[Cite as State v. Thompson, 2013-Ohio-1981.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120516 TRIAL NO. 12CRB-11190 Plaintiff-Appellee, : O P I N I O N. vs. :
DWIGHT THOMPSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 17, 2013
John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Brian F. Leurck, Assistant City Prosecutor, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Dwight Thompson challenges his conviction for disorderly conduct,
asserting that the trial court did not afford him his right of allocution. We agree that
the trial court erred when it failed to address Mr. Thompson personally and ask him
if he had anything to say in mitigation. We conclude, however, that under the facts
of this case the error was harmless.
{¶2} Mr. Thompson was charged with assaulting Shaunia Hughes, who, at
the time of the offense, was pregnant with his child. He pleaded guilty to a reduced
charge of disorderly conduct. The trial court accepted the guilty plea, and then
addressed Ms. Hughes about what had happened. After Ms. Hughes gave her side of
the story, the court asked, “Mitigation?” Mr. Thompson’s counsel spoke in
mitigation on Mr. Thompson’s behalf. Following counsel’s statement, the trial court
had an informal colloquy with Ms. Hughes and then asked Mr. Thompson why he
committed the offense.
{¶3} After a brief discussion with Mr. Thompson, the court engaged Ms.
Hughes and her mother in a conversation. Next, the court addressed Mr. Thompson,
saying, “I’m getting ready to lock you up. I’m on the verge of locking you up,” and
then indicated the sentence it expected to impose. Mr. Thompson then asked and
was permitted to address the court. He claimed that he was not the only person who
had done damage, and that Ms. Hughes had flattened his tires. He also assured the
court that he would have no more involvement with Ms. Hughes, but that he would
take care of his unborn child. Thereafter, the court imposed the sentence that it had
previously indicated, and granted Mr. Thompson’s request for a stay of the jail time
for a week.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In his sole assignment of error, Mr. Thompson asserts that the trial
court erred by denying him the right of allocution. “At the time of imposing
sentence, the court shall * * * [a]fford counsel an opportunity to speak on behalf of
the defendant and address the defendant personally and ask if he * * * wishes to
make a statement in his * * * own behalf or present any information in mitigation of
punishment.” Crim.R. 32(A)(1).
{¶5} The failure to afford a defendant his right of allocution is not a
constitutional error. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d
417 (1962). It is, however, a right that is firmly rooted in the common law. Green v.
United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). In Green, the
United States Supreme Court declined to reverse a conviction in which it was not
clear from the record whether the judge’s statement—“did you want to say
something”—was directed to the defendant or to counsel. Id. at 304-305.
Nonetheless, the court announced that “[t]rial judges before sentencing should, as a
matter of good judicial administration, unambiguously address themselves to the
defendant” and “[h]ereafter trial judges should leave no doubt that the defendant has
been issued a personal invitation to speak prior to sentencing.” Id. at 305.
{¶6} Similarly in State v. Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d
1208 (2000), the Ohio Supreme Court vacated a defendant’s sentence in a capital
case because it found that the trial court erred by not explicitly asking the defendant
“in an inquiry directed only to him” whether he had anything to say. “A Crim.R. 32
inquiry is much more than an empty ritual: it represents a defendant’s last
opportunity to plead his case or express remorse,” explained the court. Id.
{¶7} In the case at bar, the trial court’s general statement “mitigation” was
not sufficient; the court should have addressed Mr. Thompson personally to ask
3 OHIO FIRST DISTRICT COURT OF APPEALS
whether he wished to exercise his right of allocution. We conclude this was error,
and now consider whether the error was harmless.
{¶8} The Ohio Supreme Court consistently has reiterated that the failure to
afford the right of allocution may be harmless. In another capital case decided the
same day as Green, the court explained: “We further hold that in a case in which the
trial court has imposed sentence without first asking the defendant whether he or she
wishes to exercise the right of allocution created by Crim.R. 32(A), resentencing is
required unless the error is invited error or harmless.” State v. Campbell, 90 Ohio
St.3d 320, 326, 738 N.E.2d 1178 (2000). See State v. Reynolds, 80 Ohio St.3d 670,
687 N.E.2d 1358 (1998).
{¶9} The question of what constitutes harmless error in the context of the
right to allocution, however, is open to some question. This court has held harmless
a trial court’s failure to afford the appellant his right of allocution when the appellant
did not indicate on appeal what he would have said in mitigation had he been given
the opportunity by the trial court. State v. Mynhier, 146 Ohio App.3d 217, 223, 765
N.E.2d 917 (1st Dist.2001), citing State v. McBride, 2d Dist. No. 18016, 2001 Ohio
App. LEXIS 220 (Jan. 26, 2001), overruled on other grounds, State v. Giles, 1st Dist.
No. C-010582, 2002-Ohio-3297. As in Mynhier, Mr. Thompson did not present to
us what mitigation he would have offered below.
