State v. Masson

96 N.E.3d 1225, 2017 Ohio 7705
CourtCourt of Appeals of Ohio, Seventh District, Mahoning County
DecidedSeptember 8, 2017
DocketNO. 16 MA 0066
StatusPublished
Cited by8 cases

This text of 96 N.E.3d 1225 (State v. Masson) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Seventh District, Mahoning County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Masson, 96 N.E.3d 1225, 2017 Ohio 7705 (Ohio Super. Ct. 2017).

Opinion

JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} Defendant-Appellant Joseph Masson appeals his conviction in the Youngstown Municipal Court. He alleges the court deprived him of his allocution right, failed to ensure the plea agreement was read into the record, and sentenced him too harshly without considering the misdemeanor sentencing factors. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 2} On February 3, 2016, Appellant was arrested for operating a vehicle while under the influence of alcohol (OVI) in violation of R.C. 4511.19(A)(1)(a). He was also charged with the offense of using weapons while intoxicated in violation of R.C. 2923.15(A), which entails using or carrying a firearm while under the influence of alcohol or any drug of abuse. Both offenses were first-degree misdemeanors. Appellant entered into a written plea agreement whereby he agreed to plead no contest to the charges in each case and the state agreed to recommend three days in jail (or a driving intervention program), a fine of $375, and a six-month license suspension on the OVI charge and forfeiture of the gun on the charge of using weapons while intoxicated.

{¶ 3} Upon Appellant's no contest plea, the prosecutor provided an explanation of circumstances: police received a call reporting Appellant fell out of his van into the street and was not able to get up; police found Appellant in the vehicle, which was running; Appellant put the vehicle into gear before the vehicle was shut off; police were not able to conduct field sobriety testing due to Appellant's high level of intoxication; and a weapon was recovered. (Tr. 5).

{¶ 4} In the OVI case, the court sentenced Appellant to 90 days in jail and five years of intensive probation. The court imposed a fine of $1,000 and a three-year license suspension (with ignition interlock and restricted plates for driving privileges). For the offense of using weapons while intoxicated, the court imposed five years of intensive probation, a $100 fine, and forfeiture of the gun. Appellant filed a timely notice of appeal from the April 18, 2016 sentencing entries.

ASSIGNMENT OF ERROR ONE: ALLOCUTION

{¶ 5} Appellant sets forth three assignments of error, the first of which contends:

"THE COURT ERRED WHEN IT DENIED THE DEFENDANT HIS ABSOLUTE RIGHT OF ALLOCUTION."

{¶ 6} Appellant argues while the court directly addressed him prior to sentencing, the court was not addressing him for the purposes of allocution and mitigation as required by Crim.R. 32. In Appellant's statement of the facts, he suggests the *1229court addressed him merely to accuse and demean him, rather than to obtain additional information.

{¶ 7} Crim.R. 32(A)(1) instructs: "At the time of imposing sentence, the court shall * * * Afford 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." The genesis of this rule is the common law right of allocution. See, e.g., Green v. United States , 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). This inquiry "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, 738 N.E.2d 1208 (2000). "There is no exception to the defendant's right to allocution in misdemeanor cases." State v. Price , 7th Dist. No. 14 MA 28, 2015-Ohio-1199, 2015 WL 1419593, ¶ 32, citing State v. Wallace , 7th Dist. No. 12 MA 180, 2013-Ohio-2871, 2013 WL 3368417, ¶ 8.

{¶ 8} The trial court has the affirmative obligation to personally ask the defendant if he wishes to exercise his allocution right. See Green , 90 Ohio St.3d at 359, 738 N.E.2d 1208 ; State v. Campbell , 90 Ohio St.3d 320, 324-325, 738 N.E.2d 1178 (2000). See also Green , 365 U.S. at 305, 81 S.Ct. 653 ("Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing."). As a result, the right is not waived by a mere lack of objection by the defense. Campbell , 90 Ohio St.3d at 324, 738 N.E.2d 1178.

{¶ 9} However, the right to allocution can be waived by failure to respond after the court invites the defendant to speak. Id. at 325, 738 N.E.2d 1178 (noting there was no evidence the defendant knew he had the right to personally address the court prior to sentencing). Additionally, a violation of Crim.R. 32(A)(1) is subject to an analysis under the doctrine of harmless error and the doctrine of invited error. Id. at 324-326, 738 N.E.2d 1178. As to harmless error, "a trial court's failure to address the defendant at sentencing is not prejudicial in every case." Id. at 325, 738 N.E.2d 1178 (but declining to find harmless error in a capital case because the court never heard the defendant make a personal appeal for his life), citing State v. Reynolds , 80 Ohio St.3d 670

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Cite This Page — Counsel Stack

Bluebook (online)
96 N.E.3d 1225, 2017 Ohio 7705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-masson-ohctapp7mahonin-2017.