Opinion
Court of Appeals No. F-20-003
09-11-2020
State of Ohio Appellee v. Jacob R. Brown Appellant
Anthony J. Richardson II, for appellant.
Trial Court No. 18CR104 DECISION AND JUDGMENT Anthony J. Richardson II, for appellant. PIETRYKOWSKI, J.
{¶ 1} Appellant, Jacob R. Brown, filed an accelerated appeal from the March 12, 2020 judgment of the Fulton County Court of Common Pleas convicting and sentencing appellant for violation of his community control sanction. The trial court "re-imposed" a reserved sentence of a definite term of 11 months imprisonment to be served at the CCNO in the TCAP program. For the reasons which follow, we reverse.
{¶ 2} On appeal, appellant asserts a single assignment of error:
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED ERROR BY SENTENCING APPELLANT WITHOUT ALLOWING FOR ALLOCUTION.
{¶ 3} Appellant asserts on appeal the trial court did not personally address him and give appellant an opportunity to speak at his community control violation hearing.
{¶ 4} The purpose of the right of allocution is "'to permit the defendant to speak on his own behalf or present any information in mitigation of punishment.'" State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 204, quoting State v. Reynolds, 80 Ohio St.3d 670, 684, 687 N.E.2d 1358 (1998). The General Assembly incorporated the common law right into Crim.R. 32(A)(1), which provides in pertinent part that at the time of imposing sentence, the court shall:
Afford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment.
{¶ 5} The right of allocution applies to all sentencing hearings, including community control violation sentencing hearings. State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 17. Furthermore, by incorporation of the word "shall" in Crim.R. 32(A)(1), the General Assembly has indicated the trial court must strictly comply with the statute. State v. Campbell, 90 Ohio St.3d 320, 324-325, 738 N.E.2d 1178 (2000).
{¶ 6} In reviewing the sentencing hearing, we consider whether the trial court personally and unambiguously addressed the defendant directly and asked him if he wished to speak before the court imposed a sentence. Goff v. Bagley, 601 F.3d 445, 465 (6th Cir.2010); State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 179-180. Even if the trial court gave defense counsel an opportunity to speak, if the trial court did not offer appellant individually the opportunity to speak at the sentencing hearing, we must vacate the sentence and remand the case for resentencing unless the error was invited or is harmless. State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 15, citing State v. Campbell, supra, at paragraph three of the syllabus. Harmless error has been found where the court imposed a minimum or statutorily-mandated sentence. State v. Yates, 6th Dist. Ottawa No. OT-18-036, 2019-Ohio-3129, ¶ 15.
{¶ 7} In this case, appellant's appointed counsel spoke at the sentencing hearing and presented several mitigating factors. The court also allowed appellee the opportunity to present relevant factors to be considered for sentencing. The trial court did not, however, directly address appellant and inquire whether he had anything to say. The court then imposed the maximum sentence allowed under the circumstances. For this reason, we find the trial court violated Crim.R. 32(A)(1). There is nothing in the record to support a finding that appellant invited this error or that the error was harmless. Therefore, we find appellant's sole assignment of error well-taken.
{¶ 8} Having found that the trial court did commit error prejudicial to appellant and that substantial justice has not been done, the judgment of the Fulton County Court of Common Pleas is reversed. This case is remanded to the trial court for resentencing. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Gene A. Zmuda, P.J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE