[Cite as State v. Benvenuto,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, CASE NO. 1-23-51 PLAINTIFF-APPELLEE,

v.

JAMES A. BENVENUTO, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2016 0348

Judgment Reversed and Cause Remanded

Date of Decision: November 25, 2024

APPEARANCES:

Dustin M. Blake for Appellant

John R. Willamowski, Jr. for Appellee Case No. 1-23-51

MILLER, J.

{¶1} Defendant-appellant, James A. Benvenuto (“Benvenuto”), appeals the

May 23, 2023 judgment of resentencing and the June 27, 2023 judgment entry

denying a second resentencing hearing. For the reasons that follow, we reverse.

{¶2} This case arises from a series of marijuana-related offenses. This court

recited much of the factual and procedural background of this case in Benvenuto’s

direct appeal, and we will not duplicate those efforts here. See State v. Benvenuto,

(3d Dist.).

{¶3} Relevant to this appeal, in 2016, Benvenuto was indicted on 58 drug-

related charges, to-wit: 53 counts of trafficking in marijuana in violation of R.C.

2925.03(A)(1), (C)(3)(a), fifth-degree felonies; a single count of trafficking in

marijuana in violation of R.C. 2925.03(A)(1), a third-degree felony; two counts of

possession of marijuana in violation of R.C. 2925.11(A), (C)(3)(e), third-degree

felonies; a single count of possession of hashish in violation of R.C. 2925.11(A),

(C)(7)(d), a third-degree felony; and a single count of engaging in a pattern of

corrupt activity in violation of R.C. 2923.32(A)(1), (B)(1), a first-degree felony.

Some of the counts included specifications for forfeiture of money and property

pursuant to R.C. 2941.1417(A).

{¶4} On July 5, 2017, Benvenuto appeared for a change-of-plea hearing

where he withdrew his former pleas of not guilty and entered no-contest pleas to all

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of the counts and specifications in the indictment. The trial court accepted

Benvenuto’s pleas and found him guilty of the counts and specifications in the

indictment.

{¶5} At the sentencing hearing on August 21, 2017, the trial court found that

none of the charges merged and sentenced Benvenuto to 12 months in prison for

each of counts 1 through 53, 36 months in prison for each of counts 54, 55, 56, and

57, and 11 years in prison for Count 58. The trial court ordered the sentences in

Counts 1 through 5, Counts 6 through 10, Counts 11 through 15, Counts 16 through

20, Counts 21 through 25, Counts 26 through 30, Counts 31 through 35, Counts 36

through 40, Counts 41 through 45, Counts 46 through 50, and Counts 51 through 53

to be served concurrently to each other. The trial court then ordered the sentences

in each group of concurrent sentences to be run consecutively to each other and

consecutive to the prison terms in Counts 54, 55, 56, 57, and 58 for an aggregate

total of 34 years. The trial court also ordered forfeiture of the currency and property

specified in the indictment and ordered Benvenuto to pay a $5,000 mandatory fine

on each of Counts 54, 55, 56, and 57.

{¶6} Benvenuto filed a direct appeal wherein he raised five assignments of

error. Specifically, he argued: (1) the trial court erred by overruling his motion to

suppress evidence where the evidence allegedly demonstrated that officers entered

a constitutionally-protected space without a search warrant; (2) the trial court erred

by overruling his motion to suppress evidence where the search warrant was

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allegedly defective; (3) his conviction for engaging in a pattern of corrupt activity

was not supported by sufficient evidence; (4) the trial court erred by failing to merge

his marijuana-possession charges; and (5) Benvenuto’s 34-year prison sentence

violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

In an opinion issued on June 11, 2018, we overruled Benvenuto’s assignments of

error and affirmed his convictions and sentence. Benvenuto,

. Benvenuto filed an appeal with the Supreme Court of Ohio; however, that court

declined jurisdiction. State v. Benvenuto,

,

.

{¶7} Additionally, Benvenuto filed a petition for postconviction relief which

the trial court dismissed without a hearing on the basis of being filed untimely.

Benvenuto appealed the trial court’s dismissal of his petition, and we affirmed the

trial court’s decision in a judgment entry filed on June 21, 2021. (Doc. No. 114).

{¶8} Benvenuto petitioned the United States District Court for the Northern

District of Ohio for a writ of habeas corpus. In that petition, Benvenuto argued that

the state court proceedings violated his federal rights in four ways. First, Benvenuto

argued the trial court violated the Double Jeopardy Clause by failing to merge

certain offenses. Second, Benvenuto argued that his engaging-in-a-pattern-of-

corrupt-activity conviction was supported by insufficient evidence. Third,

Benvenuto argued that his 34-year prison sentence constituted cruel and unusual

punishment and violated his federal due-process rights. Finally, Benvenuto argued

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that the state court erred by not suppressing evidence from a warrantless search.

Benvenuto v. Turner,

, *1 (N.D. Ohio Mar. 30, 2023).

{¶9} On March 30, 2023, the federal district court conditionally granted

Benvenuto’s petition for a writ of habeas corpus. The court reasoned that “the

Double Jeopardy Clause required the state court to merge Benvenuto’s third-degree

marijuana-possession charges.” Id. at *4. The court found Counts 55 and 56

(possession of edible marijuana and possession of vegetative marijuana) should

have been merged during Benvenuto’s original sentencing. The court stated that

“Benvenuto may apply for release unless Ohio properly resentences Benvenuto

under the Double Jeopardy Clause within 120 days.” Id. at *1, 6.

{¶10} The federal district court denied Benvenuto’s insufficient-evidence

claim and dismissed with prejudice Benvenuto’s claim relating to the suppression

of evidence. Id. at *6. Finally, the federal district court dismissed Benvenuto’s

proportionality claims without prejudice. In its order, the federal district court cited

the newly-available remedy provided by the Supreme Court of Ohio in its decision

in State v. Gwynne, which held that when a sentencing court makes the consecutive-

sentencing findings under R.C. 2929.14(C)(4) “it must consider the number of

sentences that it will require to be served consecutively along with the defendant’s

aggregate sentence that will result” and that “upon a de novo review of the record,

an appellate court may reverse or modify a defendant’s consecutive sentences—

including the number of consecutive sentences imposed—when it clearly and

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convincingly finds that the record does not support the trial court’s findings.” State

v. Gwynne (“Gwynne IV”),

, vacated and superseded on

reconsideration, State v. Gwynne (“Gwynne V”),

. The federal

district court reasoned that Benvenuto “must exhaust newly available state

remedies” relating to the proportionality claim before the federal court could

consider Benvenuto’s federal claims.

. The court specifically stated,

“Benvenuto can, and must, renew this claim to the Ohio courts to exhaust the claim.”

{¶11} On May 2, 2023, after being made aware of the federal district court

decision, the state trial court appointed new counsel for Benvenuto.1 The following

day, the trial court assigned the matter for resentencing and the assignment

commissioner issued an assignment notice to the State and Benvenuto’s appointed

counsel.

{¶12} A resentencing hearing was held on May 22, 2023. Benvenuto

appeared remotely from prison via video conference and was represented by

appointed counsel. At the hearing, the trial court merged Counts 55 and 56. The

1 On April 27, 2023, the trial court filed a journal entry appointing the local public defender’s office as appellate counsel for Benvenuto. On May 2, 2023, the trial court filed an amended journal entry appointing an individual not associated with the public defender’s office as counsel for Benvenuto, and this is the individual we have referenced as “appointed counsel” throughout the opinion. We do note that both journal entries, which are identical other than the name of the counsel appointed, reference “[t]he defendant being brought into Court” to request the trial court appoint him counsel. (Doc. Nos. 117, 119). Although this language could suggest that Benvenuto twice appeared before the trial court to request counsel, the record is void of any transport orders, scheduled hearings, affidavits of indigency, or any other suggestion that Benvenuto actually appeared before the court. Rather, the language referencing Benvenuto “being brought into Court” appears to be part of the trial court’s form language which it did not adapt for the instant case.

