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7th District affirms second resentence in murder case
TRACEY BLAIR
Legal News Reporter
Published: December 14, 2020
A Mahoning County murder defendant argued his due process and Crim.R. 43 rights were violated when he was not physically present at his resentencing hearing.
The state argued that although the trial court did not obtain a waiver under Crim.R. 43, the error did not rise to the level of plain error.
The 7th District Court of Appeals affirmed the sentence, finding Aubrey Toney failed to demonstrate the outcome of the jury trial would have been different had he been physically present.
Toney was resentenced April 12, 2018, for murder, two counts of felonious assault and related firearm specifications. The issue raised in the appeal was whether his rights were violated by appearing at the hearing via teleconference.
Toney was convicted of the murder of Thomas Repchic and the felonious assault of Jacqueline Repchic for events that transpired Sept. 25, 2010. He was sentenced to 29 years to life in prison.
On appeal, the 7th District affirmed the jury verdict, reversed the sentence, and remanded the matter for a new sentencing hearing after holding the trial court failed to make the statutorily mandated consecutive sentence findings in the judgment entry and at the sentencing hearing.
An initial resentencing hearing was held on July 12, 2016. The trial court sentenced Toney to the same sentence. He appealed the resentencing order and argued the trial court improperly imposed mandatory consecutive sentences and failed to properly make the R.C. 2929.14(C)(4) findings within its sentencing entry.
Finding merit with that argument, the 7th District vacated the consecutive sentences, and remanded once again for resentencing on the consecutive sentence issue. The court again imposed the same sentence.
Toney argued his case was similar to the Eighth Appellate District case, State v. Kemp, 8th Dist. Cuyahoga No. 100426, 2014-Ohio-3414, where the appellate court found reversible error when the defendant appeared for resentencing via teleconference rather than being physically present.
The state argued Toney did not object to his teleconference presence and could not demonstrate the outcome would have been different had he attended the resentencing in person.
Seventh District Judge Carol Ann Robb acknowledged the Ohio Constitution provides a criminal defendant a fundamental right to be present at all critical stages of his criminal trial, and that Crim.R. 43(A) extends the constitutional right of presence to physical presence except under certain conditions, such as a waiver.
“Clearly, the trial court did not fully comply with the mandates of Crim.R. 43(A). Appellant was not physically present at the resentencing, and the record is devoid of any indication that he waived his right to be physically present,” Robb said in her 3-0 opinion. “There is no written waiver, and at the resentencing hearing, there was no express indication that appellant was waiving his right to be physically present.
“That said, the resentencing hearing transcript does indicate that many of the requirements of Civ.R. 43 were followed. Defense counsel indicated at the start of the hearing that appellant was present by teleconference and they were given the opportunity to speak privately before the hearing. The trial court also asked appellant if he wanted to say anything. Appellant responded, ‘Well, not really, your honor.’ “
When an objection was lodged to not being physically present at resentencing and the offender did not waive the right to being present, the Eighth Appellate District has held that a defendant’s due process rights and Crim.R. 43 rights were violated (State v. Kemp, 8th Dist. Cuyahoga No. 100426, 2014-Ohio-3414).
“Kemp, however, is distinguishable from this case in one important way. Kemp was not reviewed under a plain error standard of review. The defendant in Kemp clearly objected to not being physically present at the resentencing. In the matter at hand, although given the opportunity to do so, neither counsel nor appellant objected to the teleconference appearance. Furthermore, it is additionally noted that the state conceded error in Kemp and argued, despite the directives of Crim.R. 43(A), it would have been a waste of resources to transport the defendant to and from the court for resentencing,” Robb wrote.
Appellate judges Gene Donofrio and David A. D’Apolito concurred.
The case is cited State v. Toney, 2020-Ohio-5044.