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Date: 09-16-2020
Case Style:
STATE OF OHIO -vs- JAMES R. WOOD
Case Number: 20CA000010
Judge: Patricia A. Delaney
Court: COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: CHIP MCCONVILLE
Defendant's Attorney:
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{¶5} On April 16, 2018, Defendant-Appellant Wood, along with two other
individuals, stole $1,226.59 in merchandise from a Walmart store located in Knox County.
The Knox County grand jury indicted Wood on one count of theft, a felony in the fifth
degree.
Change of Plea Hearing
{¶6} On March 26, 2020, Wood appeared for a change of plea hearing
conducted by video connection between the Knox County Court of Common Pleas and
the Knox County Jail. (Plea Tr., p. 2). Due to COVID-19, at the time of Wood’s change of
Knox County, Case No. 20CA000010 3
plea hearing, the trial court had declared the Knox County Jail a temporary courtroom
and Wood was at the jail during the hearing. (Id.). Wood signed a “Plea Agreement
Disclosure and Acknowledgement” form in which he acknowledged the jail was serving
as a temporary courtroom and specifically waived his right to be present in the courtroom
under Crim.R. 43. (Form, Mar. 26, 2020, pp. 1-2).
{¶7} Wood asserts the record is not clear regarding the physical location of
defense counsel, the assistant prosecutor, or the trial court during this hearing. However,
the record is clear the trial court asked Wood if he was waiving his right to be physically
present in the courtroom. (Plea Tr., p. 3). Wood waived this right and further
acknowledged the trial court had designated the county jail as a temporary courtroom.
(Id.)
{¶8} Further, the following paragraph on this same form provides in bold-face
type:
Do you understand that the Court is not bound by any discussion,
agreement or recommendation as to sentencing, and that sentencing is
entirely up to me as the Judge to determine your sentence in your case? If
“yes”, knowing that are you still willing to proceed with your guilty plea
today?
(Form, Mar. 26, 2020, p. 2).
{¶9} Wood initialed this statement. (Id.). The Judge repeated this statement
again on the record and Wood acknowledged he wanted to proceed with the plea. (Plea
Tr., pp. 3-4). Thereafter, Wood pled guilty as charged and the trial court accepted his
plea. (Id., p. 11). Wood asked to waive a presentence investigation based on an agreed
Knox County, Case No. 20CA000010 4
recommendation for community control, but the court declined this request and ordered
a presentence investigation. (Id., pp. 13-14).
{¶10} At no point during the change of plea hearing did the trial court advise Wood
how to communicate privately with counsel under the video conferencing provisions of
Crim.R. 43(A)(2)(d). Wood’s counsel did not object to this oversight.
Sentencing Hearing
{¶11} Thereafter, on April 16, 2020, the trial court conducted a sentencing hearing
under the same conditions as the change of plea hearing. (Sentencing Tr., pp. 2-3). Wood
was represented by Attorney Terry Hitchman and the Knox County Public Defender, John
Pyle, was also present. (Id., p. 3). Wood signed and initialed the “Sentencing Agreement
Disclosure and Acknowledgment” form on April 16, 2020. (Form, Apr. 17, 2020, p. 1).
{¶12} This form contained the following statement: “The Defendant, through
counsel, has indicated the intent to waive their right to be present in the courtroom for
sentencing in this case. * * * The Defendant acknowledges the right to be physically
present in the courtroom, pursuant to Cr. R. 43, and hereby waives that right, this 16 day
of April 2020.” (Id.). Attorney Pyle acknowledged Wood’s signature on the record.
(Sentencing Tr., p. 3). At no point during the sentencing hearing did the trial court advise
Wood how to communicate privately with his counsel under the video conferencing
provisions of Crim.R. 43(A)(2)(d). The record contains no objection regarding this
omission.
{¶13} Attorney Hitchman informed the trial court the state and defense counsel
had recommended community control, notwithstanding Wood’s criminal history. (Id., pp.
4-5). The trial court reviewed Wood’s criminal history and sentenced him to eleven
Knox County, Case No. 20CA000010 5
months of incarceration. (Id., pp. 5-7). After the trial court sentenced Wood, Wood
protested that he had not received a community control sentence and stated Attorney
Hitchman told him he would get community control. (Id., p. 8). Attorney Hitchman
addressed the trial court and indicated he had informed Wood the trial court had the
ultimate authority to decide a sentence. (Id., pp. 9- 10).