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State elected to proceed on Count 55. The trial court then resentenced Benvenuto

on all counts in the same manner as it had at the initial sentencing hearing, with the

exception of merging Counts 55 and 56 for an aggregate sentence of 31 years in

prison.

{¶13} The following day, May 23, 2023, Benvenuto’s retained counsel, who

had not been served with the scheduling notice for the resentencing hearing, filed a

motion to conduct a resentencing pursuant to the order in the federal habeas corpus

petition. In the motion, retained counsel claimed to have only learned of the court

resentencing hearing through Benvenuto’s family. Later that same day, the trial

court filed its judgment entry of resentencing.

{¶14} On May 24, 2024, apparently in response to retained counsel’s motion,

the trial court assigned the matter for another resentencing hearing and the

assignment commissioner issued an assignment notice to the State and Benvenuto’s

retained counsel. The following day, a second assignment notice was issued to the

same individuals changing the date for the resentencing hearing to July 6, 2023.

{¶15} On June 27, 2023, the State filed a response in opposition to

Benvenuto’s motion for resentencing. Several hours later, the trial court filed a

judgment entry denying Benvenuto’s motion for another resentencing hearing and

vacating the resentencing hearing set for July 6, 2023.

{¶16} On July 26, 2023, Benvenuto filed a notice of appeal. He raises the

following assignments of error for our review:

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First Assignment of Error

The trial court violated Appellant’s right to due process by failing to provide notice and opportunity for the resentencing and denied Defendant’s right to counsel of his choosing in violation of the Fifth, Six, and Fourteenth Amendments.

Second Assignment of Error

The trial court’s imposition of consecutive sentences amounting to a 31 year prison sentence for marijuana charges was clearly and convincingly contrary to law and unsupported by the record and violates Appellant’s rights under the Eight Amendment and Due Process Clause of the Fourteenth Amendment.

Third Assignment of Error

Remand is appropriate in light of Issue 2 and Appellant’s marijuana charges.

{¶17} In Benvenuto’s first assignment of error, he argues that the May 22,

2023 resentencing hearing violated his due process rights in several ways.

Specifically, Benvenuto argues that the trial court violated his due process rights by:

failing to notify Benvenuto’s retained counsel of record of the resentencing hearing,

conducting the resentencing hearing without Benvenuto’s retained counsel, and by

allowing Benvenuto to appear by video at the sentencing hearing without first

executing a valid waiver. We agree.

{¶18} “[P]rocedural due process under both the Ohio and United States

Constitutions requires, at a minimum, an opportunity to be heard when the state

seeks to infringe a protected liberty or property right.” State v. Cowan, 2004-Ohio-

4777, ¶ 8, citing Boddie v. Connecticut,

(1971). “Further, the

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opportunity to be heard must occur at a meaningful time and in a meaningful

manner.”

citing Mathews v. Eldridge,

(1976).

{¶19} Benvenuto argues that his due-process rights were violated when

appointed counsel, rather than Benvenuto’s retained counsel represented him at the

resentencing hearing. The Sixth Amendment to the United States Constitution

states that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to

have the Assistance of Counsel for his defense.” “‘[W]hile the right to select and

be represented by one’s preferred attorney is comprehended by the Sixth

Amendment, the essential aim of the Amendment is to guarantee an effective

advocate for each criminal defendant rather than to ensure that a defendant will

inexorably be represented by the lawyer whom he [or she] prefers.’” State v.

Johnson,

(4th Dist.), quoting Wheat v. U.S.,

(1988).

