Allocution, Right to

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Last updated 1/5/2017
 
Crim. R. 32(A)(1) -- Imposition of sentence.
 
State v. Jackson, Slip Opinion No. 2016-Ohio-8127
 
Trial courts must allow offenders to speak on their own behalf during community-control-revocation hearings before imposing sentences for violating conditions of community control.
 
State v. Matthews,1st Dist. Hamilton No. C-140663, 2015-Ohio-5075
 
Trial court erred in sentencing the defendant where the court failed to address the defendant personally and ask whether she wished to exercise her right of allocution, as required by Crim.R. 32(A)(1).
 
State v. Yates, 195 Ohio App. 3d 22, 2011-Ohio-3619 – Defendant failed to show for sentencing and received more than the two years agreed to in the plea bargain. At the sentencing hearing the defense was denied a further opportunity to be heard after the court received a negative report from the bondsman. Construed as a denial of the right to allocution.
 
State v. Campbell 90 Ohio St. 3d 320, 2000-Ohio-183 -- Syllabus: "(1) Pursuant to Crim. R. 32(A)(1), before imposing sentence, a 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. (2) Crim. R. 32(A)(1) applies to capital cases and noncapital cases. (3) In a case in which the trial court has imposed sentence without first asking the defendant whether he or she wishes to exercise the right of allocution created by Crim. R. 32(A), resentencing is required unless the error is invited error or harmless error." Death sentence affirmed: State v. Campbell 95 Ohio St. 3d 48, 2002-Ohio-1626.
 
State v. Green (2000), 90 Ohio St. 3d 352, 359 -- Asking if either counsel or the defendant has anything to add is not enough. The court must explicitly offer the defendant the opportunity to speak. Also see State v. Nelson, 172 Ohio App. 3d 419, 2007-Ohio-3459.
 
State v. Myers, 97 Ohio St. 3d 335, 2002-Ohio-6658, ¶ 133-137 -- Failure to afford capital defendant allocution was harmless as he had testified under oath at the penalty phase of the trial, and personally appealed for his life.
 
State v. Castle, Lawrence App. No. 03CA13 -- The right to allocution is absolute.  Also see State v. Brown, 166 Ohio App. 3d 252, 2006-Ohio-1796.
 
Silsby v. State (1928), 119 Ohio St. 314 -- The statutory duty to inquire whether a defendant has anything to say before sentence is pronounced is mandatory. Paragraph two of the syllabus: "When that duty has not been discharged by the court and error is prosecuted therefrom and a court of review finds no other error in the record, the judgment should be reversed and the cause remanded to the trial court for resentencing."
 
Defiance v. Cannon (1990), 70 Ohio App. 3d 821 -- When the defendant has not been afforded the right to speak before sentence is pronounced, the cause must be remanded for resentencing. It is not sufficient that the court have given counsel the opportunity to make a statement or for the court to have asked the defendant questions before passing sentence. Also see Hamilton v. Brown (1981), 1 Ohio App. 3d 165, 168-169; State v. Nalls (1990), 2nd Dist. No. 11940; State v. Dupree (1991), 2nd Dist. No. 11907; State v. Santiago (1990), 7th Dist. No. 90 CA 63. But see State v. Peters (1990), 9th Dist. No. 89CA004733.
 
Columbus v. Herrell (1969), 18 Ohio App. 2d 149, 154 -- The statutory duty to afford a defendant the right to speak before sentence is passed applies to misdemeanors as well as felonies. Also see Columbus v. Shuflett (1965), 73 Ohio Law Abs. 523; State v. Ausberry (1948), 83 Ohio App. 514.
 
State v. Reynolds (1998), 80 Ohio St. 3d 670, 684 -- Though the court failed to give the defendant a chance to speak before being sentenced to death, error was harmless as he had previously made an unsworn statement and had sent a letter to the judge.
 
State v. Smelcer (1993), 89 Ohio App. 3d 115, 127-128 -- Failure to ask the defendant if he wished to address the court before sentence was pronounced was harmless error, as counsel was given an opportunity to speak and had submitted a presentence report outlining numerous mitigating factors.
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
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