State v. Osume , 2015 Ohio 3850 ( 2015 )

[Cite as State v. Osume, 2015-Ohio-3850.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140390
TRIAL NO. B-1200855
Plaintiff-Appellee, :
vs. : O P I N I O N.
SANI OSUME, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: September 23, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Schuh & Goldberg, LLP., and Brian T. Goldberg, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Presiding Judge.
{¶1} Defendant-appellant Sani Osume challenges the trial court’s
judgment revoking community control and imposing a 15-month sentence of
imprisonment. Because the trial court did not afford Osume his right of allocution
before imposing sentence, we reverse the sentence, and remand the cause to the trial
court for resentencing.
{¶2} In August 2012, Osume entered a guilty plea to a charge of receiving
a stolen firearm, punishable as a fourth-degree felony. The trial court accepted the
plea and sentenced Osume to a one-year term of community control with the
condition of intensive supervision by the probation department. At the sentencing
hearing, the trial court notified Osume that if he violated the terms of community
control, the court would impose an 18-month prison term.
{¶3} In response to a question from Osume’s counsel about restrictions on
Osume’s possession of firearms, the trial court stated:
No, he is charged with receiving. He is not charged with a
disability offense. I am not suggesting that I am precluding him from
possessing a firearm in the future, unless he gets a felony drug
conviction or a crime of violence, which he doesn’t have.
He is able to possess a firearm legally; he just can’t carry it
unless he has a CCW permit, and you can’t get one while you are on
probation or community control. But he is allowed to have a firearm
under the Constitution, and it’s not an offense.
{¶4} In February 2013, in response to a community-control violation,
Osume’s community-control sanction was continued until August 2014. On May
29, 2014, during a visit to Osume’s residence, probation officers found loaded
weapons, marijuana, and other drug paraphernalia. As a result, community-control
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OHIO FIRST DISTRICT COURT OF APPEALS
violations were filed against Osume. Probation officers alleged that Osume had failed to
conduct himself properly by possessing firearms, marijuana, and drug paraphernalia, in
violation of Rule 1. They claimed that Osume had violated Rule 4 by testing positive for
marijuana and by failing to appear for two urinalysis screenings. They also alleged that
Osume had violated Rule 8 by failing to appear for probation office visits.
{¶5} Without objection by either party, the trial court conducted the probable-
cause and community-control-revocation hearings in a single proceeding. At the joint
hearing, Osume’s mother, his probation officer, and Osume himself offered
statements, though only Osume’s mother was administered an oath before speaking.
At the completion of the proceeding, the trial court found Osume in violation of
Rules 1 and 4 of his community control. The court refused to find a violation of Rule
8.
{¶6} Immediately after finding the violations, the trial court declared,
“And I’m going to sentence you in the following manner.” Addressing Osume’s trial
counsel, the court asked, “Anything you’d, like to say * * * before I move forward
with sentence?” In mitigation, Osume’s counsel offered that Osume was employed
and had attempted to pay the ordered costs and fines.
{¶7} The trial court then inquired, “Anything from the State? * * *
Anything from probation?” Neither chose to make a comment. Without affording
Osume an opportunity to speak on his own behalf, the trial court imposed a 15-
month term of imprisonment. Osume appealed.
{¶8} In his first assignment of error, Osume asserts that the trial court
erred in finding that he had violated the terms of his community control. He argues
that the state failed to adduce sufficient evidence of violations. First, Osume
maintains that he could not have been violated for being found with firearms in his
residence when the trial court, at the original sentencing, had stated that he was
permitted to possess firearms. Next, Osume maintains that the state offered only
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OHIO FIRST DISTRICT COURT OF APPEALS
“bare bones testimony” that marijuana had been found at his residence, and that he
had tested positive for marijuana and had missed two urinalysis screenings. We
disagree.
{¶9} In order to establish a community-control violation, the state must
present substantial evidence that the defendant violated the terms of his community
control. State v. McCants, 1st Dist. Hamilton No. C-120725, 2013-Ohio-2646, ¶ 11;
see State v. Dockery, 187 Ohio App. 3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, ¶ 10
(1st Dist.). “Substantial evidence has been defined as being more than a scintilla of
evidence, but less than a preponderance.” McCants at ¶ 11.
{¶10} Here, the state presented the unrebutted testimony of Osume’s
probation officer that an inspection of Osume’s residence uncovered loaded
firearms, including a submachine gun, plus three separate bags of marijuana and
drug paraphernalia. The probation officer also testified that Osume had tested positive
for marijuana in his urine in April 2014, and had failed to appear for two scheduled
urinalysis screenings.
