State v. Hargrove

2024 Ohio 5236

• Court: Ohio Court of Appeals
• Decided: November 1, 2024
• Docket: 30096
• Status: Published

Opinion

[Cite as State v. Hargrove, 2024-Ohio-5236.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 30096 : v. : Trial Court Case No. 2023 CR 01667 : MICHAEL HARGROVE : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on November 1, 2024

MARY R. ADELINE LEWIS, Attorney for Appellant

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

.............

EPLEY, P.J.

{¶ 1} Michael Hargrove appeals from a judgment of the Montgomery County Court

of Common Pleas, which revoked his community control sanctions and sentenced him to

18 months in prison. Hargrove claims that the trial court committed reversible error by

denying him the right of allocution at the revocation hearing. For the following reasons, -2-

the trial court’s judgment will be reversed and the matter will be remanded for

resentencing.

I. Facts and Procedural History

{¶ 2} In July 2023, Hargrove was indicted for receiving stolen property, a fourth-

degree felony. The indictment alleged that, on June 6, 2023, Hargrove had received,

retained, or disposed of a 2001 white Chevrolet Express that belonged to J.A., knowing

that the vehicle had been obtained through a theft offense. Four months later, on

November 29, 2023, Hargrove pled guilty to the charged offense, and the trial court

sentenced him to community control. The conditions of his community control included

completing Bright View and any other recommended treatment, receiving mental health

treatment, and paying $4,889 in restitution to J.A. Hargrove was told that he would be

on “no breaks” status and that he faced a prison sentence of between six and 18 months

if he violated the conditions of his community control.

{¶ 3} Almost immediately after sentencing, Hargrove’s whereabouts became

unknown. On December 18, 2023, Hargrove’s probation officer informed the court that

he had absconded. The court issued a capias for Hargrove’s arrest, which was executed

on December 27. On February 1, 2024, after a revocation hearing, the court reinstated

community control with an additional sanction that he successfully complete the STAR

Program. Four days later, the trial court added as an additional sanction that Hargrove

enter and successfully complete the MonDay program. The record does not include a

transcript of the January 31, 2024 revocation hearing, and it is unclear whether Hargrove

was orally informed by the court of the MonDay requirement. -3-

{¶ 4} On February 12, 2024, the trial court issued another notice of revocation,

alleging that Hargrove had violated the conditions of his community control by “self-

terminating” from the MonDay program on February 8. On March 20, 2024, the court

held a revocation hearing, during which Hargrove’s probation officer and Hargrove both

testified. During his testimony, Hargrove described the circumstances of his leaving the

MonDay program. The court found that Hargrove had violated the terms of his

community control and that he was no longer amenable to community control sanctions.

It imposed 18 months in prison and ordered Hargrove to pay restitution of $4,889 and

court costs.

{¶ 5} Hargrove appeals from that judgment, raising one assignment of error.

II. Right of Allocution

{¶ 6} In his sole assignment of error, Hargrove claims that the trial court erred in

revoking his community control and imposing a prison sentence without first providing

him the right of allocution.

{¶ 7} “[A] revocation of community control punishes the failure to comply with the

terms and conditions of community control. . . .” State v. Black, 2011-Ohio-1273, ¶ 17

(2d Dist.). Crim.R. 32.3, which governs revocation of community control, provides that

the trial court “shall not impose a prison term for violation of the conditions of a community

control sanction or revoke probation except after a hearing at which the defendant shall

be present and apprised of the grounds on which action is proposed.” Crim.R. 32.3(A).

{¶ 8} A community control revocation hearing is a sentencing hearing for purposes

of R.C. 2929.19(A) and Crim.R. 32(A)(1). State v. Jackson, 2016-Ohio-8127, ¶ 11. -4-

Accordingly, a trial court must afford an offender an opportunity for allocution before

imposing a sentence for violating the conditions of community control. Id. at ¶ 1, ¶ 17.

{¶ 9} Specifically, the trial court must both “[a]fford counsel an 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.” (Emphasis added.) Crim.R. 32(A)(1). R.C. 2929.19(A)

also grants the offender (among others) the right to “present information relevant to the

imposition of sentence in the case.” The trial court must “ask the offender whether the

offender has anything to say as to why sentence should not be imposed upon the

offender.” Id. A trial court complies with a defendant’s right to allocution when it

personally addresses the defendant and asks whether he or she has anything to say.