{¶10} Our decision in Mynhier, however, has not been followed in other
Ohio appellate districts. The Second Appellate District, whose case we cited in
support of our conclusion in Mynhier, has since disavowed its holding. State v.
Cowen, 167 Ohio App.3d 233, 2006-Ohio-3191, 854 N.E.2d 579, ¶ 14-17 (2d Dist.).
The Fourth Appellate District likewise has declined to follow Mynhier, pointing out
that “it is unfair to judge a defendant’s mitigation plea on paper when he is entitled
4 OHIO FIRST DISTRICT COURT OF APPEALS
to make that plea in person to the court that is sentencing him.” State v. Spradlin,
4th Dist. No. 04CA727, 2005-Ohio-4704, ¶ 10. Further, how an appellant could
present information on appeal about what he would have said in mitigation has been
questioned. “On direct appeal, an appellant is limited to making arguments based on
the actual record, and cannot present new evidence for consideration.” State v.
Land, 7th Dist. No. 00-C.A.-261, 2002-Ohio-1531, ¶ 21. See State v. Brown, 166
Ohio App.3d 252, 2006-Ohio-1796, 850 N.E.2d 116, ¶ 11 (11th Dist.) (also declining
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[Cite as State v. Thompson, 2013-Ohio-1981.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120516 TRIAL NO. 12CRB-11190 Plaintiff-Appellee, : O P I N I O N. vs. :
DWIGHT THOMPSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 17, 2013
John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Brian F. Leurck, Assistant City Prosecutor, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Dwight Thompson challenges his conviction for disorderly conduct,
asserting that the trial court did not afford him his right of allocution. We agree that
the trial court erred when it failed to address Mr. Thompson personally and ask him
if he had anything to say in mitigation. We conclude, however, that under the facts
of this case the error was harmless.
{¶2} Mr. Thompson was charged with assaulting Shaunia Hughes, who, at
the time of the offense, was pregnant with his child. He pleaded guilty to a reduced
charge of disorderly conduct. The trial court accepted the guilty plea, and then
addressed Ms. Hughes about what had happened. After Ms. Hughes gave her side of
the story, the court asked, “Mitigation?” Mr. Thompson’s counsel spoke in
mitigation on Mr. Thompson’s behalf. Following counsel’s statement, the trial court
had an informal colloquy with Ms. Hughes and then asked Mr. Thompson why he
committed the offense.
{¶3} After a brief discussion with Mr. Thompson, the court engaged Ms.
Hughes and her mother in a conversation. Next, the court addressed Mr. Thompson,
saying, “I’m getting ready to lock you up. I’m on the verge of locking you up,” and
then indicated the sentence it expected to impose. Mr. Thompson then asked and
was permitted to address the court. He claimed that he was not the only person who
had done damage, and that Ms. Hughes had flattened his tires. He also assured the
court that he would have no more involvement with Ms. Hughes, but that he would
take care of his unborn child. Thereafter, the court imposed the sentence that it had
previously indicated, and granted Mr. Thompson’s request for a stay of the jail time
for a week.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In his sole assignment of error, Mr. Thompson asserts that the trial
court erred by denying him the right of allocution. “At the time of imposing
sentence, the court shall * * * [a]fford counsel an opportunity to speak on behalf of
the defendant and address the defendant personally and ask if he * * * wishes to
make a statement in his * * * own behalf or present any information in mitigation of
punishment.” Crim.R. 32(A)(1).
{¶5} The failure to afford a defendant his right of allocution is not a
constitutional error. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d
417 (1962). It is, however, a right that is firmly rooted in the common law. Green v.
United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). In Green, the
United States Supreme Court declined to reverse a conviction in which it was not
clear from the record whether the judge’s statement—“did you want to say
something”—was directed to the defendant or to counsel. Id. at 304-305.
Nonetheless, the court announced that “[t]rial judges before sentencing should, as a
matter of good judicial administration, unambiguously address themselves to the
defendant” and “[h]ereafter trial judges should leave no doubt that the defendant has
been issued a personal invitation to speak prior to sentencing.” Id. at 305.
{¶6} Similarly in State v. Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d
1208 (2000), the Ohio Supreme Court vacated a defendant’s sentence in a capital
case because it found that the trial court erred by not explicitly asking the defendant
“in an inquiry directed only to him” whether he had anything to say. “A Crim.R. 32
inquiry is much more than an empty ritual: it represents a defendant’s last
opportunity to plead his case or express remorse,” explained the court. Id.
{¶7} In the case at bar, the trial court’s general statement “mitigation” was
not sufficient; the court should have addressed Mr. Thompson personally to ask
3 OHIO FIRST DISTRICT COURT OF APPEALS
whether he wished to exercise his right of allocution. We conclude this was error,
and now consider whether the error was harmless.
