STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO v. BRANDON TURJONIS
CASE NO. 11 MA 28
SEVENTH DISTRICT
September 14, 2012
2012-Ohio-4215
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 09 CRB 2523
BRANDON TURJONIS
DEFENDANT-APPELLANT
OPINION
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Dana Lantz, Youngstown City Prosecutor; Atty. Bassil Ally, Senior Assistant Law Director, 26 S. Phelps Street, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Edward A. Czopur, 42 North Phelps Street, Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
{¶1} Appellant Brandon Turjonis appeals his misdemeanor sentences in two separate cases in the Youngstown Municipal Court on the grounds that he was not afforded the right of allocution at sentencing. The court conducted a joint sentencing hearing for a probation violation stemming from a 2009 conviction, and for a 2010 conviction for obstructing official business and criminal trespass. Appellant contends that he did not receive the right of allocution, as set forth in
History of the Case
{¶2} On October 14, 2009, Appellant was charged with unauthorized removal of siding from a house and possession of a drug abuse instrument. He
{¶3} On July 19, 2010 Appellant was charged with misdemeanor counts of obstruction of official business, criminal trespass, and possession of drug paraphernalia. These charges stemmed from an incident in which Appellant fled on foot after the vehicle in which he had been riding was stopped by police due to suspicion of drug activity. He was found hiding in some nearby bushes. These actions lead to the obstruction of justice and trespass charges. Hypodermic needles and other drug paraphernalia were found in the car, resulting in the drug charge. These were filed under Youngstown Municipal Court Case No. 10 CRB 1357. Appellant was also charged with a probation violation in Case No. 09 CRB 2523 for failing to report for probation and engaging in criminal acts while on probation, as evidenced by the charges in Case No. 10 CRB 1357.
ASSIGNMENTS OF ERROR NOS. 1 AND 2
The trial court denied Appellant his right to allocution pursuant to Ohio Rule of Criminal Rule [sic] 32(A)(1) thereby requiring vacature of Appellant‘s sentence in the 2010 case.
The trial court denied Appellant his right to allocution pursuant to Ohio Rule of Criminal Procedure 32(A)(1) relative to the imposition of his sentence in the 2009 case thereby requiring vacature of his sentence in that matter.
{¶5} The issue on appeal is whether Appellant was afforded the right of allocution as described in
(A) Imposition of sentence. * * * At the time of imposing sentence, the court shall do all of the following:
(1) 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.
(2) Afford the prosecuting attorney an opportunity to speak;
{¶6} The purpose of allocution is to allow the defendant an opportunity to state for the record any mitigating information which the judge may take into consideration when determining the sentence to be imposed.
{¶7} Appellant maintains that he was not afforded his right of allocution in either his 2009 or 2010 cases. He acknowledges that the trial judge engaged him in conversation, but he does not consider this to be an exercise of his right of allocution. Appellant is also aware of our prior rulings, such as the Flavors case, that hold there is no right of allocution in a probation revocation hearing, but he urges us to reverse our prior decisions based on the facts of this case. The state, on the other hand, insists that Appellant was afforded his right of allocution. The state also asserts that there is no right of allocution in probation cases, and that there is no reason in this record to rule any differently, here. The state is correct on both matters.
{¶8} We will deal with the probation revocation sentence first. Appellant contends that he should have been given the right of allocution in his probation revocation case because our decision in Flavors was premised on the theory that the defendant had already exercised his right of allocution at the original sentencing. Hence, it was not necessary to present any more information to the trial court. Appellant contends that he was not afforded the right of allocution in 2009, and thus, the court should be required to allow him to speak at his 2011 sentencing hearing. Appellant is incorrect for two reasons. First, he did not appeal the October 28, 2009,
{¶9} Second, the record reflects that Appellant was given the right to allocute at his original sentencing hearing. The trial court engaged in a lengthy discussion with Appellant about his excuse that he did not know the siding could not be taken off the house, and about his addiction to heroin; the reasons he gave in mitigation of punishment. The trial court also told Appellant in 2009 that if he violated his probation he would receive the full 180 days in jail allowed by law. Once Appellant stipulated to the probation violation, the record shows that the judge simply carried out the previously announced decision to impose the remainder of the 180-day jail term.
{¶10} Appellant also argues that he was not given the right of allocution in Case No. 10 CRB 1357. Appellant is technically correct that the judge did not specifically recite the words of
{¶11} Although it is preferable for the trial judge to simply ask the defendant directly if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment, it is not per se reversible error for the judge to fail to specifically recite the language of
{¶12} We are not aware of any case where the failure to recite the words of
{¶13} In summary, Appellant challenges the sentences imposed in a probation violation case and in a separate conviction for obstructing official business and criminal trespass, because he believes he did not receive his right of allocution. There is no right of allocution in a probation revocation case. Also, the record reflects that he was given the right to give a statement in mitigation of punishment at the sentencing hearing, and the primary reason he gave was that he was addicted to heroin. Even though the court did not recite the words of
Donofrio, J., concurs.
DeGenaro, J., concurs.