{¶11} The state maintains that the trial court’s 2012 remark concerning firearm
possession was simply the court’s acknowledgement that Osume had not been convicted
of a disability offense. Thus its apparent grant of permission to possess firearms referred
only to a time after the successful completion of the community-control sanction. But we
need not discern the import of the trial court’s remark. Even if Osume had been
permitted to possess firearms during community control, the state adduced substantial
evidence that Osume had violated Rule 1 by possessing marijuana and drug
paraphernalia.
{¶12} Osume admitted to testing positive for marijuana, but offered an
explanation for the test results. The trial court was entitled to disregard Osume’s
statement that he had tested positive only because he had been in proximity to others
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OHIO FIRST DISTRICT COURT OF APPEALS
smoking the illegal substance. Moreover, Osume did not rebut the probation officer’s
testimony that Osume had failed to submit to scheduled urinalysis on two occasions.
{¶13} Therefore, the trial court’s finding that Osume had violated the terms of
his community control was supported by substantial evidence, and will not be disturbed
on appeal. See McCants, 1st Dist. Hamilton No. C-120725, 2013-Ohio-2646, at ¶ 11;
see also Dockery, 187 Ohio App. 3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, at ¶ 10.
The first assignment of error is overruled.
{¶14} In his second assignment of error, Osume contends that he was denied
due process of law when witnesses called at the joint hearing were not sworn in prior to
testifying, in violation of Evid.R. 603. Osume argues that while his mother had testified
under oath, neither he nor his probation officer had been sworn in before making
statements. The state agrees that it was error for unsworn testimony to be admitted as
evidence, but that any error was forfeited by Osume’s failure to bring the error to the trial
court’s attention.
{¶15} A community-control revocation hearing is not a stage of the criminal
prosecution. See Dockery at ¶ 10. It is an informal hearing to which the rules of evidence
“do not apply.” Evid.R. 101(C)(3); see McCants at ¶ 14. But the minimal demands of
due process do require that a defendant be afforded the right to confront and cross-
examine adverse witnesses. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36
L. Ed. 2d 656 (1973); see also McCants at ¶ 14. Some courts have argued that the right to
confront and cross-examine witnesses “technically cannot occur absent formally
swearing in those witnesses.” E.g., State v. Bailey, 7th Dist. Mahoning No. 11 MA 3,
2012-Ohio-1694, ¶ 20.
{¶16} But we have long held that the due-process requirements of a probation-
or community-control-violation proceeding may be forfeited if the defendant fails to
object timely. See State v. Henderson, 62 Ohio App. 3d 848, 853, 577 N.E.2d 710 (1st
Dist.1989); see State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d
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 OHIO FIRST DISTRICT COURT OF APPEALS
306, ¶ 23 (describing the failure to preserve an objection as “forfeiture” subject to
review for plain error under Crim.R. 52(B)). This is particularly the case where the
failure to administer an oath can easily be corrected if timely brought to the trial court’s
attention. See Bailey at ¶ 23; see also State v. Norman, 137 Ohio App. 3d 184, 198,
738 N.E.2d 403 (1st Dist.1999) (applying forfeiture to the admission of unsworn
testimony in a criminal prosecution).
{¶17} Here, Osume failed to request that he and the probation officer be
sworn in before testifying. He failed to object when the probation officer responded
to questions about the violations without an oath being administered. Thus, he
forfeited any error save plain error. See Henderson at 853; see also Bailey at ¶ 24.
Since Osume had the opportunity to present his side of the story and to question the
probation officer, we hold that the outcome of the proceeding would not clearly have
been otherwise but for the omission by the court. No manifest miscarriage of justice
occurred which would have mandated reversal of the revocation findings. See
Crim.R. 52(B); see also State v. Rogers, Slip Opinion No. 2015-Ohio-2459, ¶ 3. The
second assignment of error is overruled.
{¶18} In his final assignment of error, Osume asserts that the trial court erred
by denying him the right of allocution, after it found him in violation of the terms of
community control, and before it imposed the sanction for those violations. The state
does not argue that Osume had no right of allocution when he was sentenced for a
community-control violation. Instead it maintains that since Osume had multiple
opportunities to speak before the trial court’s violation determination, he was effectively
provided the right of allocution.
{¶19} 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). When imposing sentence, the trial court must
address the defendant personally and ask whether he wishes to make a statement in his
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OHIO FIRST DISTRICT COURT OF APPEALS
own behalf or present any information in mitigation of punishment. See Crim.R.
32(A)(1); see also R.C. 2929.19(A).
{¶20} Last year, we held that a defendant being sentenced to prison
following a community-control violation has a right to allocution under R.C.
2929.19(A)(1) and Crim.R. 32(A)(1). State v. McAfee, 1st Dist. Hamilton No. C-130567,
2014-Ohio-1639, ¶ 14. We rejected the contention that a defendant ought not to be
afforded a “second” right to allocution since no new sentence was being imposed,
and the trial court was simply reinstating the prison term that the defendant had
been warned of at the original sentencing. Id.
{¶21} Instead, we followed the Supreme Court’s determination, in State v.
Fraley, 105 Ohio St. 3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, that the sentencing
hearing conducted after finding a community-control violation constitutes “a second
sentencing hearing[,] [at which] the court sentences the offender anew and must comply
with the relevant sentencing statutes.” McAfee at ¶ 14. This court has long acknowledged
that the sanctions of imprisonment and community control are mutually exclusive
alternatives. In State v. Smith, 1st Dist. Hamilton No. C-980887, 1999 Ohio App. LEXIS
4311, *13 (Sept. 17, 1999), we held that that the felony-sentencing statutes make no
provision for the suspension, then imposition, of a prison term, upon the defendant’s
violation of community control. Compare R.C. 2929.25(A)(1)(b) (for misdemeanor
offenses, a trial court that imposes a jail term may suspend all or part of the jail term and
place the offender under a community-control sanction). The Ohio Supreme Court has
recently reiterated that the General Assembly intended prison and community-control
sanctions as alternative sentences for a felony offense, and that a trial court must impose
either a prison term or a community-control sanction absent an express exception. State
v. Anderson, 143 Ohio St. 3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31.
{¶22} Thus, following a community-control violation, if a trial court imposes
sentence without first asking the defendant if he wants to exercise the right of allocution,
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OHIO FIRST DISTRICT COURT OF APPEALS
resentencing is required unless the error is invited error or harmless. See McAfee at ¶ 14;
see also State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-2171, ¶ 8; State v.
Campbell, 90 Ohio St. 3d 320, 738 N.E.2d 1178 (2000), paragraph three of the syllabus.
{¶23} The right of allocution belongs to the defendant himself. See State v.
Thompson, 1st Dist. Hamilton No. C-120516, 2013-Ohio-1981, ¶ 5. Its purpose is “to
permit the defendant to speak on his own behalf or present any information in mitigation
of punishment.” State v. Short, 129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶
85. Therefore, when imposing sentence, it is not enough for the trial court to simply give
defense counsel the opportunity to speak on the defendant’s behalf. See Green, 90 Ohio
St.3d at 359-360, 738 N.E.2d 1208.
{¶24} Here, the trial court failed to address Osume personally and ask if he
wished to make a statement on his own behalf or present any information in mitigation
of punishment before imposing sentence. This was error, and the unusual circumstances
that would deem the error harmless are not present in this case. Compare State v.
Reynolds, 80 Ohio St. 3d 670, 684, 687 N.E.2d 1358 (1998) (holding harmless a trial
court’s denial of allocution where the defendant had made an unsworn statement in the
penalty phase and had sent a letter to the trial court, and where defense counsel had
made a statement on behalf of the defendant). Since Osume was not afforded an
opportunity to speak in mitigation before the trial court imposed his sentence, we sustain
the third assignment of error. See State v. Jackson, 1st Dist. Hamilton No. C-140384,
2015-Ohio-2171, ¶ 13.
{¶25} We, therefore, reverse Osume’s sentence, and we remand the cause to the
trial court for resentencing in accordance with this opinion and the law. See Campbell,
90 Ohio St. 3d 320, 738 N.E.2d 1178, at paragraph three of the syllabus. We affirm the
trial court's judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
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OHIO FIRST DISTRICT COURT OF APPEALS
DEWINE, J., concurs.
MOCK, J., concurs in part and dissents in part.
MOCK, J., concurring in part and dissenting in part.
{¶26} I join with the majority’s resolution of the first two assignments of error.
I disagree, however, with the resolution of the third assignment of error for the reason set
forth in my dissent in State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-
2171. The right of allocution does not apply when a defendant is sentenced for a
community-control violation. Id. at ¶ 24. Therefore, I respectfully dissent in part, and I
would affirm the trial court’s judgment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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