[Cite as State v. Corn, 2021-Ohio-3444.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE OF OHIO 

 Appellee 

 v. 

ERIC CORN 

 Appellant 

C.A. No. 20CA011686 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 16CR093567 

DECISION AND JOURNAL ENTRY 

Dated: September 30, 2021 

 

CALLAHAN, Judge. 

{¶1} Appellant, Eric Corn, appeals his convictions by the Lorain County Court of 

Common Pleas. This Court affirms. 

I. 

{¶2} On March 8, 2016, law enforcement officers from several cooperating agencies 

executed a number of search warrants in concert throughout Lorain County. One of the warrants 

pertained to a residence on Riverside Drive in Lorain, where, after breaching the entrance, 

officers found Mr. Corn. Inside the premises, officers found bank correspondence addressed to 

Mr. Corn at that location. They also found over $19,000 in cash divided among six different 

locations, ten cellular phones, five digital scales, a semiautomatic firearm and a cache of 

ammunition, a hand press, 1,319.80 grams of marijuana, and 393.20 grams of cocaine. 

{¶3} The grand jury returned an indictment charging Mr. Corn with engaging in a 

pattern of corrupt activity in violation of R.C. 2923.32(A)(1), conspiracy in violation of R.C. 
2 

 

2923.01(A)(1) and (A)(2), trafficking in drugs in violation of R.C. 2925.03(A)(2), possession of 

drugs in violation of R.C. 2925.11(A), possessing criminal tools in violation of R.C. 2923.24(A), 

and permitting drug abuse in violation of R.C. 2925.13(B). On June 13, 2016, Mr. Corn waived 

his speedy trial rights in writing on a form journal entry used by the Lorain County Court of 

Common Pleas to record the proceedings at pretrial conferences, and the first pretrial conference 

was continued. Between that date and February 24, 2020, another twenty-four such forms 

appear in the record. All but five bear the signature of Mr. Corn or his attorney in the section 

that addresses speedy trial waiver as well as the signature of the trial court judge. The remaining 

five bear the signature of the trial court judge. 

{¶4} On February 14, 2018, Mr. Corn filed a motion to suppress all of the evidence 

gained as a result of the search of his residence, arguing that the affidavit upon which the warrant 

issued did not establish probable cause. The trial court scheduled a motion hearing for August 

13, 2018, the date of a pretrial conference. That pretrial was continued, however; the hearing on 

the motion to suppress was also continued to December 10, 2018, and ultimately cancelled. The 

record contains no further reference to the motion to suppress until the State filed a response on 

August 24, 2020. The trial court ultimately heard the motion immediately before trial 

commenced. 

{¶5} On February 24, 2020, Mr. Corn moved to dismiss the indictment, alleging that 

his speedy trial rights had been violated. In that motion, Mr. Corn argued that he waived his 

speedy trial rights “because he was led to reasonably believe and detrimentally relied” on 

representations made by the State that English translations of numerous intercepted telephone 

calls produced in Spanish would be undertaken and provided by the State. On the same date, Mr. 
3 

 

Corn also moved to compel the State to produce English translations of all such calls.1 On 

March 10, 2020, the trial court addressed the two motions in a single order, noting that the State 

had provided copies of more than 17,000 intercepted telephone calls in Spanish along with 

English language summaries of the calls. The trial court denied the motion to dismiss but 

granted the motion to compel to the extent that the State was required to provide translations and 

transcripts of any intercepted calls within two categories: those it intended to introduce at trial 

and those that contained exculpatory statements. 

{¶6} After postponement due to COVID-19, the trial court scheduled a jury trial for 

August 25, 2020. Five days before trial, Mr. Corn moved to continue the trial, arguing that the 

State had not provided “pertinent telephone recordings, and the translations of the same if so 

required.” Mr. Corn also moved the trial court to reconsider the earlier ruling on his motion to 

dismiss for violation of his speedy trial rights. The trial court denied both motions – as well as 

the motion to suppress – before trial. 

