State v. Roach , 2016 Ohio 4656 ( 2016 )

[Cite as State v. Roach, 2016-Ohio-4656.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 15 BE 0031
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
SCOTT MICHAEL ROACH, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Belmont County,
Ohio
Case No. 14-CR-294
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Dan Fry
Belmont County Prosecutor
146 A West Main Street
St. Clairsville, Ohio 43950
For Defendant-Appellant: Atty. Robert. A. Miller
Miller Law Office
329 North Fourth Street
Steubenville, Ohio 43952
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 17, 2016
[Cite as State v. Roach, 2016-Ohio-4656.]
ROBB, J.
{¶1} Defendant-Appellant Scott Michael Roach appeals the sentence
entered by the Belmont County Common Pleas Court. Appellant argues the trial
court denied him his right of allocution at the sentencing hearing in violation of
Crim.R. 32 (A)(1). For the following reasons, we conclude Appellant was provided
the right of allocution at sentencing, and the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On October 26, 2014, Appellant threw a sippy cup full of milk at his six-
year-old autistic son. The cup hit the child in the eye and caused a large bruise on
the child’s face. He was arrested two days later on the charge of child endangering
in violation of R.C. 2919.22(B)(1), which division relates to the abuse of a child. The
offense was a fourth degree felony due to a prior rape conviction involving a child.
{¶3} On March 30, 2015, Appellant pled guilty to fourth-degree felony child
endangering. The court ordered a pre-sentence investigation and victim impact
statement. The sentencing hearing proceeded on April 13, 2015. Defense counsel
acknowledged that Appellant responded poorly to a stressful situation by acting in a
fit of rage. He said the child’s injury was not serious, noting the offense would have
been a misdemeanor if not for the prior conviction from the early 1990’s. Counsel
provided the court with a report from the Tri-County Help Center, showing Appellant
completed a domestic abuse intervention program. Appellant enrolled in this twelve-
week program on his own initiative. (Tr. 3).
{¶4} Defense counsel explained the incident resulted in divorce proceedings
and a no-contact order by the domestic relations court as to the subject child and
Appellant’s two-year-old child. (Tr. 3-4). It was said Appellant understood the hard
work required to address his issues. Counsel asked for community control with
incarceration via placement at EOCC (Eastern Ohio Correction Center). (Tr. 4). The
following colloquy then occurred:
THE COURT: Thank you, [defense counsel]. Mr. Roach, is there
anything you’d like to add, sir?
THE DEFENDANT: I wished it would never have happened, but …
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THE COURT: Everyone in this courtroom wishes that, sir.
THE DEFENDANT: I understand that.
THE COURT: All right. Is [the mother] present? (Tr. 4-5).
{¶5} The child’s mother referred to the victim impact statement. The court
asked defense counsel a question about the prior offense and then made sentencing
findings. The court sentenced Appellant to a maximum sentence of eighteen months
in prison. Appellant appealed from the April 13, 2015 sentencing entry. A new
attorney was appointed for purposes of appeal.
ASSIGNMENT OF ERROR
{¶6} Appellant’s sole assignment of error provides:
“THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING THE
APPELLANT THE RIGHT OF ALLOCUTION.”
{¶7} Appellant asserts the trial court denied his allocution right in violation of
Crim.R. 32(A)(1). He points out that the trial court’s affirmative duty to offer allocution
is not an empty ritual; it provides the defendant his last opportunity to express
remorse or provide other mitigating circumstances. Citing R.C. 2929.12(C)(5), (E)(5)
(listing whether the defendant shows genuine remorse as a sentencing factor).
Appellant contends that after he began exercising his right of allocution, the trial court
interrupted him and provided him with no further opportunity to address the court.
{¶8} Crim.R. 32(A) provides: “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.” The genesis of this rule is the common law right of allocution. See,
e.g., Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).
{¶9} As Appellant points out, “the 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, 90 Ohio St.3d 352, 359-60, 738 N.E.2d 1208 (2000) (reversing a
capital case where the court’s invitation was not unambiguously made to the
defendant personally and where it was ambiguous as to whether the invitation
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applied to capital offenses as well as non-capital offenses). The trial court has the
affirmative obligation to personally ask the defendant if he wishes to exercise his
allocution right. See id. at 359; State v. Campbell, 90 Ohio St.3d 320, 324-325, 738
N.E.2d 1178 (2000). See also Green, 365 U.S. at 305 (“Hereafter trial judges should
leave no room for doubt that the defendant has been issued a personal invitation to
speak prior to sentencing.”)
{¶10} As a result, the right is not waived by a mere lack of objection.
