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State v. Yates

Court of Appeals of Ohio, Sixth District, Ottawa

August 2, 2019

State of Ohio Appellee
v.
Thomas K. Yates Appellant

          Trial Court No. CRB 1800883A

          James J. VanEerten, Ottawa County Prosecuting Attorney, and Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.

          Danielle C. Kulik, for appellant.

          DECISION AND JUDGMENT

          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 belonging s-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 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- 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 ...


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