State v. Duhl, 2017 Ohio 5492

Defendant Kyle Duhl (age 18) pled guilty to five counts arising from coordinated vandalism and unauthorized use of vehicles that caused over $76,000 in damages; he agreed to ~ $76,546.69 restitution.
Plea resulted in dismissal of four other charges; sentencing hearing set for Nov. 10, 2016.
At sentencing the court considered a bond-violation admission by Duhl (contact with a juvenile), and the court informed Duhl the violation would be a sentencing factor.
Defense counsel spoke in mitigation; when the court invited Duhl to address it, he initially declined to speak and later, after prompting, offered a brief apology.
The court criticized Duhl’s silence as reflecting lack of remorse and imposed five years community control with conditions (including 180 days jail, SEPTA program, restitution), warning of a 46-month exposure if community control were revoked.
Duhl appealed, arguing the court impermissibly punished him for invoking his right to remain silent at sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court violated defendant's Fifth Amendment/right to remain silent by drawing adverse inference from silence at sentencing	State: court appropriately considered remorse and bond violation; no adverse inference about crime facts was drawn	Duhl: court punished him for invoking his right to remain silent and condemned him for not speaking	Court: No error — asking whether defendant showed remorse is a proper sentencing consideration under R.C. 2929.12; court did not rely on silence to establish crime facts or to compel testimony

Mitchell v. United States, 526 U.S. 314 (Sup. Ct.) (adverse inferences may not be drawn from a defendant's silence when used to establish facts about the crime at sentencing)
White v. Woodall, 134 S. Ct. 1697 (U.S. 2014) (Mitchell narrowly framed; some inferences about silence at penalty phase may fall outside Mitchell's core but blanket no-adverse-inference instructions are not always required)
Estelle v. Smith, 451 U.S. 454 (Sup. Ct.) (Fifth Amendment protection against compelled testimony applies at sentencing contexts where self-incrimination is at issue)
State v. Short, 129 Ohio St.3d 360 (Ohio 2011) (allocution requirement: defendant must be given opportunity to speak at sentencing; purpose is mitigation/express remorse)
State v. Green, 90 Ohio St.3d 352 (Ohio 2000) (allocution is a defendant's last opportunity to plead his case or express remorse)