State v. Jackson (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Jackson, Slip Opinion No. 2016-Ohio-8127.]
NOTICE
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SLIP OPINION NO. 2016-OHIO-8127
THE STATE OF OHIO, APPELLANT, v. JACKSON, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Jackson, Slip Opinion No. 2016-Ohio-8127.]
Criminal Law—Allocution—Crim.R. 32(A)(1) and R.C. 2929.19(A)—A trial court
must afford an offender an opportunity for allocution at a community-
control-revocation hearing before imposing a sentence for violating the
conditions of community control.
(No. 2015-1137—Submitted May 31, 2016—Decided December 15, 2016.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-140384, 2015-Ohio-2171.
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O’CONNOR, C.J.
{¶ 1} In this appeal, we address the right of offenders who have violated
community-control sanctions to speak on their own behalf at community-control-
revocation hearings. We hold that a trial court must afford an offender an
opportunity for allocution at a community-control-revocation hearing before
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imposing a sentence for violating the conditions of community control.
Accordingly, we affirm the judgment of the First District Court of Appeals.
Relevant Background
{¶ 2} Appellee, Dominic Jackson, pled guilty to a fourth-degree-felony
charge of receiving stolen property, specifically a firearm, in September 2012. The
trial court sentenced him to two years of community control and required him to
comply with the court’s standard community-control conditions, to take the
General Educational Development (“GED”) test and obtain GED certification, to
pay court costs and probation fees, and to forfeit the firearm. The court informed
Jackson that if he violated his community-control sanctions, he could be sentenced
to an 18-month prison term.
{¶ 3} In May 2014, the trial court found that Jackson had failed to abide by
the requirements of community control by failing to attend scheduled meetings with
his parole officer and failing to make payments toward his court costs and probation
fees.
{¶ 4} In June 2014, the court held a hearing on the community-control
violations. Jackson appeared with counsel. Jackson stipulated to the facts of the
violations and to a finding of guilty. Initially, the court stated its intention to
continue the hearing for 60 days to give Jackson “a chance to get [his] act together”
and to work toward his GED certification. However, after a short exchange
between the judge and Jackson, which the judge described as being accompanied
by “sighs and * * * eye rolling,” the trial court terminated community control and
sentenced Jackson to an 18-month prison sentence. When Jackson attempted to
explain himself, the judge told him to be quiet.
{¶ 5} Jackson appealed, arguing in relevant part that the court violated
Crim.R. 32(A)(1) by imposing a sentence without asking him if he wished to
exercise his right to allocution. The state asserted that there is no right to allocution
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at a community-control-revocation hearing and therefore that the court did not
violate any laws or rules.
{¶ 6} The First District Court of Appeals agreed with Jackson, concluding
that the hearing was a sentencing hearing and, accordingly, that Crim.R. 32(A) and
R.C. 2929.19(A) entitled Jackson to make a statement in mitigation of his
punishment. The appellate court found that the error was not harmless and
remanded the cause to the trial court for resentencing.
{¶ 7} The state appealed, and we accepted jurisdiction to address the
following proposition of law: “The right of allocution does not apply to community
control violation hearings.” See State v. Jackson, 144 Ohio St. 3d 1425, 2015-Ohio-
5225, 42 N.E.3d 762.
Analysis
{¶ 8} This case requires the court to consider the applicability of R.C.
2929.19(A) and the related sentencing rule, Crim.R. 32(A)(1).
{¶ 9} R.C. 2929.19 contains the statutory requirements applicable to courts
during a sentencing hearing. In relevant part, that statute provides:
The court shall hold a sentencing hearing before imposing a
sentence under this chapter upon an offender who was convicted of
or pleaded guilty to a felony * * *. The court shall inform the
offender of the * * * 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.
R.C. 2929.19(A). And Crim.R. 32(A)(1), concerning the imposition of a sentence,
states that “the court shall * * * 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.”
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{¶ 10} R.C. 2929.19(A) and Crim.R. 32(A)(1) unambiguously require that
an offender be given an opportunity for allocution whenever a trial court imposes a
sentence at a sentencing hearing. State v. Campbell, 90 Ohio St. 3d 320, 738 N.E.2d
1178 (2000), paragraph one of the syllabus.
