control by video conference violated Crim.R.

43(A) and his due process right to be physically present at every stage of his

criminal proceeding. McCollins further argues that, although R.C.

2929.191(C) permits the offender to appear at the hearing by video

conference upon the motion of the court, the prosecuting attorney, or the

offender, an offender must still waive his right to physically appear. In

response, the state of Ohio (“State”) argues that even if physical presence is

required by Crim.R. 43(A), McCollins forfeited all but plain error by failing to

raise this issue at the hearing, and there existed no plain error here.

{¶ 6} In support of his argument, McCollins cites to State v. Moore,

Cuyahoga App. No. 86224,

, which held in part, that, in

absence of a waiver, sentencing a defendant by video conference violates

Crim.R. 43(A)’s physical presence requirement and requires reversal.

However, Moore, is distinguishable from the present case as the defendant in

Moore, timely objected to appearing by video conference. Accordingly, we

agree with the State that McCollins has waived all but plain error and

further find that McCollins has failed to demonstrate any plain error, as the

outcome of the resentencing would not clearly have been otherwise, but for

the error. Plain error does not exist unless it can be said that, but for the 5

error, the outcome of the trial clearly would have been otherwise. State v.

Long (1978),

,

.

{¶ 7} It is axiomatic that a criminal defendant has a fundamental

right to be present at all critical stages of his criminal trial. Section 10,

Article I, Ohio Constitution, Crim.R. 43(A); State v. Hale,

,

,

. “An accused’s absence, however, does not

necessarily result in prejudicial or constitutional error.” State v. Davis,

,

,

. “[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.”

Thus, the defendant’s absence in violation of Crim.R. 43(A), although

improper, can constitute harmless error where he suffers no prejudice. State v. Williams

(1983),

,

, see, also, State v. Armas, Clermont App. No.

CA2004-01-007,

(a violation of Crim.R. 43(A) is not a structural error;

therefore, it is subject to the harmless error analysis).

{¶ 8} Initially, we note that McCollins’s rights were adequately protected.

McCollins was represented by counsel and cannot show that his counsel was defective in any

manner. Furthermore, McCollins suffered no prejudice by not being physically present and

being present only by remote video. The trial court resentenced McCollins to the same

sentence as originally ordered, and the five-year period of postrelease control ordered by the 6

court was mandatory. McCollins does not claim that his physical presence could have

changed the outcome of the resentencing, and we fail to see how his physical presence could

have made any difference. Therefore, we find that a fair and just hearing was not in any

way thwarted by McCollins’s physical absence and his rights were adequately represented by

counsel at the hearing.

{¶ 9} McCollins next raises the constitutional argument that the Ohio legislature has

improperly equated physical presence with presence via video conference equipment in

violation of his due process rights. See, R.C. 2929.191(C), which permits the offender to

appear at the hearing by video conference upon the motion of the court, the prosecuting

attorney, or the offender. However, as stated above, McCollins failed to object to his

presence at resentencing by video conferencing. “Failure to raise at the trial court level [the]

issue of constitutionality of a * * * statute or its application, although issue was apparent at

the time of trial, * * * constitutes a waiver of such issue and a deviation from this State’s

orderly procedure; therefore, issue need not to be heard for first time on appeal. State v.

Awan (1986),

,

, at syllabus.

{¶ 10} Based on the foregoing, McCollins’s first assignment of error is overruled.

{¶ 11} In his second assigned error, McCollins argues the trial court erred in

proceeding to sentencing without first affording him the right of allocution. We find this

argument to lack merit. 7

{¶ 12} Crim.R. 32(A) provides that before imposing sentence the court shall “afford

counsel an opportunity to speak on behalf of the defendant and address the defendant

personally and ask if he or she wishes to make a statement in his or her own behalf or present

any information in mitigation of punishment.”

{¶ 13} “[A] trial courts failure to address the defendant at sentencing is not

prejudicial in every case.” State v. Campbell,

,

,

, citing State v. Reynolds,

,

,

,

(finding an omission of allocution harmless error because the defendant had made an unsworn

statement to the jury and sent a letter to the judge, and defense counsel had made a statement

to the judge on the defendants behalf). See, also, State v. Arroyo, Cuyahoga App. No.

90369,

.

{¶ 14} Here, it is uncontested that defendants convictions statutorily required the

imposition of postrelease control and that the original sentence omitted this mandatory

component of his sentence. It is equally without dispute that on the date of resentencing,

defendant was already scheduled to be released within 36 hours. Furthermore, defendant

does not dispute the States representation that he had on previous occasions addressed the

court, including by way of a motion for judicial release. The error of the court, by not

personally addressing defendant or inquiring whether he wished to speak in mitigation at this

resentencing is harmless considering all of the facts. Nothing he could have said would 8

have changed the inevitable; defendant was nearly finished serving his prison term and the

trial court had no discretion but to impose the mandatory postrelease control component of

defendants sentence. See, Arroyo.

{¶ 15} McCollins’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of 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.

EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR 9

Appendix

Assignments of Error:

{¶ 16} “I. Imposing post-release control by video conference in the absence of a written or oral waiver violates Crim.R. 43(A) and appellant’s due process right to be physically present at every stage of his criminal proceeding.”

{¶ 17} “II. The trial court erred in sentencing appellant without affording him his right of allocution under Criminal Rule 32(A)(1).”