[Cite as State v. Yates,
2019-Ohio-3129.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-18-036
Appellee Trial Court No. CRB 1800883A
v.
Thomas K. Yates DECISION AND JUDGMENT
Appellant Decided: August 2, 2019
…
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.
Danielle C. Kulik, for appellant.
…
MAYLE, P.J.
{¶ 1} Defendant-appellant, Thomas K. Yates, appeals the October 12, 2018
judgment of the Ottawa County Municipal Court, convicting him of assault and
sentencing him to 180 days in the Ottawa County Detention Facility. For the reasons that
follow, we reverse the trial court judgment and remand for resentencing.
I. Background
{¶ 2} Thomas Yates was charged with felonious assault following a physical
altercation with a security guard who ejected him from a pool bar on South Bass Island,
commonly known as Put-In-Bay. He entered a plea of guilty and was convicted of
misdemeanor assault, a violation of R.C. 2903.13. The trial court ordered a presentence
investigation report (“PSI”), and continued the matter for sentencing on October 12,
2018.
{¶ 3} The trial court began the sentencing hearing by asking defense counsel if
either he or his client wished to make a statement. Counsel started to explain Yates’s
version of the events giving rise to his conviction. He said that Yates was at the pool bar
during the island’s annual Christmas in July celebration, and a “conversation” with a
female patron turned into a confrontation. A security guard asked Yates to leave, but his
personal belongings—wallet, sunglasses, phone, etc.—remained on the table where he
was sitting. Yates went back in to retrieve his belongings and the security guard grabbed
him from behind. A struggle ensued and Yates “incidentally grasped” the security
guard’s earring, tearing it from his ear.
{¶ 4} Counsel described Yates’s attempt to go back in for his belongings as “a
rational thing to do”—a characterization that the court strongly challenged. The court
insisted that counsel speak to mitigating circumstances and not to matters that could be
“put in the basket of a defense.” Counsel then advised the court that after completing the
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PSI, Yates submitted to an “evaluation” at the recommendation of the probation
department.
{¶ 5} The court demanded details about this evaluation, at which point Yates
joined the dialogue. Yates was forced to admit that the “evaluation” was not an
assessment by a psychiatrist or psychologist, but rather a test completed online at the
recommendation of an unidentified person that he spoke with on a 1-800 anger-
management hotline. The test produced results indicating an “overall anger score” of 14
on a scale of 0-100.
{¶ 6} The court responded with skepticism about the legitimacy of the test, and it
questioned the quality and completeness of the information “plugged in” to the computer
program by Yates. In particular, the court questioned whether Yates had disclosed that
he had convictions for an assault on a peace officer in 2004, malicious destruction of
property in 2007, domestic violence in 2008 and 2017, “dangerous drug” in 2009, and
disorderly conduct in 2016. The court told Yates that the assessment was not “even
worth the paper it’s written on.” Counsel insisted that Yates performed the assessment in
an effort to please the court; it was clear, however, that the court was not pleased.
{¶ 7} The court told counsel: “Your client has a right to remain silent. You know
this Court’s policy as well as anyone. When they exercise it, that’s it. But when they
make statements then that right is waived.” It then warned: “You really don’t want to
keep talking about this.” It asked counsel a last time for mitigating circumstances, and
counsel responded that Yates is a family man who fought for—and was awarded—
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custody of his children, he runs his own business, and the conduct leading to his
conviction was not “standard behavior” for him—another characterization that the court
strongly challenged. The court signaled the conclusion of the hearing by saying to
counsel: “I assume nothing further?” Counsel—not Yates—responded that there was
nothing further. The court imposed a 180-day jail sentence, a $100 fine, and court costs.
{¶ 8} Yates appealed and we stayed execution of his sentence. He now assigns the
following errors for our review:
1. THE COURT ERRED IN NOT ALLOWING THE
DEFENDANT THE RIGHT TO SPEAK AT SENTENCING.
2. THE COURT ERRED WHEN IT SENTENCED DEFENDANT
TO MAXIMUM PENALTIES AGAINST THE FACTORS SET FORTH
IN R.C. 2929.22.
3. THERE IS INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL IS PREVENTED FROM FULLY ASSISTING THE
ACCUSED AT SENTENCING.
4. THE COURT ERRED IN SENTENCING THE DEFENDANT
TO INCARCERATION CONTRARY TO THE PURPOSES OF
MISDEMEANOR SENTENCING.
5. THE COURT ERRED IN SENTENCING THE DEFENDANT
TO MAXIMUM PENALTIES WHEN HE DID NOT COMMIT THE
WORST FORM OF THE OFFENSE.
