Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Williams

Court of Appeals of Ohio, Twelfth District, Clermont

August 19, 2019

STATE OF OHIO, Appellee,
v.
JAMES W.D. WILLIAMS IV, Appellant.

          CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2017CR000533

          D. Vincent Faris, Clermont County Prosecuting Attorney, for appellee.

          Craig A. Newburger, for appellant

          OPINION

          M. POWELL, JUDGE.

         {¶ 1} Appellant, James W.D. Williams IV, appeals his sentence in the Clermont County Court of Common Pleas for receiving stolen property.[1]

          {¶ 2} In February 2018, appellant pled guilty to two fifth-degree felony counts of receiving stolen property in two separate cases, Case No. 2017 CR 0533 ("2017 Case") and Case No. 2018 CR 0016 ("2018 Case"). The trial court subsequently scheduled a joint sentencing hearing for March 27, 2018, at 9 a.m. The record indicates that the sentencing hearing did not start until 9:32 a.m. because appellant was late.

         {¶ 3} At the hearing, appellant was represented by Attorney Jon Paul Rion in the 2017 Case and by Attorney Mike Kennedy in the 2018 Case. Both attorneys had the opportunity to review appellant's presentence-investigative report ("PSI"). Attorney Rion presented mitigating evidence in the 2017 Case; Attorney Kennedy followed suit in the 2018 Case. Following appellant's allocution, the trial court sentenced appellant to 11 months in prison on each count. As the trial court was making the requisite findings for consecutive sentences, Attorney Rion asked permission to interrupt the proceedings. The trial court declined the request and completed the consecutive sentence findings, thereby sentencing appellant to an aggregate 22-month prison term. As the trial court was imposing restitution in the 2017 Case, Attorney Rion once again interrupted and asked to be excused from the sentencing hearing to attend a scheduled conference call with a federal judge at 10 a.m. The trial court advised the parties of its intent to complete the sentencing. With appellant's consent, Attorney Rion was excused and the sentencing hearing continued with appellant being represented by Attorney Kennedy. The trial court imposed restitution in the 2017 Case and advised appellant of the applicable postrelease control issues in both cases. At the conclusion of the sentencing hearing, the trial court asked Attorney Kennedy if he had anything to say. After conferring with appellant, Attorney Kennedy stated he had nothing further to add.

         {¶ 4} Appellant did not file a direct appeal. However, on September 18, 2018, we granted appellant's motion to file a delayed consolidated appeal in both cases. Between July 2018 and September 2018, appellant filed numerous motions, including to vacate his sentence and be resentenced. On September 19, 2018, the trial court construed appellant's motions to vacate his sentence and be resentenced as postconviction relief petitions and denied them without a hearing on the basis of res judicata. The trial court further denied all other motions. We subsequently upheld the trial court's denial of appellant's motions and postconviction relief petitions. State v. Williams, 12th Dist. Clermont Nos. CA2018-09-069 and CA2018-09-070, 2019-Ohio-1835.

         {¶ 5} We now consider appellant's delayed appeal, which raises two assignments of error.

         {¶ 6} Assignment of Error No. 1:

         {¶ 7} THE TRIAL COURT ERRED BY CONTINUING SENTENCING OF APPELLANT ON TRIAL CASE NO. 2017CR533, WHEN APPELLANT'S COUNSEL WAS NO LONGER PRESENT.

         {¶ 8} Appellant argues the trial court erred in excusing Attorney Rion from the sentencing hearing. Appellant asserts that (1) his consent to excusing Attorney Rion was not knowing, intelligent, and voluntary because he was not afforded sufficient time to consider the decision, (2) appellant was not qualified to proceed pro se in the 2017 Case once Attorney Rion was excused, and (3) had Attorney Rion remained for the conclusion of the sentencing hearing, he "may have asked for reconsideration of the sentence by providing other mitigating information or may have reminded the trial court of any omitted notifications."

         {¶ 9} The record indicates that after Attorney Rion was excused from the sentencing hearing with appellant's consent, the hearing continued with appellant being represented by Attorney Kennedy in both cases. Thus, appellant did not proceed pro se in the 2017 Case. By the time Attorney Rion left the hearing, he had had the opportunity to review the PSI and had presented mitigating evidence in the 2017 Case; appellant had been afforded his right of allocution; the trial court had already sentenced appellant to 11 months in prison on each count; the trial court had completed making the requisite consecutive sentence findings; and the trial court was in the midst of imposing restitution in the 2017 Case. Furthermore, at the conclusion of the sentencing hearing, the trial court asked Attorney Kennedy if he had anything to say. After conferring with appellant, Attorney Kennedy stated he had nothing further to add. In light of the foregoing, we find that appellant "has failed to demonstrate how representation by substitute counsel at his sentencing hearing * * * prejudicially affected his rights." State v. Harrison, 2d Dist. Montgomery No. 21548, 2007-Ohio-2421, ¶ 49.

         {¶ 10} Though appellant claims Attorney Rion could have provided additional mitigating evidence to persuade the trial court to reconsider its sentence, appellant does not specify what that other mitigating evidence could or would have been. The respective offenses in the 2017 and 2018 Cases were committed only a few months apart and appellant's relevant personal circumstances for purposes of sentencing were the same in both cases. Appellant's suggestion he may have received a lesser sentence in the 2017 Case had Attorney Rion remained for the conclusion of the sentencing hearing is speculative at best. As for appellant's claim that Attorney Rion could "have reminded the trial court of any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.