Court No. CRB 1800883A
J. VanEerten, Ottawa County Prosecuting Attorney, and Blake
W. Skilliter, Assistant Prosecuting Attorney, for appellee.
Danielle C. Kulik, for appellant.
DECISION AND JUDGMENT
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
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
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
8} Yates appealed and we stayed execution of his
sentence. He now assigns ...