State v. Yates , 195 Ohio App. 3d 33 ( 2011 )

[Cite as State v. Yates, 195 Ohio App.3d 33, 2011-Ohio-3619.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
THE STATE OF OHIO, :
: Appellate Case No. 24105
Appellee, :
: Trial Court Case No. 09-CR-3827
v. :
: (Criminal Appeal from
YATES, : (Common Pleas Court)
:
Appellant. :
:
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OPINION
Rendered on the 22nd day of July, 2011.
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Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Kirsten A.
Brandt, Assistant Prosecuting Attorney, for appellee.
Ashelman & Lowe, Scott A. Ashelman, and Aaron D. Lowe, for appellant.
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Per Curiam.
{¶ 1} Defendant-appellant, RejuanYates, appeals from his conviction and sentence
for possession of controlled substances, after a negotiated guilty plea. Yates contends that the
trial court erred in accepting his guilty plea because he was obviously intoxicated; the trial
court relied on matters outside the record as a basis for enhancing his sentence; and the trial
court sentenced him without making statutorily required factual findings.
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{¶ 2} We conclude that there is evidence in the record to support the trial court’s
finding that Yates’s plea was voluntary and that the trial court did not err in failing to make
certain findings that were required by statute before State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, severed that requirement from the statute. The trial court did err, however,
by giving apparent consideration to the report of a bail bondsman at the sentencing hearing
without giving Yates a chance to respond to the report. Accordingly, Yates’s sentence is
reversed, and this cause is remanded for further proceedings consistent with this opinion.
I
{¶ 3} RejuanYates pleaded guilty to possession of controlled substances on a promise
that he would receive a two-year minimum sentence. The trial court made it clear to Yates at
the plea hearing that the two-year sentence agreement was conditioned on Yates appearing for
his presentence-investigation interview and for his sentencing hearing. The trial court made it
clear to Yates that should he fail to appear at either time, the trial court could, in its discretion,
sentence Yates to any prison term within the two-to-eight year range prescribed by statute.
Yates failed to appear at either the interview or the sentence hearing.
{¶ 4} At the rescheduled sentencing hearing, after Yates was apprehended, the trial
court reminded Yates of the plea condition and asked him if he understood that as a result of
the broken condition, the court could sentence him to more than two years of imprisonment.
Yates said he understood. The trial judge then asked Yates if he wanted to make a statement
or tell the court anything before sentencing. In response, Yates explained in detail that he
was attending to his recently widowed and elderly grandmother, who was in danger of
becoming homeless, and those duties kept him from attending the originally scheduled
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sentencing hearing. Defense counsel vouched for his client.
{¶ 5} The trial court responded by telling Yates that it had a report from his bail
bondsperson detailing how he had been transporting drugs interstate the entire time he was out
on bond. Based on the report, the trial court concluded that Yates’s story was an
“unadulterated lie.” The trial court opined that Yates had “thumbed [his] nose at everything
other than what [he] felt like doing,” that he “chose to violate the agreement,” and that his
story about his grandmother was “a bunch of garbage.” At one point, Yates raised his hand
partway indicating an intent to speak. But the trial court cut him off, stating:
{¶ 6} “No, sir, this is my turn to talk now. Because, as I said, your bondsperson was
well aware from talking with your girlfriend that the two of you were running cars
continuously between Dayton and Cincinnati the two months that we couldn’t find you. So I
don’t find one word of what you’ve said to be credible.”
{¶ 7} Allowing no more discussion, the trial court sentenced Yates to five years’
imprisonment. The bondsperson’s report is not in the record on appeal and does not appear to
have been shown to Yates or to his counsel.
II
{¶ 8} Yates’s first assignment of error is as follows:
{¶ 9} “The trial court erred when it accepted a guilty plea from defendant without
first properly ascertaining whether the plea was knowingly, intelligently, and voluntarily
given, as is required by State v. Ballard.”
{¶ 10} Yates contends that the trial judge should have noticed that he was intoxicated
at the sentencing hearing, and that his plea was therefore not knowing and voluntary. In
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support, Yates claims that upon being asked whether he was intoxicated, he paused for ten
seconds and made only an unintelligible sound.
{¶ 11} We find no support for this claim in the record. We have reviewed the
audiovisual recording of the proceeding and find that only two seconds passed before Yates
responded with an audible “No.” Nothing in Yates’s verbal or physical behavior indicated
intoxication. From the record, we cannot say that the trial court erred by finding that Yates’s
plea was knowing and voluntary. The first assignment of error is overruled.
III
{¶ 12} “The trial court erred by failing to remain neutral and detached when it engaged
in extra-judicial investigation into the facts surrounding the case, and by conducting
impermissible judicial fact-finding in violation of defendant’s 6th Amendment rights as
defined by Blakely v. Washington.”
{¶ 13} Yates argues that the bondsperson’s report was unsubstantiated and inaccurate
and therefore the trial court erred in relying on it to enhance Yates’s sentence. Yates cites
State v. Haynes (June 1, 2001), Montgomery App. No. 18410, in arguing that the trial court
could not use any part of the bondsperson’s report to find extra aggravating factors when
imposing sentence. Yates also claims that the trial court abused its discretion by obtaining
the report through an extramural investigation. We disagree.
{¶ 14} Yates never objected to the use of the report, and the trial court never
mentioned the report’s criminal allegations when reciting its reasons for deciding on a
five-year sentence. Thus, it is not clear from this record whether the trial court used the
criminal allegations in the report as a basis for enhancing the sentence, or merely as a basis for
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rejecting Yates’s explanation for his failure to appear. Moreover, although the Haynes court
discussed the need for assessing a document’s reliability when it is used at sentencing, Haynes
did not involve a broken plea condition, which, in this case, vitiated an agreed sentence.
{¶ 15} The record does not establish that the trial judge engaged in an extramural
investigation. By Yates’s own argument, the bondsperson had the motivation to act
independently. Moreover, R.C. 2929.19(B)(1) requires a trial judge to consider the record
and “any information presented at the hearing by any person” that is relevant to the imposition
of sentence. Absent evidence to the contrary, we presume that the bondsperson presented the
report on her own initiative, as the statute contemplates.
{¶ 16} Yates also claims that he never had a meaningful opportunity to withdraw his
plea. He claims he tried to withdraw his guilty plea at the sentencing hearing before the judge
cut him off with “[n]o, sir, this is my turn to talk now.” Because no motion to withdraw the
plea was ever made, we cannot speculate on what Yates might have said had the court let him
speak. See State v. Cooper, Marion App. No. 9-08-42, 2009-Ohio-1922, ¶ 24 (because the
trial court could not presume to know what the defendant might have said in mitigation, it
could not presume to know how his statement might influence the trial court). We do know
that upon introduction of the report, Yates wanted to say something. The issue, therefore, is
whether the trial court erred in denying Yates a chance to speak at that time. That pertains to
Yates’s right of allocution, which we conclude may have been violated.
{¶ 17} R.C. 2929.19 and Crim.R. 32 govern the right of allocution. R.C. 2929.19(A)
states: “At the hearing * * * with the approval of the court, any other person may present
information relevant to the imposition of sentence in the case. The court shall inform the
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offender of the verdict of the jury or finding of the court and ask the offender whether the
offender has anything to say as to why sentence should not be imposed upon the offender."
{¶ 18} Crim.R. 32(A) requires the trial court, at the sentencing hearing, to "(1) [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.”
{¶ 19} The "Crim.R. 32 inquiry is much more than an empty ritual: it represents a
defendant's last opportunity to plead his case or express remorse." State v. Green (2000), 90
Ohio St.3d 352, 359-360. The Ohio Rules of Evidence do not apply at the sentencing
hearing. Evid.R. 101(C)(3). The requirement of allocution is fulfilled when the court’s
conduct clearly shows the defendant and his counsel that each has a right to make a statement
before sentence is imposed. Defiance v. Cannon (1990), 70 Ohio App.3d 821, 828.
{¶ 20} The defendant cannot waive the right before the court makes that personal
address. State v. Campbell (2000), 90 Ohio St.3d 320, 324-325. Otherwise, when a trial
court violates a defendant’s right of allocution, the sentence shall be reversed and the cause
shall be remanded for resentencing, unless the error was invited or harmless. Id. at 326.
{¶ 21} A trial court errs when it does not let the defendant address new information
introduced and considered by the trial court at sentencing. See State v. Castle, Lawrence
App. No. 03CA24, 2004-Ohio-1992, ¶ 9; State v. Sanders, Cuyahoga App. No. 81450,
2003-Ohio-1163, ¶ 13 (trial court erred by not letting defendant address evidence introduced
after defendant’s statement, which the trial court considered before imposing sentence). The
error is presumed prejudicial, because the defendant is prevented from speaking at the
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appropriate time. Sanders at ¶ 13-16.
{¶ 22} Courts have found the prejudice presumption rebutted when the defendant
declined to speak at the proper time or the new evidence is extraneous. See State v. Storey,
Cuyahoga App. No. 87030, 2006-Ohio-3498, ¶ 40. The error will also be harmless when the
defendant does not object to the new information or if the court’s reasons for the enhanced
sentence are unrelated to it. State v. Clark, Crawford App. Nos. 3-05-14 and 3-05-20,
2006-Ohio-1421, ¶ 7 (although the trial court erred in speculating about matters outside the
record, reimposition of sentence was based on violations of the conditional suspension of
sentence and not on the trial court’s speculations).
{¶ 23} Here, the trial judge let Yates and his counsel speak at the start of the
sentencing hearing. But after that, and before actually imposing sentence, the trial court
discussed the bondsperson’s report. The court used that new information to challenge
Yates’s statement. The court then imposed sentence without letting Yates speak again. The
report therefore constituted new information presented at the hearing that was considered by
the trial court after Yates made his statement, but before sentence was imposed.
{¶ 24} We know from the trial court’s comments that defense counsel had been in
contact with the court during Yates’s absence. Perhaps he was apprised of the bail-bond
information. We don’t know. If he had been made aware, then Yates and his counsel had an
opportunity for allocution at sentencing. Yates explained that he missed the original
sentencing to care for his grandmother. The trial court then referred to the bail-bond report,
which apparently belied that excuse.
{¶ 25} A sentencing court has broad discretion to allow the presentation of
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information. “At the sentencing hearing, the court, before imposing sentence, shall consider
the record, any information presented at the hearing by any person pursuant to division (A) of
this section, * * * the presentence investigation report * * * and any victim impact statement *
* *.” R.C. 2929.19(B)(1). Such information may be considered as long as it is “relevant to
the imposition of sentence in the case.” R.C. 2929.19(A). Whatever the court considers for
sentencing should be either part of the presentence investigation or “presented” at the
sentencing hearing before allocution. Consistent with this process, the victim-impact
statement statute specifically includes a right for the defendant to respond. “If the statement
includes new material facts, the court shall not rely on the new material facts unless it
continues the sentencing * * * or takes other appropriate action to allow the defendant * * * an
adequate opportunity to respond to the new material facts.” R.C. 2930.14(B). Thus, a
defendant has an opportunity to contradict new material facts arising from the victim-impact
statement, but only if the court is going to rely on them.
{¶ 26} In this case, we do not know whether Yates or his counsel had an opportunity
to review the bond report prior to sentencing, and we do not know whether the trial court
considered the bond-report information for any purpose other than contradiction of Yates’s
excuse for his absence. Upon remand, the trial court should determine, in logical sequence,
whether it considered the bond report for purposes of sentencing, as opposed to Yates’s
excuse for his nonappearance. If the bond report was considered for sentencing, then the trial
court should determine whether Yates or his counsel was apprised of the bond-report
information before their opportunity for allocution. If not, then Yates should be given an
opportunity to respond to the bond-report information before he is resentenced.
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{¶ 27} We are concerned, also, that the report of the bail bondsperson, upon which the
trial court may have relied in imposing sentence, is not part of the record on appeal. In
reviewing the propriety of a trial court’s sentencing decision, an appellate court must have
before it the evidence and other information upon which the trial court relied in making its
sentencing decision. Upon remand, if the trial court wishes to take the report of the bail
bondsperson into consideration in determining a proper sentence, it should append it to, and
preserve it with, the presentence-investigation report.
{¶ 28} Yates’s second assignment of error is sustained, in part.
IV
{¶ 29} “The trial court erred when it failed to comply with O.R.C. 2929.14 by
sentencing defendant to greater than the shortest term authorized by law on a first felony
incarceration without making a finding that the shortest prison term would demean the
seriousness of the offense or would not adequately protect the public from future harm.”
{¶ 30} Yates argues that the trial court did not make the findings required by R.C.
2929.14 when ordering a sentence above the minimum. But the Supreme Court of Ohio has
held that “[t]rial courts have full discretion to impose a prison sentence within the statutory
range and are no longer required to make findings or give their reasons for imposing * * *
more than the minimum sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,
paragraph three of the syllabus.
{¶ 31} The trial court stated on the record that it had considered the principles and
purposes of sentencing (per R.C. 2929.11) and the seriousness and recidivism factors (per
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R.C. 2929.12) as well as the broken-plea condition and other factors in determining sentence.
The sentence imposed was within statutory guidelines. Accordingly, Yates’s third
assignment of error is overruled.
V
{¶ 32} Yates’s second assignment of error having been sustained in part, and his other
assignments of error having been overruled, his sentence is reversed, and this cause is
remanded for resentencing in accordance with this opinion.
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Judgment reversed
and cause remanded.
FAIN, FROELICH, and HALL, JJ., concur.