[Cite as State v. Walker,
2025-Ohio-3049.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-24-068
Appellee Trial Court No. CRB-24-0817
v.
Gary D. Walker DECISION AND JUDGMENT
Appellant Decided: August 26, 2025
…
W. Alex Smith, Esq., for appellant.
Paul A. Dobson, Esq., Prosecuting Attorney and
David T. Harold, Esq., Assistant Prosecutor, for appellee.
…
DUHART, J.
{¶ 1} Appellant, Gary D. Walker, appeals from a judgment of conviction entered
by the Perrysburg Municipal Court following his plea of guilty to the offense of
attempted forgery. For the reasons that follow, the trial court’s judgment is reversed and
the matter is remanded for resentencing.
Statement of the Case and the Facts
{¶ 2} On September 12, 2024, Walker was charged in Perrysburg Municipal Court
with felony forgery and misdemeanor obstructing official business. At the preliminary
hearing, Walker pled guilty to attempted forgery, a misdemeanor of the first degree. In
exchange, the State dismissed the felony forgery and obstructing official business
charges. The trial court accepted the plea and went immediately to sentencing.
{¶ 3} Prior to imposing sentence, the trial court gave counsel for each of the
parties an opportunity to speak. The State, first to address the court, requested a sentence
of 45 days of local incarceration, explaining “this area has had a lot of issues with retail
theft as well as forged documents being used in furtherance of those types of crimes,” and
“[i]n this case, we feel that local jail time would be appropriate in order to potentially
curb this.” When, next, the trial court turned its attention to defense counsel, the
following exchange took place:
[DEFENSE COUNSEL]: Your Honor, I’m going to ask the
Court to consider imposing no jail time and give Mr. Walker
credit for time served. He is on post release control. His
parole officer is aware of this. They have violated him. So he
is facing a nine month incarceration term at Lorain
Correctional Facility.
THE COURT: How long has he been in custody?
[DEFENSE COUNSEL]: Eight days so far, Your Honor. And
Mr. Walker has indicated that the parole board will not allow
2.
him to begin that nine month term until he completes any
sentence ordered in this case. So I would ask the Court to
perhaps consider no jail time or a lesser sentence.
{¶ 4} The trial court, after hearing from counsel for both parties, imposed a
sentence of 90 days in jail, with 60 days ordered suspended. In addition, the trial court
ordered that Walker be placed active probation for a period of one year and, further, pay a
fine of $150.
Assignments of Error
{¶ 5} On appeal, Walker asserts the following assignment of error:
I. The trial court erred by denying his right to allocution
under Crim.R. 32(A)(1).
Law and Analysis
{¶ 6} Walker argues in his sole assignment of error that the trial court’s failure to
allow him his right to allocution constitutes reversible error. We agree.
{¶ 7} Crim.R. 32(A)(1) provides, in pertinent part:
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.
{¶ 8} Regarding Crim.R. 32(A)(1), this court has stated the following:
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 (2000), paragraph two of the syllabus; State v.
Masson, 2017-Ohio-7705, ¶ 7 (7th Dist.). The rule obligates
the trial court to affirmatively and personally ask the
3.
defendant if he wishes to exercise his allocution right.
Masson at ¶ 8….
‘“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 (2000).
State v. Yates,
2019-Ohio-3129, ¶ 11-12 (6th Dist.). “A trial court’s failure to comply
with Crim.R. 32(A)(1) is not always a prejudicial error, however; remand for
resentencing is not required if the error is…harmless.” State v. Reese,
2018-Ohio-2981, ¶
38.
{¶ 9} Harmless error is “[a]ny error, defect, irregularity, or variance which does
not affect substantial rights….” Crim.R. 52(A). “Although there are no bright-line rules
for determining whether a violation of Crim.R. 32(A)(1) is harmless, some Ohio courts –
including this one – have found harmless error when counsel speaks, even if the
defendant is not given the opportunity to do so, and the defendant receives a minimal
sentence or a statutorily-mandated sentence….Essentially, the less likely it is that the
defendant’s allocution would have affected the outcome of the case, the more likely the
courts are to find that a Crim.R. 32(A)(1) violation was harmless.” Reese at ¶ 39.
{¶ 10} Here, the State concedes that the trial court did not afford Walker his right
of allocution as provided for by Crim.R. 32(A) but argues that because Walker received a
“fairly lenient sentence” from the trial court when he was sentenced to 30 days in jail
with eight days of credit for time served, and because his counsel spoke on his behalf in
4.
mitigation before he was sentenced, the Court can find that the error in this case was
harmless.
{¶ 11} In State v. Everson, 2018-Ohio-323, this court found the trial court’s failure
to allow the defendant the opportunity for allocution did not prejudice the defendant
where: 1) her trial counsel “spoke at length about mitigating facts the court should
consider before sentencing” her -- including that she had completed a substance abuse
assessment and was found not to have substance abuse issues, she was engaged in
counseling for mental health issues, she was an honorably discharged veteran, her driving
was likely caused by the interaction of alcohol with a prescription medication that the she
had since stopped taking, she was a mother, and she had held part-time jobs as a nurse
despite frequent moves to accommodate her husband’s military career -- and the court
had a presentence investigation report that outlined the circumstances of the defendant’s
offense and several mitigating factors; and 2) the court gave the defendant a “fairly
lenient sentence” of ten days incarceration, where the maximum sentence was 180 days
incarceration, together with a fine of $550 and a 12-month license suspension with only
seven months remaining as of the sentencing date. Id. at ¶ 20-21.
{¶ 12} In State v. Reese, this court found that the trial court’s failure to allow the
defendant the opportunity for allocution did not prejudice him where: 1) the defendant’s
trial counsel “explained the mitigating facts that the court should consider before
sentencing [him],” including that he held a commercial driver’s license, he was gainfully
employed, and was a minister in his church; and 2) the court gave the defendant a “fairly
5.
lenient sentence” of the maximum jail term of 180 days, with all of the days suspended
but a mandatory three days -- which the court ordered the defendant to serve in a driver’s
intervention program -- a fine of $850, and a 6-month license suspension that began the
date of the offense and expired prior to the defendant’s sentencing. Id. at ¶ 41-42.
{¶ 13} We find that the facts of the current case are more analogous to those set
forth in City of Akron v. Lewis, 2022-Ohio-3468, where Lewis’s defense counsel gave a
more perfunctory and less persuasive statement in mitigation than attorneys in Everson
and Reese. In Lewis, the Ninth District Court of Appeals declined to find that the denial
of the defendant’s right to allocution was harmless error where: 1) defense counsel asked
the court to take into consideration when imposing sentence that the defendant had been
on GPS monitoring for over 90 days; and 2) the court imposed what was “arguably” a
“fairly lenient sentence” for a first-degree misdemeanor domestic violence conviction --
namely, 180 days incarceration with 178 days suspended and credit for two days served,
contingent upon the defendant obeying all laws for one year, completing anger
management and parenting classes, and reporting to probation until the classes were
complete, together with a $150 fine. Id. at ¶ 34-36. The Ninth District found that “[i]f [the
defendant] had been permitted the opportunity to allocate, the trial court may have
imposed less of an initial jail term or no fine.” As such, the Ninth District concluded that
it could not say that it could be presumed that the defendant’s opportunity for allocution
would have made no difference in his sentence. Id. at ¶ 36.
6.
{¶ 14} Here, where trial counsel’s statement in mitigation was brief and less than
compelling -- inasmuch as it argued for leniency based on the fact that Walker was
already facing a 9-month term of incarceration in another case and that the 9-month term
could not begin until after any sentence in the current case was completed -- and where
Walker was sentenced to serve 30 days of a 90-day sentence in jail, in addition to being
ordered to pay a $150 fine, it is our opinion that had Walker been permitted the
opportunity to allocate, the trial court may have imposed less of an initial, or actual, jail
term, or may have imposed no fine. Thus, we cannot say it can be presumed that
Walker’s opportunity for allocution would have made no difference in his sentence.
Therefore, the sentencing judgment must be vacated, and the matter remanded for
sentencing. Accordingly, Walker’s sole assignment of error is found well-taken.
Conclusion
{¶ 15} The judgment of the Perrysburg Municipal Court, Wood County, Ohio, is
reversed and the matter is remanded to the trial court for resentencing. Appellee is
ordered to pay the costs of appeal pursuant to App.R. 24.
Judgment reversed
and remanded.
7.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J.
JUDGE
Myron C. Duhart, J.
CONCUR JUDGE
Thomas J. Osowik, J.
DISSENTS AND WRITES
SEPARATELY
OSOWIK, J., dissenting.
{¶ 16} The failure of a trial court to ask a defendant represented by an attorney
whether he has anything to say before sentence is imposed is not of itself an error of the
character or magnitude cognizable under a writ of habeas corpus. It is an error that is
neither jurisdictional nor constitutional. State v. Riley, 2025-Ohio-2439, ¶ 7 (5th Dist.),
quoting Hill v. United States,
368 U.S. 424, 428 (1962). Contrary to appellant’s
arguments before this court, it is not a fundamental defect which inherently results in a
complete miscarriage of justice, nor an omission inconsistent with the rudimentary
demands of fair procedure. State v. Roberts,
2013-Ohio-4580, ¶ 104.
8.
{¶ 17} As such, a trial court's failure to comply with Crim.R. 32(A)(1) is not
always a prejudicial error, and remand for resentencing is not required if the error is
harmless. State v. Reese, 2018-Ohio-2981, ¶ 38 (6th Dist.).
{¶ 18} Because it is my opinion that the error is harmless in this case, I would
dissent from the majority opinion for the following reasons.
{¶ 19} We have noted that there are no bright-line rules for determining whether a
violation of Crim.R. 32(A)(1) is harmless. Id. Nevertheless, this court has found
harmless error when counsel speaks, even if the defendant is not given the opportunity to
do so, and the defendant receives a minimal sentence or a statutorily-mandated sentence.
See, e.g., State v. Everson,
2018-Ohio-323, (6th Dist.) (defendant's attorney spoke and
the judge imposed a “fairly lenient” sentence).
{¶ 20} Harmless error is any error, defect, irregularity, or variance that does not
affect substantial rights. City of Toledo v. Reese, 2018-Ohio-2981, ¶ 39 (6th Dist.).
{¶ 21} Essentially, the less likely it is that the defendant's allocution would have
affected the outcome of the case, the more likely the courts are to find that a Crim.R.
32(A)(1) violation was harmless. State v. Anderson, 2024-Ohio-4735, ¶ 4 (9th Dist.),
appeal not allowed,
2025-Ohio-231, ¶ 4.
{¶ 22} Here, the record establishes that Walker was initially charged with a
violation of R.C. 2913.31(A)(3), a felony of the fifth degree, Forgery, punishable by a
definite prison term of six, seven, eight, nine, ten, eleven, or twelve months. R.C.
9.
2929.14(A)(5). That charge would also subject Walker to a financial sanction of not
more than $2,500. R.C. 2929.18.
{¶ 23} Ultimately, the charge was amended to Attempted Forgery, thereby making
the offense a first-degree misdemeanor, subject to a maximum sentence of six months’
incarceration and a $1,000 fine. R.C. 2923.02(E) (1); R.C. 2929.24(A)(1); R.C.
2929.28(A)(2)(i).
{¶ 24} The record establishes that at the time of his plea, Walker was being held in
the Wood County jail not only in this case but because he was on post-release control
from another county, according to representations made to the court by his counsel at his
sentencing.
{¶ 25} At that time, Walker’s counsel stated:
Your Honor. I'm going to ask the court to consider imposing no
jail time and give Mr. Walker credit for time served. He is on post
release control. His parole officer is aware of this. They have
violated him. So he is facing a nine month incarceration term at
Lorraine Correctional Facility…… And Mr. Walker has indicated
that the parole board will not allow him to begin that nine month
term until he completes any sentence ordered in this case. So I
would ask the court to perhaps consider no jail time or a lesser
sentence.