{¶20} “[One] element of [the constitutional right to counsel] is the right of a

defendant who does not require appointed counsel to choose who will represent

him.” United States v. Gonzalez-Lopez,

(2006). “If a defendant

has the ability to retain a qualified attorney, the Sixth Amendment generally protects

his choice of counsel.” State v. Ross,

(9th Dist.), citing Caplin

& Drysdale, Chartered v. United States,

(1989). “‘A court

commits structural error when it wrongfully denies a defendant his counsel of

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choice, so a defendant need not demonstrate further prejudice.’” Id. at ¶ 5, quoting

State v. Miller,

(9th Dist.), citing

.

{¶21} “[T]he ‘erroneous deprivation of the right to counsel of choice, “with

consequences that are necessarily unquantifiable and indeterminate, unquestionably

qualifies as ‘structural error.’”’” State v. Chambliss,

, quoting

Gonzalez-Lopez at 150, quoting Sullivan v. Louisiana,

(1993). “This is because ‘[d]ifferent attorneys will pursue different strategies with

regard to investigation and discovery, development of the theory of defense,

selection of the jury, presentation of the witnesses, and style of witness examination

and jury argument. And the choice of attorney will affect whether and on what

terms the defendant cooperates with the prosecution, plea bargains, or decides

instead to go to trial. In light of these myriad aspects of representation, the

erroneous denial of counsel bears directly on the “framework within which the trial

proceeds”—or indeed on whether it proceeds at all.’”

quoting

, quoting Arizona v. Fulminante,

(1991).

{¶22} Here, the record indicates that retained counsel represented Benevento

in his direct appeal to this court and the subsequent appeal to the Supreme Court of

Ohio imploring the Court to grant jurisdiction. (Doc. No. 85). Retained counsel

then represented Benvenuto in his petition for postconviction relief filed in the trial

court and the ensuing appeal to this court. Importantly, retained counsel represented

Benvenuto in his petition to the federal district court for a writ of habeas corpus,

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which caused the matter to be returned to the trial court for resentencing. Indeed,

no attorney, other than Benvenuto’s retained counsel, filed any documents on

Benvenuto’s behalf or entered a notice of appearance until the trial court appointed

counsel on May 2, 2023. Nothing in the record indicates that Benvenuto’s retained

counsel was no longer in the case, and the record does not demonstrate that

Benvenuto requested to have counsel appointed.2 Nonetheless, rather than notifying

retained counsel who was successful in having the matter returned to the trial court

for resentencing, the trial court inexplicably appointed new counsel for Benvenuto.

{¶23} At the May 22, 2023 sentencing hearing, Benvenuto was represented

by appointed counsel. The transcript of the resentencing hearing indicates that

Benvenuto did not indicate to the trial court that he was or wished to be represented

by his retained counsel, and Benvenuto’s appointed counsel indicated that he had

the opportunity to confer with Benvenuto prior to the commencement of the

resentencing hearing. (May 22, 2023 Tr. at 1-2). Further, appointed counsel

indicated he had reviewed the federal district court order. (Id. at 2).

{¶24} The record indicates that the trial court, State, and appointed counsel

proceeded with the resentencing hearing with a perception that the resentencing

hearing was for the limited purpose of merging Counts 55 and 56 of the indictment.

2 The record indicates that the attorney who originally represented Benvenuto during the pretrial, plea, and original sentencing proceeding was also privately retained.

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Yet, the trial court proceeded to resentence Benvenuto on each of the original

counts.

{¶25} We note that the federal court order granting Benvenuto’s petition for

a writ of habeas corpus specifically referenced Gwynne IV, which held that when

making consecutive-sentencing findings, the trial court must “consider the number

of sentences that it will require to be served consecutively along with the

defendant’s aggregate sentence.” Gwynne IV,

; Turner,

, at *5-6. Specifically, the federal court stated Benvenuto “can,

and must, renew [the proportionality] claim to the Ohio courts to exhaust the claim.”