{¶8} The Ohio Supreme Court consistently has reiterated that the failure to
afford the right of allocution may be harmless. In another capital case decided the
same day as Green, the court explained: “We further hold that in a case in which the
trial court has imposed sentence without first asking the defendant whether he or she
wishes to exercise the right of allocution created by Crim.R. 32(A), resentencing is
required unless the error is invited error or harmless.” State v. Campbell, 90 Ohio
St.3d 320, 326, 738 N.E.2d 1178 (2000). See State v. Reynolds, 80 Ohio St.3d 670,
687 N.E.2d 1358 (1998).
{¶9} The question of what constitutes harmless error in the context of the
right to allocution, however, is open to some question. This court has held harmless
a trial court’s failure to afford the appellant his right of allocution when the appellant
did not indicate on appeal what he would have said in mitigation had he been given
the opportunity by the trial court. State v. Mynhier, 146 Ohio App.3d 217, 223, 765
N.E.2d 917 (1st Dist.2001), citing State v. McBride, 2d Dist. No. 18016, 2001 Ohio
App. LEXIS 220 (Jan. 26, 2001), overruled on other grounds, State v. Giles, 1st Dist.
No. C-010582, 2002-Ohio-3297. As in Mynhier, Mr. Thompson did not present to
us what mitigation he would have offered below.
{¶10} Our decision in Mynhier, however, has not been followed in other
Ohio appellate districts. The Second Appellate District, whose case we cited in
support of our conclusion in Mynhier, has since disavowed its holding. State v.
Cowen, 167 Ohio App.3d 233, 2006-Ohio-3191, 854 N.E.2d 579, ¶ 14-17 (2d Dist.).
The Fourth Appellate District likewise has declined to follow Mynhier, pointing out
that “it is unfair to judge a defendant’s mitigation plea on paper when he is entitled
4 OHIO FIRST DISTRICT COURT OF APPEALS
to make that plea in person to the court that is sentencing him.” State v. Spradlin,
4th Dist. No. 04CA727, 2005-Ohio-4704, ¶ 10. Further, how an appellant could
present information on appeal about what he would have said in mitigation has been
questioned. “On direct appeal, an appellant is limited to making arguments based on
the actual record, and cannot present new evidence for consideration.” State v.
Land, 7th Dist. No. 00-C.A.-261, 2002-Ohio-1531, ¶ 21. See State v. Brown, 166
Ohio App.3d 252, 2006-Ohio-1796, 850 N.E.2d 116, ¶ 11 (11th Dist.) (also declining
to adopt the rule established in Mynhier). Although the reasoning of the other
districts is persuasive, we need not decide now whether we will continue to adhere to
our holding in Mynhier because, under the totality of the circumstances in this case,
we conclude that the court’s error was harmless.
{¶11} In Reynolds, the Ohio Supreme Court addressed the effect of the
trial court’s failure to afford a defendant his right of allocution before sentencing him
to the death penalty. Reynolds, 80 Ohio St.3d at 683-684, 687 N.E.2d 1358. In that
case, the trial court had filed its sentencing decision before the hearing was held. Id.
at 683. The prosecutor and defense counsel then were invited to address the court
on the defendant’s aggravated murder count, but the court did not invite the
defendant to speak during the sentencing hearing. Id. On appeal, the Supreme
Court held that the trial court’s failure to strictly comply with Crim.R. 32(A) was
harmless because the defendant had made an unsworn statement during the penalty
phase of the trial, had sent a letter to the court, and had had counsel make a
statement on his behalf. Id. at 684. The court acknowledged that the trial court
should have waited to file its sentencing decision until the hearing was complete, but
concluded that the defendant was not prejudiced by the early filing. “Had new
5 OHIO FIRST DISTRICT COURT OF APPEALS
evidence or information been presented during the sentencing hearing, the trial
court could have modified its sentencing order.” Id.
{¶12} Here, the court addressed Mr. Thompson to ask the reason for his
actions prior to making the statement about his expected sentence. Further, Mr.
Thompson asked for and was given a further opportunity to speak to the court before
the court entered judgment. Even though the court had indicated its anticipated
sentence, the hearing continued. The court heard from the defendant and made its
final pronouncement of sentence after the defendant spoke. As recognized by the
Supreme Court in Reynolds, had the court been swayed by Mr. Thompson’s
comments, it could have changed the sentence it had previously indicated. Reading
the record as a whole, we are satisfied that Mr. Thompson had a chance to make his
case in mitigation to the trial judge, and that he did not suffer prejudice despite the
less than orderly nature of the plea colloquy conducted by trial judge.
{¶13} We conclude, therefore, that in this case the court’s failure to comply
strictly with Crim.R. 32(A) was harmless. See Cleveland v Gholston, 8th Dist. No.
96592, 2011-Ohio-6164. The sole assignment of error is overruled, and we affirm the
judgment of the trial court.
Judgment affirmed.
D INKELACKER , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.