2021 Ohio 4232
Ohio Ct. App.2021Background
- Appellant Daniel Gutierrez was indicted after an October 10, 2020 incident in which he pushed, punched, kicked, and pinned his live-in girlfriend, causing difficulty breathing; charges included felony domestic violence and misdemeanor unlawful restraint.
- Pursuant to a plea agreement, Gutierrez pled guilty to an amended fourth-degree felony domestic-violence count; the unlawful-restraint count was dismissed.
- At the April 27, 2021 sentencing, defense counsel and Gutierrez made allocution statements describing employment, family contacts, and steps toward mental-health treatment; counsel acknowledged an extensive prior record including past domestic-violence convictions.
- During allocution, the prosecutor interjected that witnesses in the courthouse claimed Gutierrez had assaulted the victim again the night before sentencing; the trial court declined to permit Gutierrez to respond, citing risk of self-incrimination, and proceeded to sentencing.
- The court imposed an 18-month prison term, citing the current offense conduct and Gutierrez’s criminal history; defense did not object to the court’s refusal to permit further response at sentencing.
- On appeal Gutierrez argued denial of his absolute right of allocution; the Sixth District held the trial court erred by cutting off Gutierrez but deemed the error harmless because the court’s stated reasons for sentence relied on the offense and prior record, not the prosecutor’s new allegation, and affirmed.
Issues
| Issue | Gutierrez (appellant) | State | Held |
|---|---|---|---|
| Whether Gutierrez was denied his absolute right of allocution when the court refused to let him respond to the prosecutor’s new allegation at sentencing | The court cut off his opportunity to address new information introduced after he spoke, violating Crim.R. 32 and R.C. 2929.19 | Allocution had already been afforded; the new allegation risked self-incrimination and Gutierrez did not object; any error was harmless | Court: allocution error occurred but was harmless because sentencing was based on PSI, offense facts, and prior record, not the new allegation; affirmed |
Key Cases Cited
- State v. Green, 90 Ohio St.3d 352 (2000) (Crim.R. 32 confers an absolute right of allocution; courts must painstakingly adhere to the rule)
- State v. Campbell, 90 Ohio St.3d 320 (2000) (resentencing not required if allocution error was invited or harmless)
- State v. Yates, 195 Ohio App.3d 33 (2011) (trial court errs when it does not let defendant address new information introduced and considered at sentencing; harmless where reasons for sentence are unrelated to the new information)
- Defiance v. Cannon, 70 Ohio App.3d 821 (1990) (allocution requirement satisfied when court’s conduct clearly shows defendant and counsel have a right to speak)