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State v. Tabor

Court of Appeals of Ohio, Fourth District, Jackson

November 16, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
JARRON TABOR, Defendant-Appellant.

         CRIMINAL APPEAL FROM COMMON PLEAS COURT

          Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Public Defender, Columbus, Ohio, for appellant.

          Justin Lovett, Jackson County Prosecuting Attorney, and Nick Wille, Jackson County Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          ABELE, J.

         {¶ 1} This is an appeal from a Jackson County Common Pleas Court judgment of conviction and sentence. The trial court found Jarron Tabor, defendant below and appellant herein, guilty of possession of cocaine in violation of R.C. 2925.11(A). The court sentenced appellant to serve nine years in prison. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE JACKSON COUNTY COURT OF COMMON PLEAS UNCONSTITUTIONALLY EXCLUDED A PORTION OF THE PUBLIC FROM JARRON TABOR'S PLEA AND SENTENCING HEARINGS."
SECOND ASSIGNMENT OF ERROR:
"TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE UNCONSTITUTIONAL CLOSURE OF JARRON TABOR'S PLEA AND SENTENCING HEARINGS."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ASSESSED, AND THE CLERK OF COURTS COLLECTED, UNAUTHORIZED COURT COSTS."

         {¶ 2} On December 4, 2014, the grand jury returned an indictment that charged appellant with first-degree-felony possession of cocaine in violation of R.C. 2925.11(A), along with a major drug offender specification. Appellant entered a not guilty plea.

         {¶ 3} The trial court subsequently set the matter for trial. A notice, signed by the court's assignment commissioner, advised the parties of the trial date and further stated:

Appropriate attire is required: No pajamas, shorts, tank tops, hats miniskirts, or halter tops. No children shall be brought to the Courthouse for your hearing. Our staff are "NOT BABYSITTERS." All cell phones are to be turned off before entering the Courtroom.

         Appellant did not object to any of the provisions contained in the notice.

         {¶ 4} On the day set for trial, the parties advised the court that they had reached a plea agreement. The state agreed to dismiss the major drug offender specification and appellant agreed to plead guilty to first-degree-felony possession of cocaine. The parties did not agree upon a sentencing recommendation, but instead, they agreed that each would be free to argue any lawful sentence.

         {¶ 5} After appellant entered his guilty plea, the court set the matter for a sentencing hearing. The notice that advised the parties of the sentencing hearing date repeated the same information concerning attire, cell phones, and children:

Appropriate attire is required: No pajamas, shorts, tank tops, hats miniskirts, or halter tops. No children shall be brought to the Courthouse for your hearing. Our staff are "NOT BABYSITTERS." All cell phones are to be turned off before entering the Courtroom.

         Again, appellant did not object to any of the provisions.

         {¶ 6} After considering the arguments of counsel, the trial court sentenced appellant to serve nine years in prison and ordered him to pay court costs. This appeal followed.

         I

         {¶ 7} Appellant's first and second assignments of error both involve the same constitutional issue-appellant's right to a public trial. For ease of discussion, we combine our discussion of the assignments of error.

         {¶ 8} In his first assignment of error, appellant asserts that the trial court's exclusion of children from his plea and sentencing hearings violated his right to a public trial and constitutes a structural error that mandates reversal. Appellant alternatively argues that the court plainly erred by excluding children from the hearings.

         {¶ 9} The state argues that the trial court did not issue an order that excluded anyone from attending appellant's plea or sentencing hearings, but instead the notice that excluded children from the courtroom contained the court's assignment commissioner's signature. The state thus asserts that appellant cannot show that the trial court issued an order that excluded anyone from appellant's plea or sentencing hearing. Alternatively, the state contends that the court's exclusion of children from the hearings constitutes neither plain nor structural error because any exclusion of children from the courtroom is, at most, a trivial closure that does not impact appellant's right to a public trial. The state argues that "the language in the hearing notices is properly understood not as language closing the court, but as language regulating the decorum of the court."

         {¶ 10} In his second assignment of error, appellant argues that trial counsel rendered ineffective assistance of counsel by failing to object to the notice that prohibited children from attending his hearings. He asserts that counsel's failure to object constitutes deficient performance that prejudiced the outcome. Appellant claims that if counsel had objected, the trial court would have been required to state its reason on the record for excluding children. Appellant argues that the record fails to establish any reason for excluding children from the courtroom. He thus asserts that an objection would have caused the court to allow children to attend his hearings.

         {¶ 11} The state also contends that even if trial counsel performed deficiently, appellant cannot establish that the outcome of the proceedings would have been different if the trial court had permitted children to attend the hearings.

         A RIGHT TO PUBLIC TRIAL

         {¶ 12} "'The right to a public trial is an important, fundamental constitutional guarantee of both the United States and Ohio Constitutions.'"[1] State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger, 28 Ohio St.3d 418, 420, 504 N.E.2d 37 (1986), quoting State v Lane, 60 Ohio St.2d 112, 119, 397 N.E.2d 1338 (1979), and citing State v Hensley, 75 Ohio St 255, 264, 79 NE 462 (1906) "[O]pen trials ensure respect for the justice system and allow the press and the public to judge the proceedings that occur in our Nation's courts" Weaver v Massachusetts, ___ U.S. ___, 137 S.Ct. 1899, 1913, 198 L.Ed.2d 420 (2017) "'[T]he public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings'" Waller v Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), fn 4, quoting Estes v Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J, concurring). "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed.2d 682 (1948). Thus, the public-trial "guarantee ' * * * is a cornerstone of our democracy which should not be circumvented unless there are extreme overriding circumstances.'" Unger, 28 Ohio St.3d at 420 quoting Lane, 60 Ohio St.2d at 119.

         {¶ 13} Before a court may circumvent a defendant's public-trial right by closing the courtroom, the party requesting closure "must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Waller, 467 U.S. at 48.

         {¶ 14} Additionally, we observe that

[a] trial judge has authority to exercise control over the proceedings and the discretion to impose control over the proceedings. Nonetheless, the abridgement of a defendant's right to a public trial may occur only when necessary, and any closure must be narrowly drawn and applied sparingly.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶51. Thus, although the right to a public trial is not absolute, exceptions are rare. Weaver, 137 S.Ct. at 1909 (explaining that although exceptions to the public-trial right "should be rare, a judge may deprive a defendant of his right to an open courtroom by making proper factual findings in support of the decision to do so").

         B PUBLIC-TRIAL VIOLATION IS STRUCTURAL ERROR

         {¶ 15} A violation of a defendant's public-trial right constitutes a structural error. Weaver, 137 S.Ct. at 1908; Drummond at ¶50, citing Waller, 467 U.S. at 49-50, fn.9. A structural error "'affect[s] the framework within which the trial proceeds, ' rather than being 'simply an error in the trial process itself.'" Weaver at 1907, quoting Arizona v. Fulminante,499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Thus, a structural error that a defendant objects to at trial ordinarily mandates "'automatic reversal, '" "regardless of the error's 'actual effect on the outcome.'" Id. at 1910, quoting Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The ...


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