4.
6. THERE IS INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL DOES NOT PROVIDE THE DEFENDANT WITH
THE INFORMATION NECESSARY FOR SENTENCING.
II. Law and Analysis
{¶ 9} In his first assignment of error, Yates argues that the trial court violated
Crim.R. 32 when it denied him the right to speak at sentencing. He asks us to remand the
matter so that he can be resentenced.
{¶ 10} Crim.R. 32(A)(1) provides, in pertinent part, as follows:
At the time of imposing sentence, the court shall … [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.
{¶ 11} The provisions of Crim.R. 32(A)(1) are mandatory and apply both in felony
and misdemeanor cases. State v. Campbell, 90 Ohio St.3d 320,
738 N.E.2d 1178 (2000),
paragraph two of the syllabus; State v. Masson,
2017-Ohio-7705,
96 N.E.3d 1225, ¶ 7
(7th Dist.). The rule obligates the trial court to affirmatively and personally ask the
defendant if he wishes to exercise his allocution right.
Masson at ¶ 8. The court need not
use the exact language used in Crim.R. 32(A)(1), but in inviting the defendant to speak,
the invitation should not be ambiguous. Id. at ¶ 10. Absent invited error or harmless
error, resentencing is required if a trial court imposes a sentence without first asking the
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defendant whether he wishes to exercise the right of allocution. Campbell at paragraph
three of the syllabus.
{¶ 12} “A Crim.R. 32(A) 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). It is not, however, an opportunity to
make renewed challenges to a finding of guilt. State v. Beasley,
153 Ohio St.3d 497,
2018-Ohio-493,
108 N.E.3d 1028. Accordingly, “a trial court does not err by limiting a
defendant’s presentence statement to those issues that bear upon the sentence and may
have mitigative weight.”
Id.
{¶ 13} Here, the trial court addressed defense counsel and asked whether “either”
he “or” his client wished to say anything. It is clear from the rule that both counsel and
Yates were entitled to speak. The court listened to defense counsel’s statement, and it
engaged with Yates at length about the validity of the online anger-management
assessment and the quality of the responses he provided in completing the assessment.
But once counsel finished speaking on Yates’s behalf, Yates, too, should have been
invited to speak in mitigation. The trial court did not offer him this opportunity. We
agree with Yates that this was error.
{¶ 14} The state argues that because defense counsel spoke on Yates’s behalf and
because the trial court engaged in the colloquy with Yates concerning the online anger-
management assessment, any error in failing to allow Yates to speak was harmless.
6.
{¶ 15} Harmless error is “[a]ny error, defect, irregularity, or variance which does
not affect substantial rights ….” Crim.R. 52(A). Although there is no bright-line rule
for determining whether a violation of Crim.R. 32(A)(1) is harmless, we have found
harmless error where the court has permitted only counsel to speak and has imposed
either a minimal sentence or a statutorily-mandated sentence. See, e.g., State/City of
Toledo v. Reese, 2018-Ohio-2981,
112 N.E.3d 514, ¶ 39 (6th Dist.); State v. Everson, 6th
Dist. Lucas No. L-17-1138,
2018-Ohio-323 (finding harmless error where defendant’s
attorney spoke and judge imposed “fairly lenient” sentence). In Reese, we found that the
trial court erred by failing to inquire of the defendant; however, because defendant’s
attorney was permitted to speak combined with the fact that the court imposed a relatively
lenient sentence—180 days in jail, 177 of which were suspended—we found the error to
be harmless.
{¶ 16} Here, Yates’s attorney was permitted to speak, but the trial court imposed
the statutory maximum sentence—180 days in jail with zero days suspended. This was
the longest jail term that the court was permitted to impose under R.C. 2929.24(A)(1)
(allowing imposition of 180-day jail term for first-degree misdemeanor). As such, we
cannot conclude that the trial court’s error was harmless.
{¶ 17} Accordingly, we find Yates’s first assignment of error well-taken. We
reverse and remand this matter to the trial court for resentencing. In light of our
resolution of Yates’s first assignment of error, we need not address his remaining
assignments of error.
7.
III. Conclusion
{¶ 18} We conclude that the trial court erred in failing to give Yates an
opportunity to speak in mitigation before it imposed his sentence, and this error was not
harmless. We, therefore, find Yates’s first assignment of error well-taken and decline to
reach his remaining assignments of error. We reverse the October 12, 2018 judgment of
the Ottawa County Municipal Court and remand for resentencing. The state is ordered to
pay the costs of this appeal under App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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