[Cite as State v. Kincaid, 2023-Ohio-1873.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220628 C-220629 Plaintiff-Appellee, : TRIAL NOS. B-1601516 B-2100598 vs. :
CHISTOPHER KINCAID, : O P I N I O N. Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: June 7, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Christopher Kincaid appeals his sentences,
arguing that the trial court denied him his right to allocution. Because any error made
by the trial court was harmless, we overrule Kincaid’s sole assignment of error.
I. Facts and Procedure
{¶2} In 2016, Kincaid was indicted for one count of felonious assault. Kincaid
pleaded guilty. The trial court sentenced him to community control and inpatient
treatment.
Kincaid was charged with arson while on community control for felonious assault
{¶3} The trial court revoked and restored Kincaid’s community control three
times within eight months. In February 2021, the state charged Kincaid with violating
community control for the fourth time due to his being indicted on an aggravated-
arson charge. Kincaid pleaded guilty to both a reduced charge of arson and violating
the terms of his community control on the felonious-assault charge.
Kincaid interjected throughout the sentencing hearing
{¶4} During the sentencing hearing, it appears that the court was addressing
defense counsel when it initially asked, “Did you want to say anything?” Kincaid’s
counsel responded with an argument in mitigation. Kincaid interjected throughout the
sentencing hearing, asking if he can “say anything,” and explaining that he “was just
doing things” when he “was on crack.” Kincaid stated that he did not set a fire, but he
was “lighting papers for [his] crack because [he] didn’t have a lighter.”
{¶5} Kincaid continued to interject as the trial court directly addressed
Kincaid’s counsel and the probation officer. At one point during the hearing, the
2 OHIO FIRST DISTRICT COURT OF APPEALS
dialogue reflects both counsel and the deputy asking Kincaid to be quiet as counsel
continued the mitigation argument:
THE COURT: We did cut him – I’m not maxing him out. We did give
him a break. We reduced it from an [aggravated] arson down from an
arson.
MR. NEFF: It was reduced from an F2 to a felony of the third degree.
THE COURT: [S]o you saved him a lot of time there because with
initially an [aggravated] arson –
THE DEFENDANT: Yes, sir.
THE COURT: [H]e faced, wow, really a substantial amount of time.
THE DEFENDANT: Yes, sir, two to eight years, yes, sir.
THE COURT: Because originally it was a felony one.
MR. NEFF: It was a felony two.
THE COURT: Felony two, so it carries eight to 12 years in prison. All
right. Anything else you want to add on this?
THE DEFENDANT: Judge Ruehlman, I’ve been real good.
THE COURT: You did a good job for him. You saved him some time. I’m
just worried about society in general. I’ve taken a lot of chances on him.
THE DEFENDANT: Give me a chance, Judge Ruehlman.
MR. NEFF: Let me talk for a minute.
THE DEFENDANT: Yes, sir, yes, sir, yes, sir.
MR. NEFF: If you were to put him on community control, he tells us he
can live with his mom.
THE DEFENDANT: [S]ure can.
3 OHIO FIRST DISTRICT COURT OF APPEALS
MR. NEFF: His mother’s address is on the form that we provided, which
is the notification. I did go over that with him and he signed it so he
knows he has an obligation to register and then notify of change of
address. I’ll submit on that.
THE COURT: [W]e have to do the registration.
THE DEFENDANT: Judge Ruehlman, I’ll do whatever time you want
me to do if you give me a chance. Give me a chance, Judge Ruehlman.
Give me a chance, Judge Ruehlman. If I don’t Judge Ruehlman, Judge
Ruehlman. I won’t mess up and if I don’t --
DEPUTY SHERIFF: [S]hhhh.
{¶6} Other than suggesting to Kincaid that he refrain from discussing his
drug use, the trial court did not directly address Kincaid until it explained his
requirement to register as a violent offender:
THE COURT: * * * so right now I got you -- when you get out, it says you
will be living at [address].
THE COURT: [S]o if for some reason when you get out of prison that’s
changed, you are going to -- when you come into this county after you’re
released, within ten days of coming to this county, occupying a dwelling
for no more than three days, so if you are in a dwelling then you have to
do it for three days and then come to the sheriff’s department and
register. And then a year from that date, you have to register again and
you have to do this for the rest of your life. Do you understand that?