E.g., State v. Frazier, 2019-Ohio-1546, ¶ 18 (2d Dist.); State v. Osie, 2014-Ohio-2966,

¶ 180.

{¶ 10} A defendant may decline to exercise his or her right to allocution. State v.

Shepherd, 2021-Ohio-4230, ¶ 24 (2d Dist.); Campbell at 325 (“once the trial court has

asked the defendant if he or she wishes to speak in allocution, he or she may waive the

right to do so.”). However, “Crim.R. 32(A)(1) imposes an affirmative duty on the court to

speak directly to the defendant on the record and inquire whether he or she wishes to

exercise that right or waive it.” State v. Sexton, 2005-Ohio-449, ¶ 31 (2d Dist.).

{¶ 11} “The purpose of affording a defendant the right to speak at sentencing is to

allow the defendant an opportunity to state for the record any further information which

the judge may take into consideration when determining the sentence to be imposed.” -5-

State v. Conkle, 2012-Ohio-1772, ¶ 41 (2d Dist.). The right to allocution is “much more

than an empty ritual: it represents a defendant’s last opportunity to plead his case or

express remorse.” State v. Green, 90 Ohio St.3d 352, 359-360 (2000). The

defendant’s right to allocution is absolute and is not subject to waiver by failing to object.

Campbell at 324-325. Accordingly, if the trial court imposes sentence without affording

the defendant an opportunity to allocute, resentencing is required unless the error was

invited or harmless. Jackson at ¶ 15; State v. Beasley, 2018-Ohio-493, ¶ 200.

{¶ 12} Under the invited error doctrine, an appellant cannot attack a judgment for

errors committed by himself or herself, for errors that the appellant induced the court to

commit, or for errors into which the appellant either intentionally or unintentionally misled

the court and for which the appellant was actively responsible. State v. Minkner, 2011-

Ohio-3106, ¶ 24 (2d Dist.). An error is harmless when it does not affect the defendant’s

substantial rights. See Crim.R. 52(A).

{¶ 13} In this case, Hargrove testified on his own behalf at the revocation hearing.

Defense counsel began by asking Hargrove if he had anything that he needed to tell the

trial court about the circumstances of his leaving the MonDay Program. Hargrove

answered:

Yes. I left the MonDay Program due to the fact that I completed it three –

three different time[s]. Once, I completed it as a therapeutic program. I

got out in 96 days. The other two times, I did it in Lorain County. It’s called

CBCF. It’s a college program now after MonDay, and I completed it. I just

finished not long ago. And just recently just finished that. I just moved -6-

back here only three years ago. And I’m did very well both times. I have

my credits in psychology and sociology through the cognitive program. I –

I – I live by those rules and those grounds every day to embetter (sic) my

Boy Scouts. And the MonDay Program, when it’s therapeutic, I – I – those

are my ground rules. I’ve raised my kids off that. I don’t have nothing

wrong with it, but I’ve – I’ve gotten what I need from the MonDay, I mean,

you know, where I’m standing, from the (indiscernible) program. I

understand that I’m here. Me and [my probation officer] didn’t make it and

get a chance to make it. Maybe he seen my record. Something,

otherwise, you know, a reason why I missed my visit, I didn’t have bus fare

money. And he wanted me to come back the next week. Instead, I told

him I want to come in – make it two weeks instead of one week, because I

get Social Security. And I told him that day, I said, I’m not going to make it

. . . I don’t have the –

{¶ 14} At this point, the court interrupted Hargrove and reminded him that the

question was the reasons he did not attend MonDay. Hargrove apologized and then

said:

That’s the only reason why. And I got a[n] assessment when I was here,

when I first came, and that was through – it was a dual diagnosis by Dr.

Monday (phonetic), and she recommended outpatient, which I had already

signed up for with the 1/15. And I didn’t have – my insurance was kind of

jotty (sic), so I got Anthem Blue Cross Blue Shield, and that’s why, you -7-

know, I didn’t – I don’t – I don’t – it’s not nothing. I just don’t feel like – I got

everything. I love – I love that program. It’s cool. But I – I don't feel like

I need six months of that program no more. Ain’t nothing else more I’m

going to do more after I can’t go anymore off of that. I love to learn, and I

live – live to learn. But sir, it’s just nothing – I’m very apologetic to the Court

and the situation for the time being, but I’m not – I’m 45. I’m taking pride

in my life. I take pride in everything I do. I really am a good man. I went

through a lot in life, but I’ve – I’ve changed completely. I’ve been locked

up five months over this case from now to beginning, you know?

{¶ 15} Hargrove’s direct examination continued:

[DEFENSE COUNSEL:] Mr. Hargrove, was there anything that you could

tell us about [w]hat led you to believe that you should leave the MonDay

Program?

[HARGROVE:] Yes. I find – I find, through 115, I learned me. It was, like,

the final rebirth of myself.

[DEFENSE COUNSEL:] Excuse me, Mr. Hargrove. Just for the clarity of

the record, when you say 115, what are you talking about?

[HARGROVE:] I went there because they have – I went there because they

have – I went there for, what do you call it, I’m bipolar, and I have ADHD

and dyslexia, so the psychiatrist let me know about my drugs, the rest of my

little situation with drugs and everything, and dealt with me, my depression,

with my dad dying and everything. And they just glue me up, and they tell -8-

me exactly what I need, and that’s exactly what I know I need. And that’s

why I’ve been sticking with them. And it was just everything I need. And

then from then on, I’ve – that’s what made me be able to change, completely

change and more I am. I’m staying strong, and I’m, you know – and my

head is up. You know, I could get depressed like everybody else do, but

no. I – I’m – I’m – I feel good to say I’m a citizen now. I – I make mistakes.

I’m still human, but I’m – I’m an honest citizen for once in my life. That’s

really all I can say, sir.

[DEFENSE COUNSEL:] Mr. Hargrove, do you have anything else that you

need to say about not attending the MonDay Program?

[HARGROVE:] I just feel like the MonDay Program is – is good for a person

that has not been through it. If they really want to change, it’s good for

them. I made those changes, so I’m secure in saying I – I thank you for

the MonDay Program. I – I appreciate it with all my heart. I love that

program and thank you for it. But three times is enough for me.

{¶ 16} On cross-examination, Hargrove testified that he had not been notified that

he needed to attend MonDay as part of his community control. He said that the

corrections officers made him go. Hargrove further testified that he contacted his

probation officer before deciding not to complete the MonDay program. He indicated

that his probation officer did not say that he had to complete it; instead, he was told that

if he failed to do so, he would have to go back before the judge.

{¶ 17} On redirect examination, defense counsel asked Hargrove if he would have -9-

stayed at the MonDay program if he had known that leaving would be a violation of his

community control. Hargrove replied that he could not say that he would have. He

repeated that he had gotten everything he needed from the MonDay program.

{¶ 18} At that point, the trial court found that Hargrove had violated the terms of

his community control. The court told Hargrove that he was on “no breaks” status and

that the court had added a sanction that he attend and complete the MonDay program.

The court found that Hargrove had been timely transported to MonDay, but he had elected

not to complete it. The court further stated: “It appears from your testimony and what

I’ve seen that you want to decide what’s best for you, that you don’t want to follow the

rules and regulations of this Court or the probation officer. And you’re not the one that

decides what punishment should be given. MonDay Program is a program to try to assist

you, and we tried to assist you, and that didn’t happen.” The court then concluded that

Hargrove was not amenable to community control, and it revoked Hargrove’s community

control and imposed an 18-month prison sentence.

{¶ 19} The trial court did not ask Hargrove or his attorney if they had anything to

say before it imposed a sentence. Rather, the trial court sentenced Hargrove to prison

immediately after determining that he had violated the conditions of his community

control. The record thus supports Hargrove’s contention that he was denied his right to

allocution.

{¶ 20} The State agrees that the trial court did not offer Hargrove or his counsel an

opportunity for allocution before sentencing Hargrove. It asserts, however, that this

failure was harmless given Hargrove’s lengthy explanation regarding why he chose to -10-

leave the MonDay program, why he felt other sanctions would be more appropriate, and

how his treatment had benefited him. The State argues, “Had the trial court afforded

Hargrove another opportunity to explain his actions and advocate for different community-

control sanctions prior to imposing sentence, it is unlikely the trial court’s sentence would

have changed.” We disagree that the trial court’s failure was harmless.

{¶ 21} As an initial matter, we have recently rejected the contention that the denial

of the right of allocution is harmless “unless the defendant comes forward with specific

information that he would have presented to the trial court had he been given the

opportunity, information which could have mitigated the offense in relation to the

punishment the court could impose.” (Citation omitted.) State v. Champeau, 2024-

Ohio-4602, ¶ 23-24 (2d Dist.) (recognizing that State v. McBride, 2001 WL 62543 (2d

Dist. Jan. 26, 2001), is no longer good law). Indeed, the Ohio Supreme Court has stated

that a defendant should not be required to specify what additional information would have

been presented to the trial court to establish that the lack of allocution was not harmless.

Jackson, 2016-Ohio-8127, ¶ 16.

{¶ 22} We acknowledge that the Ohio Supreme Court has, under certain

circumstances, found that a defendant’s prior statements rendered the lack of allocution

harmless. In State v. Reynolds, 80 Ohio St.3d 670 (1998), a death penalty case, the trial

court failed to ask the defendant if he wanted to make a statement prior to sentencing.

The Court nevertheless found the error harmless, because the defendant had presented

evidence and made an unsworn statement during the penalty phase, the defendant had

sent a letter to the court, and defense counsel had made a statement on the defendant’s -11-

behalf (which included that “Reynolds has addressed the court previously by way of a

letter”). Even there, though, the Reynolds court cautioned that “[t]he penalty phase in a

capital case is not a substitute for a defendant’s right of allocution. Failure to provide a

defendant the right of allocution could constitute reversible error in a future case.” Id. at

684.

{¶ 23} Other Ohio appellate courts have likewise held that a trial court’s failure to

ask a defendant if he or she wanted to make a statement before sentencing was harmless

where defense counsel advocated on the defendant’s behalf and the defendant had an

opportunity to speak in mitigation. E.g., State v. Kincaid, 2023-Ohio-1873 (1st Dist.)

(lack of allocution was harmless where defendant repeatedly interjected during defense

counsel’s arguments on sentencing); State v. Masson, 2017-Ohio-7705 (7th Dist.).

{¶ 24} In contrast, in State v. Poe, 2018-Ohio-3279 (1st Dist.), the trial court’s

failure to ask the defendant if she wished to exercise her right to allocution was not

harmless where, although there was discussion between the court and Poe during

sentencing, it was not directed to mitigation. After the trial court found Poe guilty of

criminal damaging based scratching her neighbor’s car, the court called for “mitigation.”

Defense counsel spoke on Poe’s behalf. The court then asked Poe about some of the

testimony that had been provided at trial (whether she had given the victims permission

to park in her space) but did not ask her if she wished to speak on sentencing. The First

District found reversible error, reasoning that Poe was never adequately informed of or

afforded her right of allocution, and the brief exchange between the court and Poe

touched on guilt, not on punishment. -12-

{¶ 25} In this case, Hargrove provided extensive testimony regarding his

withdrawal from the MonDay program during the merit stage of the revocation hearing.

Defense counsel’s questions focused on that issue, and the trial court redirected

Hargrove when his answer began to stray from that concern. Hargrove was not asked

during his testimony what he believed the consequence should be if he were found to

have violated his community control sanctions, and his testimony did not address that

question. Contrast State v. Hill, 2018-Ohio-4647, ¶ 13 (3d Dist.). During the penalty

stage of the hearing (which immediately followed the merits stage), neither Hargrove nor

his defense counsel had an opportunity to argue for continued community control (with or

without modifications) or for a less severe prison sentence. We cannot conclude that the

trial court’s failure to comply with Crim.R. 32(A)(1) and R.C. 2929.19(A) was harmless.

{¶ 26} Hargrove’s assignment of error is sustained.

III. Conclusion

{¶ 27} The trial court’s judgment will be reversed, and the matter will be remanded

for resentencing.

WELBAUM, J. and HUFFMAN, J., concur.