COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69533 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CLAUDE M. MEADE : OPINION : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-302906. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Diane Smilanick Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Donald Green Assistant County Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113-1569 SWEENEY, JAMES D., J.: Defendant-appellant Claude M. Meade ("Meade," d.o.b. December 20, 1962) appeals from his jury trial conviction of one count of Carrying a Concealed Weapon [R.C. 2923.12], and one count of Having a Weapon While Under a Disability [R.C. 2923.13] with a firearm specification. For the reasons adduced below, we reverse and remand. A review of the record on appeal indicates that Meade was arrested for the offenses previously mentioned on October 10, 1993. He was charged and released from jail on bond on October 12, 1993. 1 He was indicted on January 5, 1994. The original arraignment of January 20, 1994, was reset to January 28, 1994, at defendant's request. Meade failed to appear at the rescheduled arraignment and the trial court issued a capias. Meade was arrested on February 18, 1994, on the capias, was arraigned on the original indictment where he pled Not Guilty and had the Public Defender's Office assigned to represent him, and released again after making his bond. Three successive pretrial conferences were held in March, 1994. Meade and his assigned counsel were present at each of these pretrials. At the second pretrial held on March 18, 1994, the trial date was scheduled for April 4, 1994, at 9:30 a.m.. This 1 The indictment was for the offenses named previously including a violence specification on each count for a prior Felonious Assault conviction. - 3 - trial date was reaffirmed at the third pretrial conducted on March 31, 1994. On the date of the trial, sometime prior to the scheduled starting time, Meade and his counsel were present in the courtroom. A number of prospective jury members had been ordered up from the pool of potential jurors in the downstairs main jury room, had not been brought into the courtroom to be impanelled, and at that point were waiting in the jury room attached to the courtroom to be called for the start of the voir dire process. While Meade was waiting in the courtroom, defense counsel apparently met with the prosecution in chambers where a plea bargain was discussed. Defense counsel left these negotiations and returned to the courtroom to transmit the proposed plea bargain to his client. At this point, after having been told of the substance of the plea bargain (guilty to carrying a Concealed Weapon with a violence specification) and that the sentence would include imprisonment, Meade, against the advice of counsel, announced that he was going downstairs to get something to eat. Before Meade could leave the courtroom, defense counsel told Meade that he (defense counsel) was going back to chambers to attempt to obtain a better plea bargain. When defense counsel returned to the courtroom with a slightly better plea bargain offer (guilty to Carrying a Concealed Weapon, a definite term third degree felony, with no specifications), Meade was nowhere to be found. - 4 - The trial Court (Judge Timothy McGinty) waited until approximately 10:15 a.m. before announcing that as far as the Court was concerned, the trial had started and that Meade would be tried in absentia. The Court then conducted its voir dire of the prospective jury panel and impanelled the jury. The defense then objected to the continuation of the trial in defendant's absence. This motion was overruled. Before recessing before noon, the Court advised defense counsel and the sheriff's office to attempt to contact the defendant overnight and secure his attendance for the morning proceedings. The trial reconvened on Tuesday, April 5, 1994, at 10:15 a.m.. Despite attempts by counsel and law enforcement officials to contact the defendant, Meade was still absent. Over the renewed objections of defense counsel, the trial Court resumed the trial without the presence of the defendant. Following the presentation of evidence by the prosecution (the defense offered no evidence or testimony) the jury returned its verdict of guilty. Meade was again arrested on July 31, 1995. At Meade's bond hearing on August 1, 1995, Meade admitted that he voluntarily left the courtroom on the scheduled trial date after seeing the witnesses against him, knew that persons had tried to contact him to obtain his attendance at the trial which would proceed in his absence, and expressed his innocence. On August 3, 1995, Meade was sentenced to: (1) 3 years of actual incarceration on the firearm specification; (2) 1 and 1/2 - 5 - years for Carrying a Concealed Weapon as charged in count one; (3) 2 years for Having a Weapon While Under a Disability as charged in count two; (4) a total fine of $7,500.00; and, (5) the sentences on each of the counts to run consecutive, and these sentences to run consecutive to the sentence on the firearm specification. This timely appeal followed presenting two assignments of error. I THE TRIAL COURT ERRED IN VIOLATION OF R.C. 2945.12, CRIM.R. 43(A), SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES WHEN THE COURT PROCEEDED WITH THE TRIAL WITHOUT THE APPELLANT BEING PRESENT. 