State of Ohio v. Daniel Lee Gutierrez
Court of Appeals No. WD-21-035
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
December 3, 2021
[Cite as State v. Gutierrez, 2021-Ohio-4232.]
Trial Court No. 2020CR0453
Decided: December 3, 2021
Pаul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant.
ZMUDA, P.J.
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I. Introduction
{¶ 1} Appellant, Daniel Gutierrez, appeals the judgment of the Wood County Court of Common Pleas, sentencing him to 18 months in prison after he pled guilty to one count of domestic violence. Finding no error in the proceedings below, we affirm.
{¶ 2} On December 3, 2020, appellant was indicted on one count of domestic violence in violation of
{¶ 3} Appellant initially entered a plea of not guilty to the aforementioned charges at his arraignment on December 11, 2020. Following successful plea negotiations, on March 16, 2021, appellant appeared before the trial court for a plea hearing. The parties informed the trial court of a plea agreement under which the state agreed to dismiss the charge of unlawful restraint and amend the domеstic violence charge to a felony of the fourth degree in exchange for appellant‘s plea of guilty to the amended domestic violence charge. Following a
{¶ 5} The trial court began the hearing by noting its consideration of the presentence investigation report that was prepared prior to sentencing. Thereafter, appellant‘s defense counsel spoke on appellant‘s behalf. At the outset of counsel‘s statement in mitigation, counsel for appellant acknowledged that appellant‘s prior criminal record included 15 traffic offenses, 19 misdemeanors, and two felonies, including a prior domestic violence conviction from 2011. Nonetheless, counsel stated that appellant has “reconnected with his family. His mother is present in court with him today. He had initially moved here to [Bowling Green] to start оver with the victim in this case and then Covid occurred. * * * And things declined quickly with the two of them residing at some point in time in the hotel where this incident occurred.” Counsel further explained that appellant was current on his child support and was visiting with his two minor children on a regular basis. Finally, counsel infоrmed the court that appellant was employed full-time and was not abusing any illegal substances.
{¶ 6} In response, the state emphasized appellant‘s criminal history and pointed out the fact that appellant was previously convicted of “violent acts that go back years and years and years, all the way back to 2008, violating a temporary protection order,
{¶ 7} Subsequent to the state‘s sentencing request, the trial court asked appellant if he wished to speak, at which time he stated:
I mean, the victim - I would say I‘m sorry. I wish that night didn‘t happen. I‘m just now trying to move forward. Hopefully she‘s going forward, too. I‘m just trying to get on with my life. I‘ve got a job, which is hard to come by. You‘ve seen my bаckground and history. I‘m just trying to do right.
After appellant made the foregoing statement, the trial court questioned him as to any concrete steps he had taken to address his mental health issues. Appellant informed the trial court that he had scheduled a mental health assessment, and the court asked appellant, “What‘s going on in your life right now?” Appellant responded that he was working and saving money in an attempt to move out of his mother‘s home and was also seeing his children regularly.
{¶ 8} Following appellant‘s statement that he was living with his mother, the state interjected without the court‘s prompting and the following colloquy took place:
[PROSECUTOR]: Your Honor, the State would ask the Court if the defendant could clarify that he lives at his mom‘s. If so, the State has people waiting in the hallway that will be willing to give testimony that he is not at his mom‘s and in fact that it looks like there‘s going to be new
charges brought against him for beating her up again last night in Bryan, Your Honor.
THE COURT: Wait. Let‘s be clear. Are you saying the victim?
[PROSECUTOR]: Yes, I have witnesses.
THE COURT: Are we saying the victim?
[PROSECUTOR]: Yes. I have witnesses in the hallway that were at the hotel in Bryan that indicate that‘s where he was staying. The victim‘s brother actually was in that hotel. I have seen text messages, et cetera. So I think his story is а little bit off the mark, Your Honor.
THE COURT: I am not going to require him to say anything at this point about that because he could incriminate himself. I‘m not going to do that. I‘m going to focus the attention here.
{¶ 9} Without objection from appellant‘s defense counsel, and without giving appellant an opрortunity to respond to the state‘s domestic violence allegation, the trial court turned to sentencing. The court stated that it was “going to be very careful, very clear” and noted its consideration of the presentence investigation report and appellant‘s statement that he was employed and current on his child support payments. The court explained that it was mindful of the principles and purposes of sentencing under
{¶ 10} Two weeks later, on May 11, 2021, appellant filed his timely notice of appeal.
B. Assignment of Error
{¶ 11} On appeal, appellant assigns the following error for our review:
Appellant was denied his right of allocution to address statements made by the prosecutor at the sentencing hearing.
II. Analysis
{¶ 12} In his sole assignment of error, appellant argues that the trial court deprived him of his right of allocution at sentencing in not allowing him to respond to the state‘s suggestion that he had beat up S.C. the night before the sentencing hearing.
{¶ 13} The right of allocution is set forth in
{¶ 14}
{¶ 15} In the present case, both appellant and his defense counsel made statements at the sentencing hearing prior to the trial court‘s imposition of sentence. Thus, appellant was initially afforded his right of allocution. Notwithstanding this fact, appellant argues that the scope of his right of allocution encompassed not only his right to make a
{¶ 16} In its decision in Yates, supra, the Second District confronted a similar issue. There, the trial court allowed Yates and his counsel to speak at the start of the sentencing hеaring. Yates at ¶ 23. After hearing from Yates and his counsel, the trial court discussed a bondsperson‘s report, used the new information contained in the report to challenge Yates‘s statement, and imposed sentence without letting Yates speak again.
{¶ 17} Upon consideration, we find Yates factually distinguishable from this case. Indeed, at the sentencing hearing in this case, the state introduced the new information regarding appellant‘s alleged act of domestic violence into the record after appellant finished his statement. Upon hearing this new information, the trial court refused to explore the matter further, and refused to allow appellant to respond to the accusation out of concern that appellant would incriminate himself. More significantly, at no point did appеllant or his counsel insist upon responding or object to the trial court‘s failure to allow a response.
{¶ 18} In contrast, the trial court, not the state, introduced the new information in Yates. This distinction is material insofar as it supports a logical conclusion that since the trial court introduсed the information it therefore considered the new information in fashioning its sentence. On the other hand, the state‘s introduction of new information does not lead to such a conclusion.
{¶ 20} In Yates, the Second District was careful to note that a trial court‘s failure to allow a defendant to respond to new information at sentencing constitutes harmless error “when the defendant does not object to the new information or if the court‘s reasons for the enhanced sentence are unrelated to it.” Id. at ¶ 22, citing State v. Clark, 3d Dist. Crawford Nos. 3-05-14 and 3-05-20, 2006-Ohio-1421, ¶ 7. Here, appellant did not object to the new information referenced by the state and the rеcord is devoid of any evidence which demonstrates the trial court‘s sentence was based upon the new information. Unlike in Yates, the record in this case reflects the trial court based its sentence on the facts of the current domestic violence offense and appellant‘s criminal history. Consequently, we find that although the trial court erred in refusing to allow appellant to
{¶ 21} Accordingly, appellant‘s sole assignment of error is not wеll-taken.
III. Conclusion
{¶ 22} In light of the foregoing, the judgment of the Wood County Court of Common Pleas is affirmed. The costs of this appeal are assessed to appellant under
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
Gene A. Zmuda, P.J.
JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court оf Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.