{¶ 26} Other than these statements from counsel, the record from the Perrysburg
Municipal Court in this case is barren of any information containing Walker’s prior
record or his parole status. Nevertheless, Walker himself pointed out to his attorney that
his parole was being violated and he was being sent to prison to serve a nine-month
period of imprisonment.
10.
{¶ 27} The State requested a 45-day period of incarceration at the sentencing
hearing.
{¶ 28} Walker was sentenced to 90 days and suspended 60 of those days with the
remainder of the 30 days to be served, with credit six days in custody. He was also given
a fine of $150, and court costs in the aggregate amount of $70.
{¶ 29} Walker argues that he was prejudiced by the trial court’s failure to ask him
to speak in mitigation prior to the imposition of sentence in this case. He claims that he
could have pled for leniency, express remorse and that his statements could further
“humanize” him before the sentencing court.
{¶ 30} However, given his prior incarceration in the state penal system and being
on post-release control at the time of this offense, I cannot say it can be presumed that
Walker’s missed opportunity for allocution would have made a difference in his sentence.
{¶ 31} In this case, the trial court also had in its possession the charging
instrument. He was not charged by indictment but rather a Probable Cause Affidavit
filed by the arresting Officer in the Perrysburg Municipal Court.
{¶ 32} That affidavit alleges that Walker attempted to “conduct a scam inside of
Walmart, producing a receipt for a vacuum that did not match the serial number on the
boxed merchandise.”
{¶ 33} When officers stopped the vehicle in which Walker was a passenger, he
identified himself as “Hugh Lynssey Walker” with a DOB of 4-27-1989. Gary Walker’s
true identity was determined through fingerprint confirmation. The center console of the
11.
car contained six Ohio Interim Documentation documents, along with checks inside of
the folded documents. These documents indicated false identification of six named
individuals. Each of these documents had Gary D. Walker’s photograph on them, along
with the fraudulent identifying information.
{¶ 34} I am not of the belief that Walker’s lack of allocution resulted in any
prejudice to him in his sentencing in this case. It is possible but it would only be
speculative that he could weave a charming, even whimsical tale as to how his
photograph innocently appeared on the following six documents in his possession at the
time of his arrest (while being on post-release control under the supervision of the Adult
Parole Authority):
Ohio Interim Documentation
Jermaine Axxxxx, DOB 4-9-XX, RVXXXXXX, 5XX Poplar Street Sandusky OH
44870
Ohio Interim Documentation
Victor Wxxxx, DOB 8-10-XX, SHXXXXXX, 4XX Cove Sandusky OH 44870
Ohio Interim Documentation
Jermaine Bxxxx, DOB 6-10-XXXX, SHXXXXXX, 5XX Poplar Street Sandusky OH
44870
Ohio Interim Documentation
Jermaine Txxxxx, DOB 4-9-XX, RVXXXXXX, 5XX Poplar Street Sandusky OH
44870
Ohio Interim Documentation
Tyrone Hxxxxxx, DOB 6-9-XXXX, RVXXXXXXX, 4XX Cove Sandusky OH 44870
Ohio Interim Documentation
Thomas Bxxxxx, DOB 6-10-XXXX, RVXXXXXX, 4XX Cove Sandusky OH 44870
12.
{¶ 35} Appellant has not proffered any potential statement in mitigation
concerning what he would have articulated in response to these facts before the trial court
that would have mitigated the 30 day sentence and $150 fine and court costs. Walker’s
prior history and the reduced charge in this case were facts before the trial court. Facts
are stubborn things1. Viewed from this perspective, any error that resulted from the trial
court's failure to allow Walker allocution in this case is harmless. Hence, I would affirm
the decision of the trial court.
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
1
John Adams, 2nd President of the U.S., Argument in Defense of the Soldiers in the
Boston Massacre Trials: the Trial of William Wemms, James Hartegan, William
M'Cauley, and others for the Murder of Crispus Attucks and others in the Superior Court
of Judicature, Court of Assize, and General Goal Delivery (December 4, 1770)(“Facts are
stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our
passions, they cannot alter the state of facts and evidence.”), in Nat'l Archives Online,
https://founders.archives.gov/documents/Adams/05-03-020001-0004-0016.
13.
