State v. Elliott

2025 Ohio 804

• Court: Ohio Court of Appeals
• Decided: March 10, 2025
• Docket: 2024CA0021
• Status: Published

Opinion

[Cite as State v. Elliott, 2025-Ohio-804.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. -vs- : : BRENT ELLIOTT : Case No. 2024CA0021 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 23 CR 0098

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 10, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISHANA L. CARROLL CHRISTOPHER BAZELEY Assistant Prosecuting Attorney 9200 Montgomery Road Coshocton County, Ohio Suite 8A 318 Chestnut Street Cincinnati, OH 45242 Coshocton, OH 43812 Montgomery, J.

{¶1} The Appellant appeals the sentence to his conviction of Kidnapping in

violation of R.C. 2905.01. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On January 22, 2024, Appellant was indicted on one count of Kidnapping,

in violation of R.C. 2905.01, a Felony of the First Degree.

{¶3} On February 12, 2024, Appellant was arraigned for the above charge and

a public defender was provisionally appointed. Appellant initially entered a plea of not

guilty. On February 14, 2024, counsel requested discovery, and documents were

properly exchanged with any new discovery supplemented as appropriate. On May 8,

2024, a pretrial conference was conducted with trial scheduled for July 16, 2024, and July

17, 2024.

{¶4} On July 15, 2024, a change of plea hearing was held. Appellant appeared

with counsel and the State informed the court that pursuant to Rule 11 negotiations,

Appellant would enter a guilty plea to the single count contained in the indictment. In

exchange for said plea, the State agreed to take no position regarding sentencing and

judicial release and would not object to a pre-sentence investigation report.

{¶5} Appellant subsequently entered a plea of guilty to Kidnapping, a felony of

the first degree. Appellant also executed a written plea of guilty and waiver of a trial by

jury in open court. The trial judge inquired of Appellant and his counsel on the record and

subsequently accepted Appellant’s plea of guilty.

{¶6} Prior to imposing sentence, the trial judge afforded Appellant the opportunity

to speak in open court and Appellant made a statement. After Appellant addressed the trial court, the court heard from the victim and State prior to the imposition of sentence.

No other statements were made by either party during this portion of the hearing. The

court also considered a Pre-Sentence Investigation and report that was furnished to

Appellant’s counsel and the State prior to sentencing.

{¶7} The court imposed an indefinite term of incarceration of eight to twelve

years. Appellant filed an appeal on December 2, 2024, and sets forth the following

assignment of error:

{¶8} “I. THE TRIAL COURT VIOLATED ELLIOT’S RIGHT TO ALLOCUTION BY

FAILING TO LET HIM SPEAK AT THE APPROPRIATE TIME.”

SOLE ASSIGNMENT OF ERROR

{¶9} The appellant argues in his sole assignment of error that the trial court erred

by not allowing him to speak after the state and the victim made their statements to the

court. In other words, appellant argues the trial court violated his right to allocution by

failing to let him speak at the appropriate time. We disagree.

STANDARD OF REVIEW

{¶10} Crim. R. 32 (A) (1) generally speaks to a defendant’s right of allocution. It

states that “at the time of imposing sentence, the court shall afford counsel the opportunity

to speak on behalf of the defendant and address the defendant personally and ask if he

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

mitigation of punishment.”

{¶11} A defendant’s right to allocution is absolute and is not subject to waiver by

failing to object. State v. Campbell, 2000-Ohio-183 at 324-325. If the trial court imposes

sentence without affording the defendant an opportunity to allocate, resentencing is required unless the error was invited or harmless. State v Beasley, 153 Ohio St. 3d 497,

2018-Ohio-493, 200, 108 N.E. 3d 1028. An error is harmless when it does not affect the

defendant's substantial rights. See Crim.R. 52(A). Importantly, the purpose of allocution

is to permit the defendant to speak on his own behalf or present mitigating information

such that a trial court does not err by limiting a defendant's presentence statement to

those issues that bear upon the sentence and may have mitigative weight. Beasley, ¶

200, citing State v. Cedeno, 8th Dist. Cuyahoga Nos. 102327 and 102328, 2015-Ohio-

5412, 2015 WL 9460555, ¶ 38; State v. Smith, 2d Dist. Greene No. 94–CA–86, 1995 WL

655943, *2–3 (Nov. 8, 1995).

{¶12} “Whatever the court considers for sentencing should be either part of the

presentence investigation (“PSI”) or ‘presented’ at the sentencing hearing before

allocution”. State v. Light, 2023-Ohio-1187. If the trial court imposes sentence without

affording the defendant an opportunity to allocate, resentencing is required unless the

error was invited or harmless. State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493,

200, 108 N.E.3d 1028.

{¶13} As part of the plea agreement, the State agreed to take no position

regarding sentencing. (Plea Agreement, p. 1; Trans. Plea, p. 2) At the sentencing hearing,

the State reiterated statements that were made in a police report. (Trans. Sent., p 6) The

victim also made a statement. The Appellant’s sole issue of error is that he was not

afforded an opportunity to speak after the State and victim made their statements.

{¶14} In State v. Long, 2016-Ohio-535, the defendant was directly addressed by

the court and asked if he’d like to make a statement prior to the court imposing its’

sentence. The defendant made a statement to the court. The court then had a discussion regarding the information contained in the PSI. The defendant requested an opportunity

to address the court a second time and the court denied his request. The defendant in

this case had possession of the PSI and victim-impact statements prior to the sentencing

hearing. The court found that no new information was presented to the court so the need

to allow the defendant another chance to speak was not necessary.

{¶15} In this case, the Appellant was afforded the opportunity to speak based on

the information in the PSI, District 9 reports and victim statement that were provided to

him prior to his allocution. Neither the State, nor the victim, provided any new material

facts in their statements made to the court. The statements made by the State and victim

were a reiteration of information that was contained in reports provided to the Appellant

prior to the sentencing hearing. No new or material evidence was given or considered by

the Court after the Appellant’s allocution.

{¶16} Neither the appellant’s attorney, nor Appellant objected to his right to re-

allocution during the sentencing hearing. State v. Fenderson, 2023-Ohio-2093 found that

the defendant failed to object or otherwise raise the issue before the court, thereby

waiving all by plain error. “Plain error should only be found in exceptional circumstances

and only to prevent a manifest miscarriage of justice.” Id. The Fenderson court went on

to find that “a defendant does not have the right to respond to a victim’s statement unless

the statement includes new material facts, and the court relies on those facts.” Id. 58 citing

R.C. 2930.14(B).

{¶17} As in Fenderson, Appellant herein was afforded his right to allocution and

made a statement to the court prior to sentencing. Appellant has failed to present

evidence that the statements made by the victim and the State, after his statement, presented new material facts that were unknown to Appellant prior to sentencing.

Appellant further failed to show that the court improperly relied upon the statements made

by the State and the victim when issuing its’ sentence.

CONCLUSION

{¶18} Based upon the foregoing, we find Appellant’s assignment of error is without

merit and is therefore overruled. The judgment of the Coshocton County Common Pleas

Court is hereby affirmed. Costs are assessed to Appellant.

By: Montgomery, J.

Hoffman, P.J. and

Popham, J. concur.