{¶ 11} This case presents the issue of whether a community-control-
revocation hearing is a sentencing hearing for purposes of R.C. 2929.19(A) and
Crim.R. 32(A)(1). We conclude that it is. We have previously stated that
“[f]ollowing a community control violation, the trial court conducts a second
sentencing hearing.” State v. Fraley, 105 Ohio St. 3d 13, 2004-Ohio-7110, 821
N.E.2d 995, ¶ 17. We reaffirmed Fraley earlier this year, stating in regard to a
community-control-revocation hearing that “ ‘[a]t this second hearing, the court
sentences the offender anew and must comply with the relevant sentencing
statutes.’ ” State v. Heinz, 146 Ohio St. 3d 374, 2016-Ohio-2814, 56 N.E.3d 965,
¶ 15, quoting Fraley at ¶ 17. See also State v. Brooks, 103 Ohio St. 3d 134, 2004-
Ohio-4746, 814 N.E.2d 837, ¶ 20 (referring to a community-control-violation
hearing as a “sentencing proceeding”).
{¶ 12} The state argues that “trial courts are imposing an already existing
sentence,” when they sentence for a violation of community-control conditions and
that a community-control-revocation hearing is therefore not a sentencing hearing
at which an offender must be afforded an opportunity for allocution. But this
argument misstates the role of the court at a community-control-revocation hearing.
{¶ 13} “If the conditions of community control are violated, R.C.
2929.15(B) provides the trial court a great deal of latitude in sentencing the
offender.” Brooks at ¶ 20. The court must “consider both the seriousness of the
original offense leading to the imposition of community control and the gravity of
the community control violation.” Id. After weighing these factors, the only
restriction is that the judge may not impose a prison sentence longer than that which
the trial court stated it could impose at the original sentencing hearing. But there
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January Term, 2016
is no predetermined sentence. The community-control-sanctions statute plainly
grants the trial court discretion to impose a longer period of community control, a
more restrictive community-control sanction, or a prison term of any length within
the range of that available for the original offense, up to the maximum term the trial
court specified at the first sentencing hearing. R.C. 2929.15(B).
{¶ 14} A trial judge’s broad discretion to fashion a sentence after finding
that the offender violated the conditions of community control reinforces our
conclusion that a community-control-revocation hearing is a sentencing hearing for
purposes of R.C. 2929.19(A) and Crim.R. 32(A)(1). Permitting an offender to
speak on his or her own behalf at a community-control-revocation hearing serves
the criminal-justice system’s essential goals of fairness and due process.
Remedy
{¶ 15} It is settled that if the trial court did not offer an offender the
opportunity for allocution at a sentencing hearing and the offender raises the issue
on appeal, resentencing is required unless the error is invited or harmless.
Campbell, 90 Ohio St. 3d 320, 738 N.E.2d 1178, at paragraph three of the syllabus.
We conclude that resentencing is also required if an offender is not given an
opportunity for allocution at the sentencing hearing following community-control
revocation, absent invited or harmless error.
{¶ 16} We agree with the First District that the trial court’s error was neither
invited nor harmless. Jackson attempted to speak several times in his own defense
at the hearing, and the court told him to be quiet before imposing the maximum
prison term available in this case without affording him the opportunity to speak.
We recognize that Jackson fails to identify what he could have said in support of a
less severe penalty. But we agree with the First District’s reasoning in this case
that we should not require Jackson to present evidence to establish that the error
was not harmless given that on appeal he is limited to the record that was made in
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the trial court and cannot present new evidence. See also State v. Land, 7th Dist.
Mahoning No. 00-CA-261, 2002-Ohio-1531, ¶ 21.
Conclusion
{¶ 17} Based on the unambiguous language of R.C. 2929.19(A) and
Crim.R. 32(A)(1) and on our own precedent, Jackson was entitled to an opportunity
for allocution prior to receiving a sentence at the hearing at issue in this case. We
hold that a hearing following community-control revocation is a sentencing hearing
and that a trial court must abide by R.C. 2929.19(A) and Crim.R. 32(A)(1) by
affording an offender an opportunity for allocution prior to imposing a sentence at
such a hearing.
{¶ 18} We therefore affirm the judgment of the First District, which held
that Jackson was entitled to an opportunity for allocution and which remanded this
case to the trial court to hold a new sentencing hearing at which Jackson has the
right to allocution.
Judgment affirmed.
PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and O’NEILL, JJ., concur.
FRENCH, J., concurs in judgment only.
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Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellant.
Timothy J. Bicknell, for appellee.
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski,
Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public
Defender.
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