. Yet, although Benvenuto’s appointed counsel did ask for a reduced

sentence, he did not reference Gwynne nor make a sentence proportionality

argument at the resentencing hearing in spite of the federal district court’s

guidance.3

{¶26} Nonetheless, after the resentencing hearing, but before the judgment

entry of resentencing was filed, Benvenuto’s retained counsel filed a motion for a

resentencing hearing, and, the trial court did, indeed, set the matter for resentencing

and serve the State and Benvenuto’s retained counsel with notice of the scheduled

3 Although State v. Gwynne,

, was binding at the time of the resentencing hearing, that decision was vacated in State v. Gwynne,

(“Gwynne V”). In Gwynne V, the Supreme Court of Ohio granted the State’s motion for reconsideration and held that “[t]he plain language of R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s consecutive-sentence findings, and the trial court’s findings must be upheld unless those findings are clearly and convincingly not supported by the record.” Gwynne V at ¶ 5. See also State v. Glover,

. Accordingly, the state court remedies and the proportionality arguments contemplated by the federal court may no longer be available to Benvenuto.

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resentencing hearing. However, the trial court subsequently vacated the

rescheduled hearing on the basis that a resentencing hearing had been conducted on

May 22, 2023 and Benvenuto was represented by (appointed) counsel at that

hearing.

{¶27} Benvenuto also argues that the trial court erred by requiring him to

appear for resentencing via video without obtaining a waiver of personal

appearance. Crim.R. 43(A)(1) provides that “the defendant must be physically

present at every stage of the criminal proceeding and trial, including . . . the

imposition of sentence[.]” However, pursuant to Crim.R. 43(A)(3) “[a] court may

conduct . . . a sentencing proceeding . . . with a defendant appearing remotely if the

defendant has waived in writing or orally on the record the right to be physically

present and agreed to appear by remote presence.” Here, the record indicates that

Benvenuto appeared for the resentencing hearing remotely, but the record does not

contain a written or oral waiver.4 However, “‘“[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 sic.) State v. Blevins, 2019-

Ohio-2744, ¶ 37 (4th Dist.), quoting State v. Hale,

, ¶ 100, quoting

Snyder v. Massachusetts,

(1964), overruled on other grounds

4 Benvenuto did not object to the remote hearing, and Benvenuto’s appointed counsel indicated that he had an opportunity to speak privately with Benvenuto prior to the commencement of the hearing. We note that the court never inquired of Benvenuto if there was an objection to appointed counsel.

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by Malloy v. Hogan,

(1964). Standing alone, the trial court’s failure

to obtain a waiver from Benvenuto may very well have been harmless error. But,

the lack of a conversation with Benvenuto regarding his personal appearance at the

resentencing hearing also foreclosed an opportunity to review with Benvenuto the

issue of retained counsel being present with him.

{¶28} After reviewing Benvenuto’s arguments in concert with the record, we

find that the trial court committed structural error. Although each of the myriad of

abnormalities and errors may not have, individually, constituted a violation of

Benvenuto’s due-process rights, we find that, in the totality of the circumstances,

their cumulative effect results in reversible error. In summary, the trial court

conducted the resentencing hearing without first notifying or communicating with

Benvenuto’s retained counsel. Nothing in the record shows Benvenuto requested

court appointed counsel to represent him at the resentencing hearing. The trial court

failed to obtain a waiver of personal appearance from Benvenuto. Court-appointed

counsel failed to raise a proportionality argument even though the federal district

court dismissed that claim without prejudice in order for the matter to be addressed

by the state courts.

{¶29} Accordingly, we sustain Benvenuto’s first assignment of error and

remand the matter to the trial court for a full resentencing hearing. Based on our

disposition of Benvenuto’s first assignment of error, Benvenuto’s second and third

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assignments of error are rendered moot, and we therefore will not address them. See

State v. Preston,

(10th Dist.); App.R. 12(A)(1)(c).

{¶30} Having found error prejudicial to the appellant herein in the particulars

assigned and argued, we reverse the judgment of the Allen County Court of

Common Pleas and remand for further proceedings consistent with this opinion.

Judgment Reversed and Cause Remanded

ZIMMERMAN and BALDWIN, J.J., concur.

**Judge Craig R. Baldwin of the Fifth District Court of Appeals, sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.

/jlm

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