Oral Argument Preview: Defendant’s Right to Allocution at Community Control Violation Hearing. State of Ohio v. Dominic Jackson

Update. On December 15, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read what happened at this oral argument here.

On May 31, 2016, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Dominic Jackson, 2015-1137. At issue in the case is whether a defendant has a right to allocution at a community control violation hearing.

Case Background

On September 7, 2012, Dominic Jackson pled guilty to receiving stolen property, a fourth degree felony, and was sentenced to two years of community control. The conditions of Jackson’s community control included paying his court costs and probation fees. The trial court explicitly informed Jackson that failure to comply with these terms would result in the court’s imposition of an 18-month prison term.

On May 15, 2014, Jackson was charged with violating the terms of his community control by failing to report to his probation officer on three occasions, as well as failing to pay his court costs and probation fees. At his community control violation hearing, Jackson stipulated to the facts underlying the violations and was subsequently found guilty. While the trial court initially seemed inclined to reinstate Jackson’s community control, a series of verbal and non-verbal comments made by Jackson during the hearing prompted the trial court to impose the 18-month prison term. At several times during the course of the hearing, Jackson attempted to apologize and explain himself to the court, however, neither Jackson nor his attorney were permitted to speak in mitigation.

In a split decision authored by Judge Fischer and joined by Judge DeWine, the First District Court of Appeals held that the trial court failed to comply with Criminal Rule 32 and committed reversible error in failing to give Jackson the right of allocution before imposing a prison sentence, overruling State v. Mynhier, a 2001 decision in which it had held that when a defendant failed to provide the mitigating information on appeal that he would have provided to the trial court had he been given the opportunity, a trial court’s failure to comply with Criminal Rule 32 was harmless error.

Dissenting, Judge Mock would hold that when community control has been revoked and the court is just reinstating an already determined sentence, the defendant no longer has the right to a “second” allocution. The trial court may, in its discretion, allow a defendant to speak in mitigation at the revocation hearing, but allocution is not then required under Crim. R. 32.

Key Statutes and Precedent

R.C. 2929.19(B)(4) (If the sentencing court imposes a community control sanction, the court shall notify the offender that if the conditions of the sanction are violated, the court may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation.)

2929.15(B)(instructs courts how to handle community control violations; (B)(2) limits prison time to that which was imposed at the sentencing hearing.)

 Crim. R. 32 (A) (At the time of imposing sentence, the court shall (1) 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.

 Crim. R. 32.3 (Revocation of Probation)

  1. Hearing. The 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.

State v. Campbell, 90 Ohio St.3d 320 (2000) (the failure to advise a defendant of the right of allocution is reversible error that requires resentencing.)

State v. Mynhier, 146 Ohio App.3d 217 (2001) (trial court’s failure to comply with Crim. R. 32 was harmless error where the defendant failed to come forward with information on appeal that he would have provided the trial court in mitigation of the punishment imposed by the court had the trial court afforded him that opportunity.)

State v Fraley, 2004-Ohio-7110 (a trial court sentencing an offender upon a violation of the offender’s community control sanction must, at the time of such sentencing, notify the offender of the specific prison term that may be imposed for an additional violation of the conditions of the sanction as a prerequisite to imposing a prison term on the offender for a subsequent violation. (syllabus)).

State v. Heinz, Slip Opinion No. 2016-Ohio-2814 (Unlike a probation violation or revocation hearing, a community control proceeding is a formal, adversarial proceeding at which the county prosecuting attorney has a right represent the interests of the state).

State’s Argument

The state acknowledges that a defendant has the right to allocution at sentencing. However, Jackson was given this opportunity when he was originally sentenced to community control.

Once the trial court determines that a community control sentence can be imposed, R.C. 2929.19(B)(4) requires the court to include a suspended prison sentence and to inform the defendant what his term of imprisonment will be if the community control terms are violated. If the trial court fails to do so, a prison term cannot be imposed. It is undisputed that the trial judge informed Jackson at his sentencing hearing that he was sentenced to a suspended 18-month prison term which would be imposed should he violate the terms his community control.

Once a defendant violates the terms of community control, the court is limited to imposing a prison term that does not exceed the suspended term specified at the original sentencing hearing. There is nothing in R.C. 2929.15 that instructs the court to treat a community control violation hearing as a sentencing hearing. Therefore, the appeals court erred when it interpreted Fraley as imposing such a requirement. In Fraley, the court simply held the failure to impose a specific prison term for a community control violation makes that portion of the sentence void. But nothing about Jackson’s sentence was void, because he was properly sentenced to community control, and properly told of the sentence to be imposed for a violation. Therefore, he was entitled only to a community control violation hearing, not a second sentencing hearing, and had no second right of allocution.  Therefore, the trial court did not err when it refused to let Jackson speak in mitigation and simply imposed the previously suspended 18-month prison term.

The court of appeals improperly converted a community control violation hearing into a new sentencing hearing.

Jackson’s Argument

The right of allocution does apply to the imposition of a prison sentence at a community control violation hearing. The court of appeals correctly interpreted Fraley as characterizing a community control violation as a second sentencing hearing. Since a community control violation is the equivalent of a sentencing hearing, the court must comply with the relevant sentencing statutes, including providing the defendant with the right to allocution. It is undisputed that the trial court refused to let Jackson or his attorney speak in mitigation at the violation hearing and as such, Jackson was denied his right to allocution.

Moreover, the right to allocution at community control violation hearings is also fair and practical. The state’s interpretation of Fraley would give only the defendants who were not properly notified of their prison sentence a right to allocution. Such a result is simply impractical.

Allocution is an important part of a community control violation hearing because it allows the court to maintain its broad sentencing discretion. This discretion includes the court’s decision to impose the previously suspended sentence, an alternative sanction, or a reduced sentence. A community control violation hearing is not simply, as the state argues, the imposition of an already existing sentence. Prison and community-control sanctions are alternative sentences for a felony offense. After a community control sanction has been revoked, the court’s imposition of a prison sentence should give rise to a defendant’s right to speak or provide information in mitigation.

Finally, Criminal Rules 32 and 32.3 are complimentary, not conflicting, and support a defendant’s right to allocution at a community control violation hearing. Criminal Rule 32(A)(1) gives a defendant the right to allocution and imposes an affirmative duty on the court to ask the defendant if he would like to exercise that right. Criminal Rule 32.3 provides a defendant the right to a hearing and counsel at a probation revocation hearing. While Criminal Rule 32.3 is silent as to the right of allocution, it is also silent to a defendant’s right to notification and appeal. The silence of Criminal Rule 32.3 as to these rights does not mean that the rights are cut off after the initial sentencing hearing.

While the state is correct that several Ohio appellate courts have found that the right of allocution does not apply in probation revocation hearings, several jurisdictions outside Ohio have found that defendants are entitled to such a right, which is consistent with the history and purpose of the right of allocution, and with both practicality and fairness.

The court should hold that the right of allocution applies to probation revocation proceedings in Ohio.

State’s Proposed Proposition of Law

The right of allocution does not apply to community control violation hearings.

 Amicus In Support of Jackson:

Amicus, the Ohio Public Defender (OPD), is a statewide agency that represents indigent criminal defendants throughout Ohio. OPD is dedicated to ensuring the rights of defendants are protected and enforced. In its brief, OPD asserts that the right of allocution does apply to community control violation proceedings. Like Jackson, OPD states that allocution plays an important role in the trial court’s sentencing discretion. Since the trial court retains discretion in sentencing after a community control violation, a defendant’s right to allocution would be largely lost if the defendant was not given the opportunity to exercise the right at the time a term of imprisonment is actually imposed.

 Votes to Accept the Case

 Yes: Chief Justice O’Connor, and Justices Lanzinger, French, O’Donnell and Kennedy.

No: Justices Pfeifer and O’Neill.

Student Contributor: Danielle List

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