State v. Ward

         [Cite as State v. Ward, 

.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-170175
                                                        TRIAL NO. B-1601029
        Plaintiff-Appellee,                         :

  vs.                                               :
                                                           O P I N I O N.
ALLEN WARD,                                         :

    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: December 13, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Brian T. Goldberg, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}   Defendant-appellant Allen Ward was indicted for two counts of

endangering children and one count of felonious assault. Following a plea hearing,

Ward pleaded guilty to felonious assault and one count of endangering children. In

exchange, the state dismissed the remaining endangering-children charge. The trial

court sentenced Ward to eight years in prison for the felonious-assault offense and

36 months for the endangering-children offense. It ordered the sentences be served

concurrently, for an aggregate eight-year prison sentence. Ward appeals his

convictions, raising two assignments of error.

       {¶2}   In his first assignment of error, Ward argues that the trial court erred

by denying him the right of allocution before sentencing him to prison. The state

concedes the error.

       {¶3}   The Ohio Supreme Court has held that the right of allocution is

mandatory.    State v. Campbell, 

, 

(2000).    When imposing sentence, a trial court must address the defendant

personally and ask whether he wishes to make a statement on his own behalf or to

present any information in mitigation of punishment. See Crim.R. 32(A)(1); R.C.

2929.19(A); State v. Jackson, 

, 

, 

.

       {¶4}   “The right of allocution belongs to the defendant himself.” State v.

Osume, 1st Dist. Hamilton No. C-140390, 

, citing State v.

Thompson, 1st Dist. Hamilton No. C-120516, 

.             Thus, it is

insufficient for the trial court to give defense counsel the opportunity to speak on the

defendant’s behalf. See Osume at ¶ 23, citing State v. Green, 

, 359-




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                     OHIO FIRST DISTRICT COURT OF APPEALS



360, 

 (2000); see also State v. Crawley, 1st Dist. Hamilton Nos. C-

150403 and C-150422, 

.

       {¶5}    If a trial court imposes sentence without first asking the defendant if

he wants to exercise the right of allocution, resentencing is required unless the error

is invited or harmless. Campbell at paragraph three of the syllabus. “An error will be

deemed harmless only in unusual circumstances.” State v. Greenway, 1st Dist.

Hamilton No. C-160511, 

.

       {¶6}    At the sentencing hearing, the trial court permitted Ward’s counsel to

present testimony from Dr. Nancy Schmidtgoessling in mitigation and to speak on

Ward’s behalf. The trial court, however, failed to address Ward personally and ask

him if he wished to make a statement on his own behalf before imposing sentence.

The record contains no evidence that Ward invited the error, or that there were any

unusual circumstances that could have rendered the error harmless. See Osume at ¶

24; State v. Matthews, 1st Dist. Hamilton No. C-140663, 

;

Crawley at ¶ 9-10; Greenway at ¶ 22-23; State v. Saunders, 1st Dist. Hamilton No.

C-160781, 

. Thus, we sustain the first assignment of error.

       {¶7}    Our disposition of Ward’s first assignment of error renders moot his

second assignment of error, in which he challenges the trial court’s imposition of the

maximum prison term for the felonious-assault offense.         We, therefore, reverse

Ward’s sentences, and remand this cause for resentencing. We affirm the trial

court’s judgment in all other respects.

                    Judgment affirmed in part, reversed in part, and cause remanded.

MYERS, P.J., and MILLER, J., concur.


Please note:
       The court has recorded its own entry this date.



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