2 R.C. 2945.12 provides in pertinent part: A person indicted for a misdemeanor, upon request in writing subscribed by him and entered in the journal, may be tried in his absence by a jury or by the court. No other person shall be tried unless personally present, but if a person indicted escapes or forfeits his recognizance after the jury is sworn, the trial shall proceed and the verdict be received and recorded. ***. If the offense charged is a felony, the case shall be continued until the accused appears in court, or is retaken. (Emphasis added.) Crim.R. 43(A) provides in pertinent part: (A) Defendant's presence. The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules. In all prosecutions, the voluntary absence after the trial has commenced in his presence shall not prevent continuing the trial to and including - 6 - As was recently expressed in State v. Hill (August 30, 1995), 73 Ohio St.3d 433, 444, citing Section 10, Article I, Ohio Constitution, and Crim.R. 43(A), a defendant "has a fundamental right to be present at all critical stages of his criminal trial." However, R.C. 2945.12 and Crim.R. 43(A) provide for the waiver of defendant's fundamental right to be present. From the clear language of this statute and rule, this waiver is conditioned upon whether the trial had already commenced at the time of the defendant's absence from the trial. In addition, Crim.R. 1(A) mandates that the procedure contained in Crim.R. 43(A) be exercised 3 in criminal case jurisdiction. In the present case, we find Crosby v. United States (1993), 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25, to be compelling 4 authority. In Crosby, the Court applied Fed.R.Crim.P. 43 to a the verdict. ***. (Emphasis added.) 3 Crim.R. 1(A) provides: (A) Applicability. These rules prescribe the procedure to be followed in all courts of this state in the exercise of criminal jurisdiction, with the exceptions stated in subdivision (C) of this rule. (Note -- the exceptions in subdivision [C] are inapplicable to the present case.) 4 Fed.R.Crim.P. 43, from which Ohio's Crim.R. 43(A) is drawn, provides in pertinent part: (a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by - 7 - case where a defendant, although having had knowledge of the trial date, failed to appear at the courtroom at the appointed trial date and time, thereby voluntarily absenting himself prior to the start of the trial. The defendant in Crosby was tried in absentia and convicted. The Circuit Court affirmed the District Court. The Supreme Court of the United States reversed, noting at 113 S.Ct. at 753, that: The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial. (Emphasis added.) The prosecution, without mentioning Crosby, attempts to rely on several cases to support the notion that the trial in absentia in the present case was proper. These cases are readily distinguishable from the facts of the present case. In Diaz v. United States (1912), 223 U.S. 442, and Falk v. United States (1899), 181 U.S. 618, unlike the present case, the defendants absented themselves after the jury had been sworn in, thereby permitting the application of waiver to the defendants' right to be present at trial. The case of United States v. Tortora (2d Cir. 1972), 464 F.2d 1202, cert. denied at 409 U.S. 1063, which (b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present, (1) is voluntarily absent after the trial has commenced .... (Emphasis added.) - 8 - permitted a trial in absentia of a defendant who, despite having notice of the trial date beforehand and no justifiable reason for not attending the trial, had absented himself before the jury was impaneled, has been impliedly overruled by the application of Crosby v. United States, supra. The final case, State v. Wolford (December 21, 1978), Cuyahoga App. No. 38110, unreported, unlike the case at issue, involved a defendant's voluntary absence after the trial had begun. In the present case, contrary to the asseverations of the trial court and the prosecution, the trial had not yet commenced at the time the defendant voluntarily absented himself from the courtroom. At the time of his absence, the voir dire of the prospective jurors had not even begun. Those prospective jurors were not yet even in the courtroom, let alone impaneled/sworn in. Accordingly, the trial in absentia in this case was an improper violation of defendant's right to be present at the time of his trial, the conviction must therefore be vacated and the matter remanded to the trial court for further proceedings. 5 The first assignment of error is affirmed. Judgment reversed and remanded. This cause is reversed and remanded. 5 The second assignment of error, which alleges error in the sentencing of the defendant to three years actual imprisonment for the firearm specification where the underlying sentence was allegedly a definite term rather than an indefinite term, is moot by virtue of our holding in the first assignment, infra, and will not be addressed. App.R. 12(A)(1)(c). - 9 - It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. LEO M. SPELLACY, C.J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .