State v. Ross

570                     March 27, 2024                  No. 184

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                     DARNELL ROSS,
                   Defendant-Appellant.
                 Beaverton Municipal Court
                     2210863; A180024

   Edward A. Kroll, Judge.
   Submitted February 26, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and E. Nani Apo, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Affirmed.
Cite as 

 (2024)                                                   571

           ORTEGA, P. J.
         Defendant appeals from a judgment of conviction for
second-degree criminal trespass, ORS 164.245. He pleaded
no contest to that charge and the trial court, after accepting
his plea, sentenced defendant in accordance with the parties’ agreement. After the court pronounced sentence, defendant sought to speak to the court, and when he became verbally abusive, the court “muted” defendant and concluded
the hearing. Defendant assigns error to the trial court’s
decision to “mute” him, arguing that the court violated his
right to allocution.1 Under the circumstances, we conclude
that the court did not err and affirm.
         Article I, section 11, of the Oregon Constitution provides a criminal defendant the right “to be heard by himself
and counsel.” A defendant’s right “to be heard by himself”
refers to the right of allocution. State v. Guzek, 

, 

 (2015). That right provides defendants
with an opportunity to personally make a case for sentencing mitigation. 

. Denying a defendant the right
to make a statement before sentencing violates the allocution right. State v. Isom, 

, 

 (2005). Specifically, Article I, section 11, provides a
defendant “the right of allocution before the imposition of
sentence.” State v. Southards, 

, 

 (2001) (emphasis added). Once the court has pronounced
the sentence, the time to make the case for leniency in sentencing has passed, and thus there is no further purpose for
allocution.
        Here, after engaging in a colloquy with defendant
to determine whether his plea was knowing, intelligent, and
voluntary, the court accepted his no contest plea and the
following exchange occurred:

    1
      Although the record is not clear on this point, it seems that defendant appeared
at the hearing remotely via a videoconferencing link. The date of the hearing,
August 19, 2022, places it during a time when some hearings were held remotely in
criminal cases due to the COVID-19 pandemic. The notice of the hearing that was
sent to defendant’s attorney specified a courtroom at the courthouse, but the notice
that was directed to defendant personally did not specify a courtroom. Both notices
contained generic directions for how to attend a hearing remotely. Thus, we understand the court’s references to defendant being “muted” as meaning that the audio
portion of defendant’s stream to the courtroom was stopped.
572                                                    State v. Ross

     “THE COURT: All right. I’ll find that’s made intelligently, voluntarily and knowingly.
     “And, [defendant], I assume you gave … your Defense
  Attorney[ ] permission to put your signature on this Plea
  Petition; is that correct, sir?
      “THE DEFENDANT: You know, I had a question for
  you, man. Who will you get to—Your Honor, I had a question for you.
       “THE COURT: You can certainly ask, sir. I’m not sure
  I’ll be able to answer, but you are welcome to ask.
     “THE DEFENDANT: Oh, oh, oh, yes, you will, you’ll
  be able to answer it.
      “So when you get done, I have a question for you, too.
     “THE COURT: All right. We’ll continue, sir, and you
  can answer [sic] your question when it’s appropriate.
      “…
     “All right. So, [defendant], I do find you guilty, based on
  your plea, of Criminal Trespass in the Second Degree. I
  will follow the agreed-upon sentence. First, that the cases
  ending in 978 and 904 are dismissed.
     “And in this case your sentence will be 10 days in jail
  with credit for time served. It appears you’ve already
  served an excess of that. And you have no other holds, sir.
  So most likely you’ll be released later today.
      “I will waive all finances and you do not have a probation on this case, so you are essentially free to go, as far as
  our court is concerned right now.
    “THE DEFENDANT: So, can I say what I’ve got on my
  mind to say now?
      “THE COURT:        You may.
     “THE DEFENDANT: I’m depressed. I went to jail for
  a day. I went to jail for a day, I’ve got jail for a day, and I’ve
  got MAX for a day. That’s one.
     “Number two, I don’t appreciate you ever fuckin’ tell me
  that I am incompetent. I am incompetent. You don’t know
  what the fuck I’m doing. Wait. Hold on.
      “THE COURT: Okay. Let’s go ahead and mute him.
Cite as 

 (2024)                              573

      “THE DEFENDANT: Wait. Hold on for a minute. I’m
   not convicted. I’ve got a fuckin’ high school diploma.
      “THE COURT: Okay. So, sir, you’ve been muted.
   Thank you. For your comments. Your case is done, and you
   are free to go.”
        At the time when an allocution would have been
appropriate, defendant did not indicate that he wished to
make an allocution. He stated that he wanted to ask the
court a question, to which the court was receptive; it told
defendant he was “welcome to ask.” Defendant instead told
the court that his question could wait. The court then pronounced sentence. At the time that it became clear that
defendant wished to make a statement and not merely ask
the court his question, sentencing had already occurred.
         Although the court was not required to, the court
allowed defendant to make a statement until defendant
began berating the court using abusive language. The court
did not have to allow defendant to continue to speak because
the time for an allocution had passed, and because defendant was speaking to the court in a way that the court had
authority to curb. See, e.g., State v. Rogers, 

,

 (2000) (“It is well established that a trial court
generally possesses broad discretion to control the proceedings before it.”); ORS 1.010 (every court has power to preserve and enforce order in its presence; to provide for orderly
conduct of proceedings; to control the conduct of persons
connected with a judicial proceeding before it).
         Under these circumstances, it was not reversible
error for the court to order the audio portion of defendant’s
audio-visual stream to be muted.
        Affirmed.