State v. Brown , 2015 Ohio 2960 ( 2015 )

[Cite as State v. Brown, 2015-Ohio-2960.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140509
TRIAL NO. 14CRB-12702
Plaintiff-Appellee, :
O P I N I O N.
vs. :
VIVIAN BROWN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 24, 2015
Paula Boggs Muething, City Solicitor, Heidi Rosales, City Prosecutor, and Eric Cook,
Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA SIEVE HENDON, Presiding Judge.
{¶1} Vivian Brown appeals the judgment of the Hamilton County Municipal
Court sentencing her to 180 days in jail for theft. On appeal, she argues that the trial
court erred by failing to allow defense counsel to speak on her behalf, by denying her
the right of allocution, and by sentencing her to the maximum jail term. We find no
merit in Brown’s arguments, and we affirm the trial court’s judgment.
{¶2} At Brown’s bench trial, the state presented evidence that she stole a
textbook from the Cincinnati State bookstore. The evidence demonstrated that
Brown had left the bookstore with four textbooks after paying for only three of them.
While she was in the bookstore, she had concealed a fourth textbook, and then left
the bookstore without paying for it.
The Sentencing Hearing
{¶3} At the conclusion of the trial, the trial court found Brown guilty of theft
and explained its decision. During the court’s explanation, the following exchange
occurred:
THE COURT: * * * and you left with the four books, there’s no
evidence that you subsequently purchased this --
THE DEFENDANT: There was only three books.
THE COURT: Oh, no, you didn’t.
THE DEFENDANT: It was only three books.
THE COURT: The finding is guilty.
UNIDENTIFIED WOMAN: Bulls**t.
THE COURT: Finding is guilty.
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OHIO FIRST DISTRICT COURT OF APPEALS
UNIDENTIFIED WOMAN: It ain’t over. We’re going to appeal
it.
THE DEFENDANT: It ain’t over.
CRIMINAL BAILIFF: Everybody outside, please.
UNIDENTIFIED WOMAN: Bulls**t.
CRIMINAL BAILIFF: Go on outside.
UNIDENTIFIED WOMAN: My sister is not a thief. Not never.
UNIDENTIFIED WOMAN: She had no reason - -
THE DEFENDANT: That’s all right you all.
THE COURT: No, no, no. Wait a minute. Have them come
back in. We’re going to see who is going to leave here today and who is
going to go with you. You have them come back in here. I want the
record to know that it’s five minutes ‘til 9:00. You get me a contempt
citation.
UNIDENTIFIED WOMAN: I said that my sister is not a thief.
THE COURT: No, you have no right to say anything.
UNIDENTIFIED MAN: Everybody is wrong.
THE COURT: Let me say this to you, she’s going to go home
today but you won’t.
UNIDENTIFIED WOMAN: Okay.
THE COURT: You are not going to disrupt my court.
UNIDENTIFIED WOMAN: All I said is my sister is not a thief.
THE COURT: You don’t have to say anything.
UNIDENTIFIED WOMAN: Okay.
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OHIO FIRST DISTRICT COURT OF APPEALS
THE COURT: She had no business interrupting me.
UNIDENTIFIED WOMAN: Okay.
THE COURT: Let her talk because I want the record to put up
everything because you’re not going to go home. You’re not going to
come in this courtroom and act like you’re in the streets.
You have a right to appeal this court’s decision.
THE DEFENDANT: You accused me of something that I didn’t
do, okay, and I ain’t used to that. So now. . .
THE COURT: I want the record to reflect that it’s five minutes
until 9:00.
THE DEFENDANT: And it’s bulls**t. It was three books. It
was not four. You got that? If you look at the video, it was three
books.
CRIMINAL BAILIFF: Ma’am - -
THE DEFENDANT: I’m going to go to jail again because you’re
all full of s**t.
CRIMINAL BAILIFF: Ma’am.
THE DEFENDANT: F**k you.
THE COURT: No.
THE DEFENDANT: Take me. I don’t give a f**k.
THE COURT: Put them on her.
THE DEFENDANT: All of you are full of s**t.
You go. You don’t want to go to jail.
UNIDENTIFIED WOMAN: I’ll go to jail.
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OHIO FIRST DISTRICT COURT OF APPEALS
UNIDENTIFIED WOMAN: Don’t hit me. The lady said I have
to go to jail.
THE COURT: I did not say you had to - - I did not.
THE DEFENDANT: You can say whatever you all want to say,
and it’s supposed to be all right. There was only three motherf**king
books.
THE COURT: Make sure you get all of that.
THE DEFENDANT: There was only three. Look at the
motherf**king video. It was only three. F**k you. You are all full of
s**t. That’s what - - you’re all full of s**t.
THE COURT: The sentence is 180 days. Get her out of here.
