Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for
T. Goldberg, for Defendant-Appellant.
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.
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.
The Ohio Supreme Court has held that the right of allocution
is mandatory. State v. Campbell, 90 Ohio St.3d 320,
324-325, 738 N.E.2d 1178 (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, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d
1237, ¶ 10.
"The right of allocution belongs to the defendant
himself." State v. Osume, 1st Dist. Hamilton
No. C-140390, 2015-Ohio-3850, ¶ 23, citing State v.
Thompson, 1st Dist. Hamilton No. C-120516,
2013-Ohio-1981, ¶ 5. 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, 90 Ohio St.3d 352,
359-360, 738 N.E.2d 1208 (2000); see also State v.
Crawley, 1st Dist. Hamilton Nos. C-150403 and C-150422,
2016-Ohio-658, ¶ 8.
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, 2017-Ohio-7729, ¶ 22.
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,
2015-Ohio-5075, ¶ 14; Crawley at ¶ 9-10;
Greenway at ¶ 22-23; State v.
Saunders, 1st Dist. Hamilton No. C-160781,
2017-Ohio-8557, ¶ 13. Thus, we sustain the first
assignment of error.
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
affirmed in part, reversed in part, and cause remanded.
P. J., and ...