Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-505583
ATTORNEY FOR APPELLANT Steve W. Canfil Standard Building,
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Assistant County Prosecutor The Justice Center
BEFORE: Blackmon, J., Boyle, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE
(¶ 1} Appellant Joseph T. Wilson appeals from the trial court's resentencing and assigns the following errors for our review:
I. The trial court committed plain error by violating Wilson's constitutional rights and Crim.R. 43 when it conducted a resentencing hearing via video conference without obtaining Wilson's waiver of his right to be physically present at all proceedings.
II. Wilson was denied his constitutional right to effective assistance of counsel at the resentencing hearing.
III. The trial court erred when it "incorporated" a previous proceeding into its decision to reimpose the same sentence.
(¶ 2} Having reviewed the record and pertinent law, we reverse and remand for a new sentencing hearing. The apposite facts follow.
(¶ 3} On July 18, 2008, a jury convicted Wilson of aggravated robbery, felonious assault, and kidnapping. The convictions flowed from an incident in which Wilson, along with five others, robbed and viciously attacked the victim as he walked home following his evening jog. The trial court imposed consecutive sentences of ten years for aggravated robbery, eight years for felonious assault, and seven years for the kidnapping, for a total imprisonment of 25 years.
(¶ 4} Wilson appealed his convictions and sentence. In State v. Wilson, 8th Dist. Cuyahoga No. 91971, 2010-Ohio-1196 ¶Wilson 7"), we held that kidnapping and felonious assault, as well as kidnapping and aggravated robbery, were allied offenses of similar import, and that Wilson did not have a separate animus for the kidnapping. Id. at ¶ 92, 96.
(¶ 5} We also held that felonious assault and aggravated robbery were not allied offenses and, therefore, not subject to merger. Id. at ¶ 97. Consequently, we reversed Wilson's sentence and remanded for a new sentencing hearing where the prosecutor would elect which of the allied offenses he wanted to pursue for sentencing. Id. at ¶ 98.
(¶ 6} The state appealed our decision to the Ohio Supreme Court and argued that the trial court lacked authority on remand to conduct a de novo sentencing hearing. In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, paragraph one of the syllabus ('Wilson IF), the Ohio Supreme Court rejected the state's argument and affirmed our decision. The Ohio Supreme Court specifically held that when a cause is remanded to a trial court to correct an allied-offenses sentencing error, the trial court ...