Campbell, 90 Ohio St.3d 324. The right can, however, be waived if the trial court
provides the defendant the opportunity to speak, and the defendant fails to do so. Id.
at 325. A violation of the right of allocution is also subject to the invited error and
harmless error doctrines. Id. at 326. As to harmless error, the Supreme Court has
explained, “a trial court's failure to address the defendant at sentencing is not
prejudicial in every case.” Id. at 325. The Court found an allocution omission to be
harmless error in a capital case where defense counsel made a statement to the
judge on the defendant's behalf and the defendant made an unsworn statement to
the jury in the penalty phase and sent a letter to the judge. State v. Reynolds, 80
Ohio St.3d 670, 684, 687 N.E.2d 1358 (1998).
{¶11} Here, the trial court personally invited Appellant to speak prior to
imposing sentence. The invitation was not ambiguous. The exact language
employed by the rule is not required. State v. Wallace, 7th Dist. No. 12MA180, 2013-
Ohio-2871, ¶ 10-11 (after defense counsel spoke, the court made some direct
comments to the defendant and then asked, “Anything you want to say about these
matters, sir?”); State v. Crable, 7th Dist. No. 04BE17, 2004-Ohio-6812, ¶ 20 (after
defense counsel made his statement, the trial court asked, “Mr. Crable, anything that
you wish to say before I impose a sentence here?”). See also State v. Massey, 5th
Dist. No. 2006-CA-370, 2007-Ohio-3637, ¶ 30-31.
{¶12} Appellant initially accepted this invitation to exercise his allocution right.
He began, “I wished it would never have happened, but…” Appellate counsel
believes the trial court cut off Appellant mid-sentence by stating, “Everyone in this
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courtroom wishes that, sir.” However, the fact that the court spoke after Appellant
uttered the word “but” does not necessarily mean the court interrupted him.
{¶13} Rather, it would appear Appellant stopped speaking after expressing
his remorse. “A record * * * unlike a play, is unaccompanied by stage directions” and
thus does not disclose significant gestures or express the length of pauses, for
instance. See Green, 365 U.S. at 304-305. The record here suggests Appellant
trailed off mid-sentence.
{¶14} This is considered a “deliberately incomplete sentence.” Chicago
Manual of Style 13.53 (16th ed.2010). The common practice is: “Three dots are
used at the end of a quoted sentence that is deliberately left grammatically
incomplete.” Id. The transcript uses an ellipsis, or three dots, after Appellant’s
sentence.
{¶15} By way of contrast, the court clearly interrupted counsel at page two in
the transcript. To indicate this interruption, the court reporter used two dashes. This
is also consistent with the Chicago Manual of Style. See id. at 6.84 (using dashes to
indicate interruption). We conclude the record does not indicate the trial court
interrupted Appellant.
{¶16} In addition, even if a court interrupts a defendant’s allocution, his right is
not violated if he is permitted to speak after the interruption. See State v. Bodnar, 7th
Dist. No. 12-MA-77, 2013-Ohio-1115, ¶ 12. Contrary to Appellant’s argument, he
was provided further opportunity to speak after the court commented, “Everyone in
this room wishes that, sir.” This opportunity is indicated by the fact that Appellant
responded, “I understand that.” Appellant did not continue speaking thereafter.
There is no indication he had more to say. We also note the court’s alleged
interruption was a brief comment on Appellant’s statement, as opposed to a lengthy
commentary.
{¶17} Furthermore, defense counsel already gave a statement on Appellant’s
behalf and provided information in mitigation of punishment. He spoke of the twelve-
week domestic violence course Appellant completed; he presented documentary
evidence of this fact. Counsel described the injury as non-serious, noting the prior
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conviction elevated the offense from a misdemeanor to a felony. He voiced that
Appellant understood he needed to work hard to address his issues, including how to
respond to stressful situations involving his children. He asked for time at EOCC and
then community control.
{¶18} Plus, the court received Appellant’s written statement two weeks before
sentencing where he said he had been under stress due to the house falling apart,
his spouse not helping around the house, and worries about how to heat the house
with winter coming. Appellant said he did not intend to hit his son with the cup when
he threw it in anger, urging it was a tragic accident. He declared his love for his
children and said he missed them. He noted that he could not change what
happened and expressed he was “truly sorry for what happened.”
{¶19} Even assuming an irregularity in allocution existed, prejudice would be
lacking; any irregularity would be harmless due to the presentation by defense
counsel, Appellant’s written statement, the trial court’s personal invitation for
Appellant to speak, and the allocution by Appellant that did occur.
{¶20} For all of these reasons, the trial court’s judgment is affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.