Merit Decision: Offender Has Right of Allocution at Community Control Revocation Hearing. State v. Jackson.

On December 15, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Jackson, 2016-Ohio-8127. In a unanimous opinion written by Chief Justice O’Connor, in which Justice French concurred in judgment only, the court held that a hearing following a community-control revocation is a sentencing hearing, and an offender must be given the chance to speak before imposing a sentence at such hearing. The case was argued May 31, 2016.

Case Background

On September 7, 2012, Dominic Jackson pled guilty to receiving stolen property, namely a firearm, which was a fourth degree felony. He was sentenced to two years of community control. The conditions of Jackson’s community control were to take the GED test and obtain GED certification, pay court costs and probation fees, and forfeit the firearm.  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.

In May of 2014, the trial court found that Jackson had failed to abide by the terms of community control by failing to report to his probation officer, and by failing to pay his court costs and probation fees.

In June of 2014, the court held a hearing on the community control violations.  Jackson appeared with his lawyer, and stipulated to the facts of the violation and to a finding of guilty.  While the trial court initially seemed inclined to give Jackson more time to get his act together, some nonverbal communication described by the judge as “sighs and eye-rolling” caused the judge to terminate community control and impose the 18-month prison term. When Jackson tried to speak, the judge told him to be quiet.

On appeal, Jackson argued that the trial court violated his  right to allocution by  not letting him speak before sentencing him.  The state argued there is no such right at a community-control-revocation hearing.  In a split decision, the First District Court of Appeals agreed with Jackson, finding that Crim. R. 32 (A) and R.C. 2929.19(A) gave Jackson the right of allocution at the hearing, and that the error was not harmless.

Read the oral argument preview of the case here.  There really is no analysis of the oral argument because at oral argument the prosecutor admitted that in light of the recent decision in State v. Heinz, the state’s position was now unjustified.   He asked the high court either to dismiss the Jackson case as improvidently accepted, or affirm the decision of the Court of Appeals.  It did the latter.

Key Statutes and Precedent

R.C. 2929.19 (Statutory Requirements for Sentencing Hearing)

R.C. 2929.19(A)(right of allocution at sentencing hearing)

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.

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837 (if the conditions of community control are violated, R.C. 2929.15(B) provides the trial court a great deal of latitude in sentencing the offender, but in doing so, requires the court to consider both the seriousness of the original offense leading to the imposition of community control and the gravity of the community control violation.)

State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000), paragraph one and three of the syllabus (pursuant to Crim.R. 32(A)(1), before imposing sentence, a trial court must address the defendant personally and ask whether he wishes to make a statement or present any information in mitigation of punishment; the failure to do so requires resentencing unless the error is invited or harmless error.)

State v Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, syllabus (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.)

State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965 (concluding that at a community-control-revocation hearing, the court sentences the offender anew and must comply with the relevant sentencing statutes.)

Merit Decision

A community control revocation hearing is a sentencing hearing for purposes of R.C. 2929.19(A) and Crim.R. 32(A)(1). The court rejected the state’s argument in its brief that trial courts are imposing an already existing sentence when they sentence a defendant for a community-control violation.  The court found that trial courts have broad discretion in deciding what to do after finding the offender violated the conditions of community control.  The judge can impose a longer or more restrictive conditions of community control, or a prison term of any length so long is it isn’t longer than what the court stated it would impose originally.

“A trial judge’s broad discretion to fashion a sentence after finding that the offender violated the conditions of community control reinforces our conclusion that a community-control-revocation hearing is a sentencing hearing for purposes of R.C. 2929.19(A) and Crim.R. 32(A)(1). Permitting an offender to speak on his or her own behalf at a community-control-revocation hearing serves the criminal-justice system’s essential goals of fairness and due process,” O’Connor wrote.”

Case Holding

A hearing following community-control revocation is a sentencing hearing, and the trial court must give the offender the chance for allocution before imposing sentence at such a hearing.

Remedy

Jackson must be resentenced.  And clearly, if he wants to speak, he’ll be allowed to.

Case Syllabus

None

Concluding Observations

This was a foregone conclusion, since at oral argument the prosecutor conceded, and asked the high court either to dismiss the Jackson case as improvidently accepted, or affirm the decision of the First District Court of Appeals. As I predicted, the court affirmed the decision of the court of appeals, on the authority of Heinz and Fraley.

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