THE DEFENDANT: Take me to jail. You are all full of s**t.
THE COURT: You all wait.
You take her out of here. Get them to come and get her.
THE DEFENDANT: You are all full of s**t. You don’t even
know how to - - you just bring s**t on people. I didn’t steal the
motherf**king book. It was only three.
***
THE COURT: All right. [Defense counsel] Mr. Inderhees, I’m
not through yet.
MR. INDERHEES: Yes.
THE COURT: She did - - I sentenced her to 180 days and costs.
You do whatever you think you need to do.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In her sole assignment of error, Brown argues that the trial court erred
by failing to comply with Crim.R. 32 at the time of sentencing and by failing to
comply with R.C. 2929.22 when it imposed the maximum jail term. Specifically, she
contends that the court denied her the right of allocution, failed to allow defense
counsel to speak on her behalf, and sentenced her to the maximum sentence without
considering the appropriate sentencing factors.
The Right of Allocution
{¶5} Crim.R. 32(A)(1) provides: “At the time of imposing sentence, the
court shall * * * [a]fford 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.” The Ohio Supreme Court has held that “[t]rial courts must
painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution.” State v.
Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d 1208 (2000).
{¶6} When imposing sentence, it is not enough for a trial court to simply
give defense counsel the opportunity to speak on the defendant’s behalf. See Green
v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). As the
United States Supreme Court has explained, “The most persuasive counsel may not
be able to speak for a defendant as the defendant might, with halting eloquence,
speak for himself.” Id. The right of allocution belongs to the defendant. See State v.
Thompson, 1st Dist. Hamilton No. C-120516, 2013-Ohio-1981, ¶ 5. Therefore, “trial
judges should leave no doubt that the defendant has been issued a personal
invitation to speak prior to sentencing.” Green at 305. This is because “[a] Crim.R.
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OHIO FIRST DISTRICT COURT OF APPEALS
32 inquiry * * * represents a defendant’s last opportunity to plead his case or express
remorse.” Green, 90 Ohio St.3d at 359-360, 738 N.E.2d 1208.
{¶7} When imposing sentence, the trial court must address the defendant
personally and ask whether he or she wishes to make a statement in his or her own
behalf or present any information in mitigation of punishment. See Crim.R. 32(A);
Green, 90 Ohio St.3d at 359-360, 738 N.E.2d 1208. If a trial court imposes sentence
without first asking the defendant if she wants to exercise the right of allocution,
resentencing is required unless the error is invited error or harmless. See State v.
Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000), paragraph three of the
syllabus.
{¶8} This court has held that a trial court errs by failing to comply with
Crim.R. 32(A)(1) by personally addressing a defendant at sentencing to determine if
he wishes to exercise his right of allocution. See Thompson, 1st Dist. Hamilton No.
C-120516, 2013-Ohio-1981; State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-
Ohio-2171. In Thompson, we found that the error was harmless where the defendant
requested and was granted an opportunity to personally address the court and make
his case in mitigation before the court finally pronounced sentence. See Thompson
at ¶ 12-13. But more recently, in Jackson, we held that the error was not harmless
where the defendant had twice requested, but was not granted, an opportunity to
address the court and make his mitigation before the court pronounced sentence,
where defense counsel was not afforded an opportunity to address the court on
behalf of the defendant, and where the trial court sentenced the defendant to the
maximum prison term. See Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-
2171.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} In this case, unlike Jackson, the trial court afforded the defendant and
defense counsel the opportunity to present information in mitigation of punishment.
Despite this opportunity, counsel elected not to speak on Brown’s behalf, therefore
waiving on appeal any issue concerning counsel’s right to speak in allocution. And
Brown took full advantage of the opportunity by engaging in a vulgar and profanity-
laden tirade. Following our review of the record, we are convinced that the trial
court committed no error.
{¶10} Brown also argues that the trial court abused its discretion when it
sentenced her to the longest possible jail term for the offense. Where the trial court
imposes a misdemeanor sentence within the statutory range for the offense, we
presume that the trial court considered the appropriate misdemeanor-sentencing
considerations set forth in R.C. 2929.21 and 2929.22. See State v. Jones, 1st Dist.
Hamilton No. C-140241, 2015-Ohio-490, ¶ 20; State v. Pate, 1st Dist. Hamilton Nos.
C-130109, C-130110 and C-130112, 2013-Ohio-3740, ¶ 9. In this case, Brown’s 180-
day sentence was within the range for the offense. See R.C. 2929.24(A)(1). And
given the evidence presented by the state at trial, we conclude that the court did not
abuse its discretion.
{¶11} Consequently, we overrule the sole assignment of error, and we affirm
the judgment of the trial court.
Judgment affirmed.
FISCHER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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