4 OHIO FIRST DISTRICT COURT OF APPEALS
THE COURT: [O]kay. Good.
THE DEFENDANT: I won’t mess up, Judge Ruehlman.
THE COURT: [O]kay.
{¶7} The trial court responded to defense counsel’s question involving
waiving Kincaid’s registration fees. It was not clear to whom the court was speaking
when it asked whether “you” would like to add anything.
MR. NEFF: Judge, there’s a number of fees included with the
registration. Is it possible for the court to waive those fees?
THE COURT: Yes, I was going to go over that next because I’m waiving
all of the costs.
***
THE DEFENDANT: I get social security, Judge Ruehlman. I can pay for
that.
THE COURT: Anything else you wanted to add then?
MR. NEFF: Judge, there’s nothing else I can add. * * * And, again, I’d
ask you to release him to the address that he has on the form. Put him
on community control. I certainly understand the Court’s concerns.
After Kincaid’s counsel offered argument involving mitigation, the court stated, “All
right. And then defendant has already made a statement.”
{¶8} The trial court sentenced Kincaid to eight years on the felonious-assault
count and 36 months for the arson charge, to be served consecutively. On appeal,
Kincaid maintains that the trial court failed to directly address him and ask whether
he had anything to say before the court imposed the sentences.
II. Law and Analysis
5 OHIO FIRST DISTRICT COURT OF APPEALS
A. A trial court must directly address a defendant as to his right to allocution
{¶9} This court and the Ohio Supreme Court have held that “[t]rial courts
must painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution.” State
v. Osume, 1st Dist. Hamilton No. C-140390, 2015-Ohio-3850, ¶ 19, quoting State v.
Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d 1208 (2000). When imposing
sentences, the trial court must address defendants personally to ask whether they wish
to make a statement on their own behalf or present any information in mitigation of
punishment. Osume at ¶ 19; see Crim.R. 32(A)(1); R.C. 2929.19(A). The right to
allocution includes defendants being sentenced following community-control
violations. R.C. 2929.19(A)(1); Crim.R. 32(A)(1); see State v. McAfee, 1st Dist.
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[Cite as State v. Kincaid, 2023-Ohio-1873.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220628 C-220629 Plaintiff-Appellee, : TRIAL NOS. B-1601516 B-2100598 vs. :
CHISTOPHER KINCAID, : O P I N I O N. Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: June 7, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Christopher Kincaid appeals his sentences,
arguing that the trial court denied him his right to allocution. Because any error made
by the trial court was harmless, we overrule Kincaid’s sole assignment of error.
I. Facts and Procedure
{¶2} In 2016, Kincaid was indicted for one count of felonious assault. Kincaid
pleaded guilty. The trial court sentenced him to community control and inpatient
treatment.
Kincaid was charged with arson while on community control for felonious assault
{¶3} The trial court revoked and restored Kincaid’s community control three
times within eight months. In February 2021, the state charged Kincaid with violating
community control for the fourth time due to his being indicted on an aggravated-
arson charge. Kincaid pleaded guilty to both a reduced charge of arson and violating
the terms of his community control on the felonious-assault charge.
Kincaid interjected throughout the sentencing hearing
{¶4} During the sentencing hearing, it appears that the court was addressing
defense counsel when it initially asked, “Did you want to say anything?” Kincaid’s
counsel responded with an argument in mitigation. Kincaid interjected throughout the
sentencing hearing, asking if he can “say anything,” and explaining that he “was just
doing things” when he “was on crack.” Kincaid stated that he did not set a fire, but he
was “lighting papers for [his] crack because [he] didn’t have a lighter.”
{¶5} Kincaid continued to interject as the trial court directly addressed
Kincaid’s counsel and the probation officer. At one point during the hearing, the
2 OHIO FIRST DISTRICT COURT OF APPEALS
dialogue reflects both counsel and the deputy asking Kincaid to be quiet as counsel
continued the mitigation argument:
THE COURT: We did cut him – I’m not maxing him out. We did give
him a break. We reduced it from an [aggravated] arson down from an
arson.
MR. NEFF: It was reduced from an F2 to a felony of the third degree.
THE COURT: [S]o you saved him a lot of time there because with
initially an [aggravated] arson –
THE DEFENDANT: Yes, sir.
THE COURT: [H]e faced, wow, really a substantial amount of time.
THE DEFENDANT: Yes, sir, two to eight years, yes, sir.
THE COURT: Because originally it was a felony one.
MR. NEFF: It was a felony two.
THE COURT: Felony two, so it carries eight to 12 years in prison. All
right. Anything else you want to add on this?
THE DEFENDANT: Judge Ruehlman, I’ve been real good.
THE COURT: You did a good job for him. You saved him some time. I’m
just worried about society in general. I’ve taken a lot of chances on him.
THE DEFENDANT: Give me a chance, Judge Ruehlman.
MR. NEFF: Let me talk for a minute.
THE DEFENDANT: Yes, sir, yes, sir, yes, sir.
MR. NEFF: If you were to put him on community control, he tells us he
can live with his mom.
THE DEFENDANT: [S]ure can.
3 OHIO FIRST DISTRICT COURT OF APPEALS
MR. NEFF: His mother’s address is on the form that we provided, which
is the notification. I did go over that with him and he signed it so he
knows he has an obligation to register and then notify of change of
address. I’ll submit on that.
THE COURT: [W]e have to do the registration.
THE DEFENDANT: Judge Ruehlman, I’ll do whatever time you want
me to do if you give me a chance. Give me a chance, Judge Ruehlman.
Give me a chance, Judge Ruehlman. If I don’t Judge Ruehlman, Judge
Ruehlman. I won’t mess up and if I don’t --
DEPUTY SHERIFF: [S]hhhh.
{¶6} Other than suggesting to Kincaid that he refrain from discussing his
drug use, the trial court did not directly address Kincaid until it explained his
requirement to register as a violent offender:
THE COURT: * * * so right now I got you -- when you get out, it says you
will be living at [address].
THE COURT: [S]o if for some reason when you get out of prison that’s
changed, you are going to -- when you come into this county after you’re
released, within ten days of coming to this county, occupying a dwelling
for no more than three days, so if you are in a dwelling then you have to
do it for three days and then come to the sheriff’s department and
register. And then a year from that date, you have to register again and
you have to do this for the rest of your life. Do you understand that?
4 OHIO FIRST DISTRICT COURT OF APPEALS
THE COURT: [O]kay. Good.
THE DEFENDANT: I won’t mess up, Judge Ruehlman.
THE COURT: [O]kay.
{¶7} The trial court responded to defense counsel’s question involving
waiving Kincaid’s registration fees. It was not clear to whom the court was speaking
when it asked whether “you” would like to add anything.
MR. NEFF: Judge, there’s a number of fees included with the
registration. Is it possible for the court to waive those fees?
THE COURT: Yes, I was going to go over that next because I’m waiving
all of the costs.
***
THE DEFENDANT: I get social security, Judge Ruehlman. I can pay for
that.
THE COURT: Anything else you wanted to add then?
MR. NEFF: Judge, there’s nothing else I can add. * * * And, again, I’d
ask you to release him to the address that he has on the form. Put him
on community control. I certainly understand the Court’s concerns.
After Kincaid’s counsel offered argument involving mitigation, the court stated, “All
right. And then defendant has already made a statement.”
{¶8} The trial court sentenced Kincaid to eight years on the felonious-assault
count and 36 months for the arson charge, to be served consecutively. On appeal,
Kincaid maintains that the trial court failed to directly address him and ask whether
he had anything to say before the court imposed the sentences.
II. Law and Analysis
5 OHIO FIRST DISTRICT COURT OF APPEALS
A. A trial court must directly address a defendant as to his right to allocution
{¶9} This court and the Ohio Supreme Court have held that “[t]rial courts
must painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution.” State
v. Osume, 1st Dist. Hamilton No. C-140390, 2015-Ohio-3850, ¶ 19, quoting State v.
Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d 1208 (2000). When imposing
sentences, the trial court must address defendants personally to ask whether they wish
to make a statement on their own behalf or present any information in mitigation of
punishment. Osume at ¶ 19; see Crim.R. 32(A)(1); R.C. 2929.19(A). The right to
allocution includes defendants being sentenced following community-control
violations. R.C. 2929.19(A)(1); Crim.R. 32(A)(1); see State v. McAfee, 1st Dist.
Hamilton No. C-130567, 2014-Ohio-1639, ¶ 14.
{¶10} When trial courts impose sentences without first asking defendants if
they wish to exercise their right to allocution, resentencing is required unless the error
is invited error or harmless. Osume at ¶ 22; see McAfee at ¶ 14; State v. Jackson, 1st
Dist. Hamilton No. C-140384, 2015-Ohio-2171, ¶ 8; State v. Campbell, 90 Ohio St.3d
320, 738 N.E.2d 1178 (2000), paragraph three of the syllabus. Accordingly, errors in
affording the right of allocution are subject to a harmless-error analysis. Campbell at
326.
{¶11} Kincaid argues that although the trial court allowed Kincaid to “interject
at numerous points before pronouncing its sentences,” he was not given the right of
allocution. It appears that the trial court was addressing defense counsel when it
asked, “Anything else you want to add then?” Kincaid’s counsel, not Kincaid,
responded. Meanwhile, Kincaid was told by the deputy and his counsel to be quiet.
6 OHIO FIRST DISTRICT COURT OF APPEALS
Although the record is unclear, it appears that Kincaid may have been denied his right
to allocution.
{¶12} But assuming that Kincaid was denied his right to allocution, any such
error was harmless.
Kincaid made unsworn statements during the sentencing phase
{¶13} Courts have found harmless error where the defendant makes a
statement in mitigation of punishment despite the court not directly asking the
defendant for a statement. Cleveland v. Gholston, 8th Dist. Cuyahoga No. 96592,
2011-Ohio-6164, ¶ 18.
{¶14} In Osume, Osume’s mother made a sworn statement and the trial court
addressed defense counsel, the state, and probation. Osume, 1st Dist. Hamilton No. C-
140390, 2015-Ohio-3850, at ¶ 4-7. But the trial court failed to address Osume before
sentencing him. Id. at ¶ 7. This court held that there were no unusual circumstances
to hold the error harmless where the trial court failed to address Osume personally
and ask if he wished to make a statement on his own behalf or present any information
in mitigation of punishment before imposing the sentence. Id. at ¶ 24.
{¶15} In Reynolds, the Ohio Supreme Court found an unusual circumstance
and held that Reynolds took his opportunity to speak on his own behalf as he presented
evidence and made an unsworn statement in the “penalty phase” of his case. State v.
Reynolds, 80 Ohio St.3d 670, 684, 687 N.E.2d 1358 (1998). The court held that the
trial court’s denial of allocution was harmless and not prejudicial because Reynolds
had previously sent a letter to the trial court as to sentencing, Reynolds made an
unsworn statement during sentencing, and defense counsel made a statement on
Reynolds’s behalf. Id.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Here, Kincaid spoke on his own behalf in mitigation by (1) explaining
his drug use being the cause of the fire, (2) saying that he had “been real good” and
had been taking his medication, and (3) repeatedly asking the court to give him
another chance. Defense counsel spoke on Kincaid’s behalf and requested that Kincaid
be put on community control for the arson conviction. See State v. Turjonis, 7th Dist.
Mahoning No. 11 MA 28, 2012-Ohio-4215, ¶ 10 (While the trial court failed to ask
appellant if he wanted to make one last statement, appellant gave his addiction to
heroin as the reason for mitigating his sentence. Thus, appellant spoke on his own
behalf in mitigation by explaining his drug-addiction history to the judge, and defense
counsel asked the court for community control.).
{¶17} Because Kincaid had the opportunity to address the court and did
address the court, any error in failing to personally ask Kincaid if he would like to make
a statement before sentencing was harmless error. We overrule Kincaid’s sole
assignment of error.
III. Conclusion
{¶18} Because Kincaid addressed the court throughout the sentencing
hearing, any error was harmless. We affirm the trial court’s judgments.
Judgments affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.