STATE OF OHIO, Plaintiff-Appellee, vs. DOMINIC JACKSON, Defendant-Appellant.
APPEAL NO. C-140384
TRIAL NO. B-1205198
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 5, 2015
[Cite as State v. Jackson, 2015-Ohio-2171.]
Judgment Appealed From Is: Affirmed in Part, Sentence Reversed, and Cause Remanded
Date of Judgment Entry on Appeal: June 5, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. Bicknell, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} Defendant-appellant Dominic Jackson appeals from the trial court’s judgment revoking his community control and sentencing him to 18 months in prison. On appeal, he argues that his sentence is contrary to law because the trial court failed to consider the purposes and principles of sentencing in
Community-Control-Violation Hearing
{¶2} On September 7, 2012, Jackson pleaded guilty to one count of receiving stolen property, a felony of the fourth degree. On October 23, 2012, the trial court sentenced Jackson to two years of community control, with the conditions that Jackson follow the standard rules and requirements of probation, pass the General Educational Development (“GED”) test, and pay court costs and probation fees. The trial court informed Jackson that if he violated the terms and conditions of community control, it would impose an 18-month prison term.
{¶3} On May 15, 2014, Jackson was charged with violating the terms and conditions of his community control. He had failed to report to his probation officer in February, March, and April 2014, and he had failed to pay his court costs and probation fees. On June 2, 2014, Jackson waived his right to a probable-cause hearing and stipulated to the facts underlying the community-control violations. The trial court found he had violated the terms of his community control.
{¶4} The trial court then stated that it was going to send Jackson to the Hamilton County Justice Center for 60 days, so that he could “get his act together” and enroll in the GED program. Jackson’s counsel told the court that Jackson was
THE COURT: Let me be very, very clear. The only place you’re going, if it doesn’t work out in the Justice Center is the Ohio Department of Corrections.
THE DEFENDANT: Yes, ma’am.
THE COURT: You did nothing. You have a lousy record. You have a police officer who tried to mentor you for years and said nothing worked.
THE DEFENDANT: I mean, I took the GED program. I failed the first test. I was supposed to take the test over. I got two kids, Your Honor.
THE COURT: You’ve done nothing. How are you going to help two kids by being in the Ohio Department of Corrections?
THE DEFENDANT: Yes Ma’am. Every penny I get goes towards the household, each dollar.
THE COURT: Here’s the problem. You never reported to probation. You never responded to their attempting to contact you. You didn’t do anything.
THE DEFENDANT: I didn’t have a phone.
THE COURT: I’m sure some of your friends have phones.
THE DEFENDANT: I missed one appointment. I had a warrant.
THE COURT: Don’t give me that. You know why this is so thick? This is so thick because it is your record. We’ll continue it for 60
days and see how it goes. Never mind. It doesn’t look like that’s going to work. THE DEFENDANT: Yes ma’am. I was –-.
THE COURT: You just shook your head.
THE DEFENDANT: I was talking to him, Your Honor.
THE COURT: Mr. Jackson, it is clear to me from your attitude that you don’t get it. I’m not going to waste the time, effort, and space.
THE DEFENDANT: I don’t understand. So, he was explaining, that’s all.
THE COURT: How many times does he need to explain it? And I don’t need all the sighs and the eye rolling and everything. I’m done. All right. I’m done. We’re not doing that. We’re sentencing now. We’re going to terminate the probation on the charge of receiving stolen property, a Felony of the Fourth Degree, we’re going to sentence you to 18 months in the Ohio Department of Corrections.
THE DEFENDANT: Please, Your Honor, he was just explaining to me.
THE COURT: Don’t give me that. Don’t make it worse.
THE DEFENDANT: I apologize for my attitude.
THE COURT: You obviously understand the GED program because you’ve been told by me, you’ve taken the test. Be quiet. That’s enough. Eighteen months in the Ohio Department of Corrections. You’ll be eligible for any program you can get into. We’ll credit the
time served. They’ll be no fines, there will be court costs. You can either pay them or work them off through community service. THE DEFENDANT: He was just telling me --.
THE COURT: I’m sorry. I’m telling you to be quiet. * * * The police officer that tried to mentor you said in the pre-sentence investigation and I quote, “Many officers have tried to mentor the defendant. He continues to lead a life full of criminal activity and needs time to wake up.” He’s recommending incarceration. I gave you time on probation. You didn’t do it. You didn’t wake up. Maybe you’ll wake up. Thank you.