{¶7} The State informed the trial court on the record that it intended to proceed only 

with the charges of trafficking in cocaine and possession of cocaine. A jury found Mr. Corn 

guilty of both charges, and, based on the jury’s findings regarding the weight of the cocaine, the 

trial court concluded that Mr. Corn was a major drug offender. The trial court merged the 

convictions for purposes of sentencing and sentenced Mr. Corn to a mandatory term of eleven 

years in prison. Mr. Corn filed this appeal. His five assignments of error are rearranged for 

purposes of discussion. 

1

 A February 28, 2020, journal entry documenting a pretrial conference noted that a 

hearing was held on the motion to compel, but no transcript of that hearing is contained in the 

record. 
4 

 

II. 

ASSIGNMENT OF ERROR NO. 1 

THE APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL 

PURSUANT TO THE SIXTH AMENDMENT OF THE CONSTITUTION OF 

THE UNITED STATES AND ART. 1, SEC. 10 OF THE OHIO 

CONSTITUTION AND R.C. 2945.71 BASED ON IMPROPER INDUCEMENT 

BY THE STATE TO ENTER INTO MULTIPLE SPEEDY TRIAL WAIVERS 

IN VIOLATION OF HIS RIGHTS PURSUANT TO THE FIFTH 

AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. 

{¶8} Mr. Corn’s first assignment of error argues that the trial court erred by denying 

his motion to dismiss. Specifically, Mr. Corn argues that he was induced to waive his speedy 

trial rights over the course of the four years that his case was pending in the trial court by 

representations by the State that English translations of all of the intercepted telephone calls 

would be provided to him. 

{¶9} Ohio’s speedy trial statute, R.C. 2945.71, provides that an individual who has 

been charged with a felony must be brought to trial within 270 days of arrest. R.C. 

2945.71(C)(2). The rights described in R.C. 2945.71 are coextensive with constitutional speedy 

trial guarantees. State v. King, 70 Ohio St.3d 158, 160 (1994), citing State v. O’Brien, 34 Ohio 

St.3d 7, 9 (1987). Consequently, “an accused’s express written waiver of his statutory rights to a 

speedy trial, made knowingly and voluntarily, also constitutes a waiver of his speedy trial rights 

guaranteed by the United States and Ohio Constitutions.” King at 160, citing O’Brien at 

paragraph one of the syllabus. A defendant who has waived speedy trial rights “is not entitled to 

a discharge for delay in bringing him to trial unless the accused files a formal written objection 

and demand for trial, following which the state must bring the accused to trial within a 

reasonable time.” O’Brien at paragraph two of the syllabus. See also State v. Bray, 9th Dist. 

Lorain No. 03CA008241, 2004-Ohio-1067, ¶ 8. 
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{¶10} As an initial matter, Mr. Corn’s argument is premised upon the assumption that 

he executed multiple speedy trial waivers beginning on June 13, 2016, and that each was 

effective only until the next pretrial date. The tolling events specified in R.C. 2945.72 extend the 

period in which an accused may be brought to trial from one event to another in the absence of a 

waiver. See generally State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 24. Waivers of 

speedy trial rights, however, do not operate in the same fashion. A waiver of speedy trial rights 

can be of limited or unlimited duration, but when a written waiver fails to specify an expiration 

date, it constitutes an unlimited waiver. Bray at ¶ 8, citing State v. Kovacek, 9th Dist. Lorain No. 

00CA007713, 2001 WL 577664, *4 (May 30, 2001), citing O’Brien at paragraph two of the 

syllabus. An unlimited waiver is not effective only until a defendant’s next scheduled court date. 

State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009-Ohio-3924, ¶ 18, citing State v. 

Smith, 9th Dist. Lorain No. 98CA007144, 1999 WL 1260872, *3-4 (Dec. 22, 1999). 

{¶11} On June 13, 2016, Mr. Corn waived his speedy trial rights in writing on a form 

journal entry used by the Lorain County Court of Common Pleas to document pretrial 

proceedings. The waiver did not contain a specific time limitation. This Court has previously 

considered the nature of waivers contained on this form, concluding “that it operates not as a 

waiver from one court date to another, but as an unlimited waiver of speedy trial rights.” State v. 

