State v. Dunkle

2018 Ohio 4190

• Court: Ohio Court of Appeals
• Decided: October 12, 2018
• Docket: CT2018-0009
• Status: Published

Opinion

[Cite as State v. Dunkle, 2018-Ohio-4190.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CHARLES E. DUNKLE : Case No. CT2018-0009 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2017-328

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 12, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX STEPHEN P. HARDWICK Prosecuting Attorney Assistant Public Defender By: GERALD V. ANDERSON, II 250 E. Broad Street Assistant Prosecuting Attorney Suite 1400 27 North Fifth Street Columbus, OH 43215 P. O. Box 189 Columbus, OH 43702-0189 Muskingum County, Case No. CT2018-0009 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant Charles E. Dunkle appeals the December 28, 2017

judgement of conviction and sentence of the Court of Common Pleas of Muskingum

County, Ohio. Plaintiff-Appellee is the state of Ohio.

PROCEDURAL HISTORY

{¶ 2} A recitation of the underlying facts is unnecessary for our resolution of this

matter. In September 2017, appellant was indicted on one count of domestic violence

pursuant to R.C. 2919.25(A), a felony of the third degree given appellant's two or more

prior domestic violence offenses, and one count of intimidation pursuant to R.C.

2921.04(B)(1), a felony of the third degree.

{¶ 3} On November 21, 2017, the matter proceeded to a jury trial and appellant

was found guilty as charged. The trial court continued the matter for sentencing and

ordered a presentence investigation.

{¶ 4} Sentencing took place on December 27, 2017. Before the trial court

pronounced sentence, counsel for appellant advised the trial court that the victim,

appellant's mother, was present in the courtroom and wished to speak. Counsel further

stated the victim wished to advise the trial court that she failed to appear for trial due to

health concerns, and not due to appellant's threatening phone calls from the jail warning

her of her what would happen to her when he got out, nor his phone calls to others

instructing them to make sure his mother was out of town on the day of trial. The trial

court did not afford the victim an opportunity to address the court, and appellant did not

object. Muskingum County, Case No. CT2018-0009 3

{¶ 5} After noting appellant's extensive prior criminal history, and the fact that a

victim impact statement sent to appellant's mother was not returned, the trial court

sentenced appellant to 30 months incarceration for domestic violence, and 30 months for

intimidation. Appellant was ordered to serve the sentences consecutively for an

aggregate total of 60 months.

{¶ 6} Appellant filed an appeal and the matter is now before this court for

sentencing. He raises one assignment of error:

I

{¶ 7} "THE TRIAL COURT ERRED BY IMPOSING SENTENCE WITHOUT

PERMITTING THE VICTIM TO MAKE A STATEMENT AT THE SENTENCING

HEARING. R.C. 2930.14(A); CRIM.R. 32(A); T. P. 6 (SENTENCING)."

{¶ 8} In his sole assignment of error, appellant argues his sentence should be

vacated and the matter remanded for resentencing because the trial court imposed

sentence without permitting the victim to make a statement in violation of Crim.R. 32(A)(1)

and (3). We disagree.

{¶ 9} Crim.R. 32(A)(1) and (3) state:

(A) Imposition of Sentence. Sentence shall be imposed without

unnecessary delay. Pending sentence, the court may commit the

defendant or continue or alter the bail. At the time of imposing

sentence, the court shall do all of the following:

(1) Afford counsel an opportunity to speak on behalf of the defendant

and address the defendant personally and ask if he or she wishes to Muskingum County, Case No. CT2018-0009 4

make a statement in his or her own behalf or present any information

in mitigation of punishment.

***

(3) Afford the victim the rights provided by law;

{¶ 10} Appellant argues that the trial court denied his opportunity to present an

allocution when pursuant to Crim.R.32, it failed to permit the victim to speak. But appellant

confuses his own rights with that of the victim under this rule.

{¶ 11} First, appellant was provided with an opportunity to present allocution. We

first note that while the victim was not called upon by the court to speak during the

sentencing hearing, counsel for appellant proffered the victim's statement on behalf of her

son– that she did not avoid trial due to threats from her son, but rather due to medical

issues. We further note, at the conclusion of the sentencing hearing, the trial court asked

counsel and appellant if either had anything more to add. Counsel indicated he had

nothing further and lodged no objection to the trial court's failure to provide the victim an

opportunity to speak. Transcript of sentencing 6, 12.

{¶ 12} Next, the rights afforded a victim by law are found in Ohio Revised Code

Chapter 2930. Pursuant to that section, the failure of the trial court to provide the victim

an opportunity to speak does not afford a defendant any grounds for relief. State v.

Ridenour, 128 Ohio App.3d 134, 137, 713 N.E.2d 1140 (9th Dist. 1998). Specifically, R.C.

2930.19(C) provides "[t]he failure of any person or entity to provide a right, privilege, or

notice to a victim under this chapter does not constitute grounds for declaring a mistrial Muskingum County, Case No. CT2018-0009 5

or a new trial, for setting aside a conviction, sentence, or adjudication * * *" See also State

v. Chavez, 2nd Dist. No 2017-CA-26, 2017-Ohio-8417, ¶12.

{¶ 13} The purpose of a victim's statement pursuant to rights provided a victim "is

not for the benefit of the defendant but rather to be sure the court considers the impact of

causing physical harm upon the victim when the court imposes * * * sentence.". The

purpose "is to help apprise the sentencing authority of the actual harm inflicted upon the

victim and the victim's family by the crime." State v. Ridenour, 128 Ohio App.3d 134, 136,

713 N.E.2d 1140 (9th Dist. 1998).

{¶ 14} Finally, although appellant argues the victim's statement on his behalf would

have been helpful to him because it would have shown he did not cause her absence at

trial, the record reflects that the trial court was apprised of this information. Further, the

court based its sentence not on any intimidation of the victim by appellant, but rather on

appellant's extensive prior criminal history. T 9-10. Muskingum County, Case No. CT2018-0009 6

{¶ 15} Accordingly, we conclude the trial court committed no error during the

sentencing hearing. The sole assignment of error is overruled, and the judgement of the

trial court is affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Delaney, J. concur.

EEW/rw105