Crim.R. 32 and the Right of Allocution
{¶5} We begin by addressing Jackson’s second assignment of error, which we find dispositive of his appeal. In his second assignment of error, Jackson argues the trial court violated his right to allocution when it failed to permit him to address the court following its decision to impose a prison sentence
{¶6}
{¶7} The Ohio Supreme Court has held that the right to allocution is mandatory. See State v. Campbell, 90 Ohio St.3d 320, 324-325, 738 N.E.2d 1178 (2000). Thus, if the trial court does not ask the defendant if he wishes to speak in allocution, the defendant cannot be deemed to have waived the right by failing to object at the sentencing hearing. Id. “In a case in which the trial court has imposed sentence without first asking the defendant whether he or she wishes to exercise the right of allocution created by
{¶8} The state argues that when a defendant is sentenced for a community-control violation, he has no right to allocution. In State v. McAfee, 1st Dist. Hamilton No. C-130567, 2014-Ohio-1639, ¶ 14, we rejected this argument. We held that McAfee, who was being sentenced to prison for a felony, following a violation of his community control, had a right to allocution under
{¶9} Here, the record reflects that the trial court told Jackson it was continuing the matter for sentencing so that Jackson could enroll in the GED program at the Hamilton County Justice Center. The trial court then peppered Jackson with both comments and questions relating to his failure to comply with the
{¶10} In State v. Mynhier, 146 Ohio App.3d 217, 223, 765 N.E.2d 917 (1st Dist.2001), this court held that a trial court’s failure to comply with
{¶11} More recently in State v. Thompson, 1st Dist. Hamilton No. C-120516, 2013-Ohio-1981, ¶ 10, we questioned the viability of Mynhier. We noted that the Second Appellate District had disavowed the case the Mynhier court had relied upon, and that the Fourth, Seventh, and Eleventh Appellate Districts had declined to follow Mynhier. The Fourth and Eleventh Districts reasoned that it was unfair to judge the defendant’s plea for mitigation on appeal when the defendant was entitled under
{¶12} While we found their reasoning persuasive, we did not overrule Mynhier because we found it to be factually distinguishable from Thompson. We noted in Thompson that prior to imposition of sentence, the trial court had addressed the defendant, asking for his reasons for his actions and it had afforded the defendant an opportunity to speak further before entering judgment. Thompson at ¶ 12. We held that when viewing the record as a whole, the defendant had been given an opportunity to “make his case in mitigation to the trial court” and that any failure to strictly comply with
{¶13} Jackson, however, unlike the defendant in Thompson, was not afforded an opportunity to speak in mitigation before the trial court imposed his sentence. And when Jackson tried to speak, the trial court told him to be quiet not once, but two times. The trial court, moreover, did not afford Jackson’s counsel an opportunity to speak on his behalf before imposing sentence.
{¶14} Thus, we are left to determine whether Jackson’s failure, like the defendant in Mynhier, to come forward with the information on appeal that he would have offered the trial court in mitigation, renders the trial court’s failure to comply with
{¶15} Given that the trial court imposed the maximum prison term upon Jackson, we cannot say that had the trial court afforded Jackson and his attorney the opportunity to present evidence in mitigation, it would have had no positive effect upon his sentence. Compare State v. Reed, 10th Dist. Franklin No. 09AP-1164, 2010-Ohio-5819, ¶ 19 (holding the trial court’s failure to provide the defendant with the right to allocution harmless where the defendant had been sentenced to the minimum prison term allowed, and the court imposed no fines and waived costs). We, therefore, sustain his second assignment of error.
{¶16} Our disposition of Jackson’s second assignment of error has rendered moot his first assignment of error, in which he asserts the trial court failed to consider the purposes and principles of sentencing in
Judgment affirmed in part, reversed in part, and cause remanded.
DEWINE, J., concurs.
MOCK, J., dissents.
MOCK, J, dissenting.
{¶17} I understand that the right of allocution at a community-control-revocation hearing is the law of this District, but I believe that case was wrongly decided. I respectfully dissent.
{¶18} In State v. McAfee, this court held that, when sentencing a defendant for a community-control violation, a trial court is required to address the defendant personally and allow an opportunity of allocution. State v. McAfee, 1st Dist. Hamilton No. C-130567, 2014-Ohio-1639, ¶ 14. In support of that holding, this court cited the Ohio Supreme Court case of State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995. But I believe that this court has read the Fraley decision too broadly.
{¶20} The actual issue that the Fraley court was called to address by the conflicting decisions of the appellate districts was “whether
{¶22} For the above-quoted proposition of law, the Fraley court cited State v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶ 35. But the Martin court had merely said that “[w]hen a defendant violates community control sanctions; a second sentencing hearing is conducted. The sentence imposed in this second sentencing hearing must comply with
{¶23} Along with the Eighth Appellate District, the Third, Fifth, Seventh, and Eleventh Districts have likewise held that there is no separate right to allocation at a community-control-violation hearing. See State v. Michael, 3rd Dist. Henry No. 7-13-05, 2014-Ohio-754; State v. Krouskoupf, 5th Dist. Muskingum No. CT2005-0024, 2006-Ohio-783, ¶ 15; State v. Favors, 7th Dist. Mahoning No. 08-MA-35, 2008-Ohio-6361; State v. Turjonis, 7th Dist. Mahoning No. 11 MA 28, 2012-Ohio-4215, ¶ 6, 13; State v. Gibson, 11th Dist. Portage No. 2013-P-0047, 2014-Ohio-433, ¶ 43-44. Importantly, all of these cases were decided after the Fraley decision. Only this court has cited Fraley in the context of a right to allocution at community-control-violation hearings. And I believe it is time for this court to rejoin the other districts on this question.
{¶24} I agree with the holdings of the Third, Fifth, Seventh, Eighth, and Eleventh Districts that, where community control has been revoked and the trial court is simply reinstating an already determined sentence, there is no need for the defendant to be afforded the right to make a statement in mitigation of his sentence. As the Eleventh District noted:
“The purpose of allocution is to allow the defendant an additional opportunity to state any further information which the judge may take into considering [sic] when considering the sentence to be imposed.” Defiance v. Cannon, 70 Ohio App.3d 821, 828, 592 N.E.2d 884 (1990). * * * A sentence is imposed at sentencing, but when community control is modified or revoked no new sentence is imposed on the defendant; rather the defendant’s probation is either modified or the defendant’s sentence is reinstated.
{¶25} Of course, the trial court may allow the defendant to speak at the revocation hearing, but that decision should be left to the discretion of the trial court. I do not think it is proper for this court to continue to take the Fraley holding out of context and broadly apply it so as to require a “second” allocution, which is not provided for by statute. We should take this opportunity to overrule our decision in
Please note:
The court has recorded its own entry this date.