Brown, 9th Dist. Lorain No. 20CA011618, 2021-Ohio-2540, ¶ 11, citing Skorvanek at ¶ 17-19 

and Smith at *1, 3-4. Consequently, Mr. Corn’s waiver of his speedy trial rights was effective 

from June 13, 2016, until such time as he filed a formal written objection and demand for trial. 

See O’Brien at paragraph two of the syllabus; Bray at ¶ 8. 

{¶12} Mr. Corn has not argued that, following his motion to dismiss, he was not brought 

to trial within a reasonable time. See O’Brien at paragraph two of the syllabus. Instead, he 
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appears to argue that his speedy trial waiver was not knowing and voluntary because it was 

induced by conduct on the part of the State. His arguments in this regard, however, rely entirely 

on evidence that is not contained within the record. Mr. Corn’s attorney argued in support of the 

motion to reconsider the motion to dismiss that the State made continuous representations that 

English translations of intercepted calls would be provided, but the State specifically denied that 

representation. In any event, the statements made by counsel are not evidence. State v. A.V., 9th 

Dist. Lorain No. 18CA011315, 2019-Ohio-1037, ¶ 11, citing State v. Shaffer, 11th Dist. Geauga 

No. 2009-G-2929, 2010-Ohio-6565, ¶ 19, 21, quoting State v. Haney, 70 Ohio App.3d 135, 138-

139 (10th Dist.1991). The numerous form journal entries that documented pretrial conferences 

do not substantiate Mr. Corn’s claims: the only references to discovery that they contain are 

notations that discovery had been provided. To the extent that pretrial proceedings may have 

been conducted on the record, the record on appeal contains no transcripts. 

{¶13} During oral argument, Mr. Corn’s appellate counsel acknowledged that this Court 

could not resolve the merits of his first assignment of error based on the existing record. In the 

alternative, Mr. Corn suggests that this Court should remand this matter to the trial court with 

instructions to hear evidence. In other words, Mr. Corn asks this Court to remand the case in 

order to create a record that does not presently exist. This Court cannot do so. Mr. Corn’s 

arguments, which rely on evidence outside the record, cannot be raised in a direct appeal. See 

State v. Upchurch, 9th Dist. Medina No. 20CA0001-M, 2021-Ohio-94, ¶ 17. 

{¶14} Mr. Corn’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 5 

THE LOWER COURT ERRED IN OVER[R]ULING THE MOTION TO 

SUPPRESS EVIDENCE. 
7 

 

{¶15} Mr. Corn’s fifth assignment of error argues that the trial court erred by denying 

his motion to suppress evidence gained as a result of the search warrant executed at his 

residence. This Court does not agree. 

{¶16} The Fourth Amendment to the United State Constitution provides that search 

warrants shall only issue “upon probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons or things to be seized.” 

Compare Crim.R. 41(C). The evidence supporting a search warrant “must be sufficient for the 

magistrate to conclude that there is a fair probability that evidence of a crime will be found in a 

particular place.” State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 35. 

{¶17} The Supreme Court of the United States has explained the standards that apply, 

respectively, to the magistrate tasked with issuing a warrant and to reviewing courts: 

The task of the issuing magistrate is simply to make a practical, common-sense 

decision whether, given all the circumstances set forth in the affidavit before him, 

including the “veracity” and “basis of knowledge” of persons supplying hearsay 

information, there is a fair probability that contraband or evidence of a crime will 

be found in a particular place. And the duty of a reviewing court is simply to 

ensure that the magistrate had a “substantial basis for ... conclud[ing]” that 

probable cause existed. 

Illinois v. Gates, 462 U.S. 213, 238-239 (1983), quoting Jones v. United States, 362 U.S. 257, 

271 (1960), overruled on other grounds United States v. Salvucci, 448 U.S. 83, 85 (1980). See 

also State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus. Like a trial court 

that rules on a motion to suppress, this Court must consider the totality of the circumstances. 

State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, ¶ 15. We do so with reference to the four 

corners of the affidavit. State v. Norris, 9th Dist. Wayne No. 05CA0081, 2006-Ohio-4022, ¶ 25, 

citing State v. Fisher, 9th Dist. Summit No. 22481, 2005-Ohio-5104, ¶ 7. We do not review the 

question of probable cause de novo: 
8 

 

In reviewing the sufficiency of probable cause in an affidavit submitted in support 

of a search warrant issued by a magistrate, neither a trial court nor an appellate 

court should substitute its judgment for that of the magistrate by conducting a de 

novo determination as to whether the affidavit contains sufficient probable cause 

upon which that court would issue the search warrant. Rather, the duty of a 

reviewing court is simply to ensure that the magistrate had a substantial basis for 

concluding that probable cause existed. 

George at paragraph two of the syllabus. In doubtful or marginal scenarios, the magistrate’s 

determination of probable cause should be afforded “great deference” by reviewing courts. Id. at 

paragraph two of the syllabus. Thus, the question before this Court in reviewing a motion to 

suppress that questions probable cause for a search warrant is whether the affidavit “provided a 

substantial basis for the magistrate’s conclusion that there was a fair probability” that evidence 

would be found. (Emphasis omitted.) George at 330. 

{¶18} The affidavit in this case was sworn by Detective Christopher Colon of the Lorain 

Police Department on March 7, 2016. Paragraphs one through eleven describe the background 

of the investigation into a drug trafficking organization operating in Lorain County which, in 

turn, led Detective Colon to identify Mr. Corn’s brother and two individuals named R.E. and 

R.C. and to obtain authorization to intercept their communications. Paragraphs twelve through 

twenty describe intercepted telephone conversations and in-person surveillance of the Riverside 

Drive property between February 3, 2016, and February 27, 2016. According to the affidavit, 

that combined surveillance connected Mr. Corn and his brother to R.C., who was observed at the 

Riverside Drive property on multiple occasions. Detective Colon described intercepted 

telephone calls that referenced police surveillance of the residence and appeared to reference 

contraband. Paragraphs thirteen, fifteen, and twenty-one described Detective Colon’s basis for 

identifying Mr. Corn as a resident of the Riverside Drive property and as a participant in several 

intercepted calls. 
9 

 

{¶19} Mr. Corn has argued that the affidavit at issue did not establish probable cause to 

search his residence because it contained information that was stale or irrelevant to the search of 

the premises. An affidavit that sets forth the grounds for a search warrant must do so with 

reference to “‘facts so closely related to the time of the issue of the warrant as to justify a finding 

of probable cause at that time.’” State v. Myers, 9th Dist. Summit No. 27576, 2015-Ohio-2135, ¶ 

18, quoting Sgro v. United States, 287 U.S. 206, 210 (1932). As this Court has observed, 

While it is true that an affidavit for a search warrant must present timely 

information, there is no arbitrary time limit for how old the information can be. 

The problem of stale information normally only arises if a substantial period of 

time has elapsed between the commission of the crime and the proposed search[.] 

The alleged facts are timely if they justify the conclusion that the property 

specified in the warrant is probably on the person or premises to be searched. 

(Alterations and omissions in original.) State v. Ruffin, 9th Dist. Summit No. 25916, 2012-Ohio1330, ¶ 10, quoting State v. Yeagley, 9th Dist. Wayne No. 96CA0022, 1996 WL 490259, *3 

(Aug. 28, 1996). The timeliness of information in an affidavit is evaluated according to all of the 

surrounding circumstances, and a “‘primary consideration’” is “‘whether the affidavit describes a 

single transaction or a continuing pattern of criminal conduct.’” Myers at ¶ 18, quoting United 

States v. Tucker, 638 F.3d 1292, 1299 (5th Cir.1981). With respect to drug trafficking, for 

example, this Court has noted that “the passage of time * * * is less significant * * * than in 

situations where the affidavit relates to a single instance.” Myers at ¶ 19. Compare State v. 

Jones, 3d Dist. Marion No. 9-20-04, 2020-Ohio-6667, ¶ 21-24; State v. Morales, 10th Dist. 

Franklin No. 17AP-807, 2018-Ohio-3687, ¶ 21-25. 

{¶20} Mr. Corn’s motion to suppress did not argue that the information in Detective 

Colon’s affidavit was stale. See, e.g., State v. Thomas, 3d Dist. Allen No. 1-16-36, 2017-Ohio4356, ¶ 18. Nonetheless, this Court must consider all of the surrounding circumstances, 

including the nature of the charges against Mr. Corn, in determining whether the affidavit 
10 

 

provided a substantial basis for the conclusion that there was a fair probability of locating 

evidence at the Riverside Drive address. See George, 45 Ohio St.3d at 330. In that respect, 

Detective Colon’s affidavit set forth the context of an ongoing drug trafficking investigation that 

spanned the course of several years and implicated many different individuals. The affidavit 

explained how those individuals led the police to identify Mr. Corn as a potential participant and 

described specific surveillance that led Detective Colon to believe that evidence related to the 

ongoing trafficking operation would be found at the Riverside Drive address. Although the 

surveillance was conducted throughout the month immediately preceding the affidavit, the 

ongoing nature of the trafficking investigation renders that relatively slight passage of time less 

significant. See Myers at ¶ 19. 

{¶21} Affording the magistrate’s determination of probable cause deference, as we 

must, and considering the totality of the circumstances, this Court concludes that the magistrate 

had a substantial basis for concluding that probable cause existed for the search of the Riverside 

Drive residence. The trial court, therefore, did not err in denying Mr. Corn’s motion to suppress 

on this basis. 

{¶22} Mr. Corn has also argued in his appellate brief that the trial court erred by denying 

his motion to dismiss because Detective Colon’s affidavit contained statements that were 

deliberately false or made with reckless disregard for the truth. See generally Franks v. 

Delaware, 438 U.S. 154, 171-172 (1978). Apart from a passing reference to Franks, however, 

Mr. Corn did not argue this issue in his motion to suppress. To the extent that the trial court 

considered Mr. Corn’s Franks argument regardless, this Court cannot conclude that the trial

court erred. “‘To successfully attack the veracity of a facially sufficient search warrant affidavit, 

a defendant must show by a preponderance of the evidence that the affiant made a false 
11 

 

statement, either “intentionally, or with reckless disregard for the truth.”’” State v. McKnight, 

107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 31, quoting State v. Waddy, 63 Ohio St.3d 424, 441 

(1992), quoting Franks at 155-156. Allegations under Franks cannot be conclusory; they must, 

instead, be supported by reliable evidence that supports the claim of deliberate falsehood or 

reckless disregard for truth. State v. Jackson, 9th Dist. Lorain No. 14CA010593, 2015-Ohio3520, ¶ 10, quoting Franks at 171. Absent this showing, an accused cannot meet even the 

“preliminary burden” of demonstrating that a hearing is warranted and overcoming the 

presumption of regularity. State v. Roberts, 62 Ohio St.2d 170, 178 (1980); State v. Atkinson, 

9th Dist. Lorain No. 19CA011466, 2020-Ohio-315, ¶ 12. 

{¶23} Mr. Corn did not produce any evidence demonstrating that Detective Colon’s 

affidavit contained statements that were made falsely or with reckless disregard for the truth. His 

arguments in that regard, both during the hearing on the motion to suppress and in his appellate 

brief, are both conclusory and speculative. This Court cannot conclude, on that basis, that the 

trial court erred by denying his motion to suppress. 

{¶24} Mr. Corn’s final argument regarding the motion to suppress is that the trial court 

erred by denying the motion without first ordering the translation of all of the intercepted 

telephone calls. As with Mr. Corn’s first assignment of error, however, this argument rests upon 

matters that are outside of the record on appeal. For that reason, this Court cannot consider 

them. See Upchurch, 2021-Ohio-94, at ¶ 17. 

{¶25} Mr. Corn’s fifth assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 3 

THE APPELLANT WAS DENIED DUE PROCESS OF LAW AND SIXTH 

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE 

TO STATE INDUCED INEFFECTIVE ASSISTANCE OF COUNSEL. 
12 

 

{¶26} In his third assignment of error, Mr. Corn argues that he was denied the effective 

assistance of appellate counsel because trial counsel did not gain access to the English 

translations of all intercepted telephone calls. 

{¶27} In order to demonstrate ineffective assistance of counsel, a defendant must show 

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by 

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 

466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for 

counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been 

different. Id. at 694. 

{¶28} In a direct appeal, ineffective assistance of counsel must be demonstrated by 

evidence within the record. See generally State v. Madrigal, 87 Ohio St.3d 378, 390-391 (2000). 

“‘[A] claim of ineffective assistance of counsel on direct appeal cannot be premised on decisions 

of trial counsel that are not reflected in the record of proceedings * * * [and] [s]peculation 

regarding the prejudicial effects of counsel’s performance will not establish ineffective 

assistance of counsel.’” State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 

4, quoting State v. Leyland, 9th Dist. Summit Nos. 23833, 23900, 2008-Ohio-777, ¶ 7, citing 

State v. Sweeten, 9th Dist. Lorain No. 07CA009106, 2007-Ohio-6547, ¶ 10–12 and State v. 

Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 27. 

{¶29} As discussed in this Court’s disposition of Mr. Corn’s first assignment of error, 

the record on appeal does not contain any information about the State’s alleged representations 

regarding translation of the intercepted phone calls. The substance of those calls is, itself, 

speculative. Any conclusions regarding the performance of trial counsel with respect to those 
13 

 

calls would also be speculative and cannot form the basis of error on direct appeal. See, e.g., 

State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, ¶ 69. See also State v. Castagnola, 9th Dist. 

Summit Nos. 29141, 29250, 2020-Ohio-1096, ¶ 27; State v. Fridley, 9th Dist. Wayne No. 

17AP0029, 2019-Ohio-3412, ¶ 32. 

{¶30} Mr. Corn’s third assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 2 

THE LOWER COURT ERRED AND DENIED THE APPELLANT DUE 

PROCESS OF LAW WHEN IT DENIED THE DEFENSE MOTION FOR 

CONTINUANCE. 

{¶31} Mr. Corn’s second assignment of error argues that the trial court abused its 

discretion by denying his motion to continue the trial date and, in the alternative, that denial of 

the continuance amounted to a denial of due process. As with Mr. Corn’s first and third 

assignments of error, his argument with respect to the continuance is premised upon alleged 

representations made by the State regarding translation of the intercepted telephone calls that are 

absent from the record. As such, they cannot form the basis for error on direct appeal. See 

Upchurch, 2021-Ohio-94, at ¶ 17. 

{¶32} Mr. Corn’s second assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 4 

THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS 

PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION AS WELL AS ART. I, SECTION 10 OF 

THE CONSTITUTION OF THE STATE OF OHIO AS WELL AS OHIO CRIM. 

R. 43 WHEN THE TRIAL COURT CONDUCTED HIS SENTENCING 

WITHOUT HIM BEING PHYSICALLY PRESENT AND OVER HIS 

OBJECTION. 
14 

 

{¶33} In his fourth assignment of error, Mr. Corn argues that the trial court deprived him 

of due process by conducting his sentencing hearing by video during the COVID-19 public 

health emergency. Based on the circumstances present in this case, this Court does not agree. 

{¶34} “A defendant has a fundamental right to be present at all critical stages of his 

criminal trial.” Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, ¶ 83. Similarly, under Crim.R. 

43(A)(1), a defendant “must be physically present at every stage of the criminal proceeding and 

trial, including * * * the imposition of sentence, except as otherwise provided by these rules.” 

Crim.R. 43(A)(2) permits the participation of a felony defendant by remote contemporaneous 

video with a written waiver of physical attendance provided that notice is given to all parties, the 

defendant can see and hear the proceeding and can both speak and be seen and heard, and 

provision is made for private communication between the defendant and counsel. 

{¶35} As a general rule, when a defendant is sentenced by journal entry without being 

present for a hearing, this Court must reverse. See State v. Wooden, 9th Dist. Summit No. 27250, 

2015-Ohio-2633, ¶ 16. The absence of a defendant, however, does not always result in 

prejudicial error. Grate at ¶ 83, citing Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934) 

and State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 139. “‘[T]he presence of a 

defendant is a condition of due process to the extent that a fair and just hearing would be 

thwarted by his absence, and to that extent only.’” State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, ¶ 90, quoting Snyder at 107-108. Consequently, when a defendant is absent in violation 

of Crim.R. 43(A), any error can be harmless when no prejudice results. See State v. Williams, 6 

Ohio St.3d 281, 285-287 (1983). See also State v. Warren, 10th Dist. Franklin No. 10AP-376, 

2010-Ohio-5718, ¶ 7. 
15 

 

{¶36} Mr. Corn was sentenced on September 24, 2020, and he appeared by remote 

simultaneous video conference because of the COVID-19 public health emergency. The record 

demonstrates that Mr. Corn was afforded the opportunity to confer privately with counsel and 

that he could speak and be seen and heard by the trial court and all other participants. See

Crim.R. 43(A)(2). Mr. Corn did not execute a written waiver of his right to appear in person as 

required by Crim.R. 43(A)(2), however, and trial counsel objected to the procedure. 

Nonetheless, given the circumstances present in this case, this Court concludes that any error in 

this regard was harmless. The trial court found that Mr. Corn was a major drug offender based 

on the jury’s finding regarding the weight of the cocaine and, pursuant to R.C. 2925.03(C)(1)(f) 

and R.C. 2929.14(A)(1), sentenced him to a mandatory eleven-year prison term. In other words, 

Mr. Corn was able to participate fully in the sentencing hearing, and the trial court had no 

discretion with regard to the sentence imposed upon him.2 Under these circumstances, we 

cannot conclude that Mr. Corn suffered prejudice and any error in connection with his sentencing 

hearing was harmless. See Davis at ¶ 90; Williams at 285-287. 

2

 This Court also notes that during the COVID-19 public health emergency, Ohio courts 

sought to minimize in-person appearances while maintaining court operations. For example, on 

July 31, 2020, the Supreme Court of Ohio issued an administrative order that provided that 

“[a]ny requirement in a rule of the Court that a party appear in person * * * may be waived by 

the Court, local court, hearing panel, board, or commission, as applicable. Appearance * * * by 

use of technology shall be allowed if it sufficiently guarantees the integrity of the proceedings 

and protects the parties’ interests and rights.” 7/31/2020 Administrative Actions, 2020-Ohio3861. The proceedings to which the administrative order applied included, but were not limited 

to, arraignments and pleas. Id. Less than three months after Mr. Corn’s sentencing, the Chief 

Justice of the Supreme Court of Ohio emphasized that “[f]irst and foremost, [courts] must 

operate with a strong presumption toward remote proceedings. * * * In-person appearances 

should be required only in exceptional circumstances, where there is an immediate need to 

protect the safety or well-being of a person, and a remote proceeding is not feasible.” Supreme 

Court of Ohio, COVID Guidance, Dec. 10, 2020, 

https://www.supremecourt.ohio.gov/coronavirus/resources/ChiefCommunications/COVID 

Guidance121020.pdf (accessed Sept. 22, 2021). 
16 

 

{¶37} Mr. Corn’s fourth assignment of error is overruled. 

III. 

{¶38} Mr. Corn’s assignments of error are overruled. The judgment of the Lorain 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of 

this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

SUTTON, J. 

CONCURS. 
17 

 

CARR, P. J. 

CONCURRING IN JUDGMENT ONLY. 

{¶39} I concur in judgment only. I would overrule the fourth assignment of error based 

on the July 31, 2020, Administrative Order of the Supreme Court of Ohio, 7/31/2020 

Administrative Actions, 2020-Ohio-3861, and the fact that the trial court had no discretion with 

regard to the sentence imposed upon Corn. I concur with the remainder of the opinion. 

APPEARANCES: 

ROBERT A. DIXON, Attorney at Law, for Appellant. 

J.D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting 

Attorney, for Appellee.