ASSIGNMENT OF ERROR
{¶14} Wood sets forth one assignment of error for our consideration:
{¶15} “APPELLANT WAS DEPRIVED OF HIS RIGHT TO BE PRESENT AND TO
THE PRESENCE AND ASSISTANCE OF HIS COUNSEL DURING BOTH HIS CHANGE
OF PLEA AND SENTENCING HEARINGS, AND HIS RIGHT TO DUE PROCESS AND
FUNDAMENTALLY FAIR HEARINGS AS REQUIRED BY THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE ONE SECTIONS FIVE, TEN AND SIXTEEN OF THE OHIO CONSTITUTION
AND CRIMINAL RULES 43(A) AND 44.”
ANALYSIS
{¶16} Wood’s appeal focuses on his change of plea and sentencing hearings.
Specifically, he asserts his waiver to be present at both hearings was defective due to the
trial court’s failure to follow Crim.R. 43(A)(2)(d) by not advising him how to confer
confidentially with his attorney at any time during the hearings. We disagree.
Standard of Review
{¶17} At both the change of plea and sentencing hearings, Wood never objected
on the basis that he had a right to be present in the courtroom. In fact, he signed a written
waiver of his right to be present in the courtroom at both hearings. See Form, Mar. 26,
Knox County, Case No. 20CA000010 6
2020, p. 2; Form, Apr. 17, 2020, p. 1. Wood also did not challenge the trial court’s failure
to advise him how to privately communicate with his attorney during the video
conferencing proceedings. As a result, we must review Wood’s assignment of error under
a Crim.R. 52(B) plain error analysis.
{¶18} Under this rule, “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” The rule places the
following limitations on a reviewing court’s determination to correct an error despite the
absence of timely objections at trial: (1) “there must be an error, i.e. a deviation from a
legal rule,” (2) “the error must be plain,” that is an error that constitutes “an ‘obvious’ defect
in the trial proceedings,” and (3) the error must have affected “substantial rights” such
that “the trial court’s error must have affected the outcome of the trial.” State v. Dunn, 5th
Dist. Stark No. 2008-CA-00137, 2009-Ohio-1688, ¶ 89, citing State v. Morales, 10th Dist.
Franklin Nos. 03-A)-318, 03-AP-319, 2004-Ohio-3391, ¶ 19.
{¶19} The decision to correct a plain error is discretionary and should be made
“with the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus.
{¶20} Crim.R. 43(A)(1) requires a defendant to 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.” This Court addressed this point in State v. Wallace, 5th Dist. Richland No.
2020CA0072, 2003-Ohio-4119, ¶ 14. We explained, “[a] defendant has a fundamental
right to be present at all critical stages of his criminal trial. State v. Hill, 73 Ohio St.3d 433,
Knox County, Case No. 20CA000010 7
444, 1995-Ohio-287, 653 N.E.2d 271, citing, Crim.R. 43(A) and Section 10, Article I, Ohio
Constitution.” Further, under United States Supreme Court precedent an accused “is
guaranteed the right to be present at any stage of the criminal proceeding that is critical
to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky
v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
{¶21} However, section (A)(2) of Crim.R. 43 allows remote contemporaneous
video for any proceeding if all of the following apply:
(a) The court gives appropriate notice to all the parties;
(b) The video arrangements allow the defendant to hear and see the
proceeding;
(c) The video arrangements allow the defendant to speak, and to be seen
and heard by the court and all parties;
(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 in
person. Counsel shall be permitted to appear with defendant at the remote
location if requested.
* * *
(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.
{¶22} The State concedes at page 5 of its brief that Wood has satisfied the first
two elements of the plain error analysis (i.e. there was an error and it was plain). This is
Knox County, Case No. 20CA000010 8
based on the fact the trial court did not advise Wood how to communicate privately with
counsel as required by Crim.R. 43(A)(2)(d). However, the state contends this error did
not affect such substantial rights that the error was outcome-determinative. See State v
Henslee, 5th Dist. Muskingum No. CT2017-0009, 2017-Ohio-5786, ¶ 13. (Citation
omitted.) (“In the context of sentencing, outcome-determinative means an error that
resulted in a sentence which is contrary to law.”) Further, “[a] violation of Crim.R. 43 is
not a structural error and can constitute harmless error where the defendant suffers no
prejudice.” (Citations omitted.) State v. Sherels, 8th Dist. Cuyahoga No. 95975, 2011-
Ohio-3392, ¶ 7.
{¶23} Wood does not argue his sentence is contrary to law. Rather, he was
displeased the trial court did not sentence him to community control. (See Sentencing Tr.,
pp. 8, 10-11). Wood asserts the trial court deviated from a legal rule set forth by this Court
in State v. Gray, 5th Dist. Richland No. 2010-CA-0089, 2011-Ohio-4570. In Gray, we
reversed and remanded for a third re-sentencing hearing because Gray’s second resentencing was held by video conference and no waiver of physical presence was ever
executed by Gray either in writing or on the record and no exceptions existed under
Crim.R. 43(B). Id. at ¶ 25. Most distinguishable from the facts here, Gray objected to the
use of video conferencing and asserted his right to be physically present. Id.
{¶24} We find the Gray decision does not support Wood’s argument on appeal.
Wood intentionally waived, in writing and verbally on the record, his right to be present,
in the courtroom, both for the change of plea and sentencing hearings. Wood also did not
object to the trial court’s omission pertaining to Crim.R. 43(A)(2)(d). Finally, neither Wood
nor his counsel, at any time during either hearing, indicated a desire to confer privately.
Knox County, Case No. 20CA000010 9
Under the facts here, we do not see how instructions on how Wood could have conducted
a private conversation with his attorney would have changed the outcome of the sentence
imposed by the trial court. The sentence rendered by the trial court is lawful.
{¶25} We find the facts here almost identical to those reviewed by the Eighth
District Court of Appeals in the Sherels case. In Sherels, appellant expressly waived his
right to be present in the courtroom and agreed to proceed by video conference. State v.
Sherels, 2011-Ohio-3392, at ¶ 6. However, the trial court did not inform appellant on the
record how to communicate privately with his attorney as required by Crim.R. 43(A)(2)(d).
Id. No objection was made on the record concerning this omission. Id. The court of
appeals held:
Appellant is unable to demonstrate plain error in the present case because
he cannot demonstrate that he was prejudiced, in any manner, by the trial
court’s failure to advise him pursuant to Crim.R. 43(A)(2)(d). As noted
above, at no point during the hearing did appellant ask to speak with his
attorney privately. Furthermore, appellant does not present any argument
as to how a private communication with his attorney would have possibly
changed the outcome of the proceedings.
Id. at ¶ 8.
{¶26} Likewise, here, Wood has presented no argument regarding how a private
conversation with his attorney would have changed the outcome of his change of plea
hearing or the sentence ultimately rendered by the trial court. Because we do not find a
violation of Wood’s substantial rights such as to impact the outcome of the sentence
imposed by the trial court plain error does not exist.
Knox County, Case No. 20CA000010 10
No Manifest Miscarriage of Justice Exists
{¶27} Finally, Wood asserts the trial court’s failure to instruct him how to confer
privately with his attorney resulted in a manifest miscarriage of justice because he was
deprived of his constitutionally protected right to assistance of counsel. We find no
manifest miscarriage of justice occurred. Wood contends he would have maintained a not
guilty plea and proceeded to trial had he been properly advised. However, Wood was not
dissatisfied with the proceedings until after the trial court imposed an eleven-month prison
term. At that point, Wood would have had to seek to withdraw his guilty plea after
sentence, which requires a showing of “manifest injustice.” State v. Adames, 5th Dist.
Licking No. 16-CA-85, 2017-Ohio-4058, 91 N.E.3d 326, ¶ 17.
{¶28} The fact that Wood was discontent with the sentence does not demonstrate
manifest injustice. A “change of heart” does not demonstrate manifest injustice where the
change is based on a dissatisfaction with the sentence imposed by the trial court. State
v. Vinson, 8th Dist. Cuyahoga No. 103329, 2016-Ohio-7604, ¶ 44. Therefore, we
conclude no manifest miscarriage of justice occurred.
Knox County, Case No. 20CA000010 11
Outcome: For the foregoing reasons, Wood’s sole assignment of error is overruled
and the judgment of the Knox County Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: