[Cite as State v. Yates, 195 Ohio App.3d 33, 2011-Ohio-3619.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

THE STATE OF OHIO,                               :
                                                 :     Appellate Case No. 24105
        Appellee,                                :
                                                 :     Trial Court Case No. 09-CR-3827
v.                                               :
                                                 :     (Criminal Appeal from
YATES,                                           :     (Common Pleas Court)
                                                 :
        Appellant.                               :
                                                 :
                                              ...........

                                             OPINION

                              Rendered on the 22nd day of July, 2011.

                                              ...........

       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Kirsten A.
Brandt, Assistant Prosecuting Attorney, for appellee.

Ashelman & Lowe, Scott A. Ashelman, and Aaron D. Lowe, for appellant.

                                                         .............

Per Curiam.

        {¶ 1} Defendant-appellant, RejuanYates, appeals from his conviction and sentence

for possession of controlled substances, after a negotiated guilty plea. Yates contends that the

trial court erred in accepting his guilty plea because he was obviously intoxicated; the trial

court relied on matters outside the record as a basis for enhancing his sentence; and the trial

court sentenced him without making statutorily required factual findings.
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        {¶ 2} We conclude that there is evidence in the record to support the trial court’s

finding that Yates’s plea was voluntary and that the trial court did not err in failing to make

certain findings that were required by statute before State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, severed that requirement from the statute. The trial court did err, however,

by giving apparent consideration to the report of a bail bondsman at the sentencing hearing

without giving Yates a chance to respond to the report. Accordingly, Yates’s sentence is

reversed, and this cause is remanded for further proceedings consistent with this opinion.

                                                      I

        {¶ 3} RejuanYates pleaded guilty to possession of controlled substances on a promise

that he would receive a two-year minimum sentence. The trial court made it clear to Yates at

the plea hearing that the two-year sentence agreement was conditioned on Yates appearing for

his presentence-investigation interview and for his sentencing hearing. The trial court made it

clear to Yates that should he fail to appear at either time, the trial court could, in its discretion,

sentence Yates to any prison term within the two-to-eight year range prescribed by statute.

Yates failed to appear at either the interview or the sentence hearing.

        {¶ 4} At the rescheduled sentencing hearing, after Yates was apprehended, the trial

court reminded Yates of the plea condition and asked him if he understood that as a result of

the broken condition, the court could sentence him to more than two years of imprisonment.

Yates said he understood. The trial judge then asked Yates if he wanted to make a statement

or tell the court anything before sentencing. In response, Yates explained in detail that he

was attending to his recently widowed and elderly grandmother, who was in danger of

becoming homeless, and those duties kept him from attending the originally scheduled
                                                                                          3


sentencing hearing. Defense counsel vouched for his client.

       {¶ 5} The trial court responded by telling Yates that it had a report from his bail

bondsperson detailing how he had been transporting drugs interstate the entire time he was out

on bond.     Based on the report, the trial court concluded that Yates’s story was an

“unadulterated lie.” The trial court opined that Yates had “thumbed [his] nose at everything

other than what [he] felt like doing,” that he “chose to violate the agreement,” and that his

story about his grandmother was “a bunch of garbage.” At one point, Yates raised his hand

partway indicating an intent to speak. But the trial court cut him off, stating:

       {¶ 6} “No, sir, this is my turn to talk now. Because, as I said, your bondsperson was

well aware from talking with your girlfriend that the two of you were running cars

continuously between Dayton and Cincinnati the two months that we couldn’t find you. So I

don’t find one word of what you’ve said to be credible.”

       {¶ 7} Allowing no more discussion, the trial court sentenced Yates to five years’

imprisonment. The bondsperson’s report is not in the record on appeal and does not appear to

have been shown to Yates or to his counsel.

                                                    II

       {¶ 8} Yates’s first assignment of error is as follows:

       {¶ 9} “The trial court erred when it accepted a guilty plea from defendant without

first properly ascertaining whether the plea was knowingly, intelligently, and voluntarily

given, as is required by State v. Ballard.”

       {¶ 10} Yates contends that the trial judge should have noticed that he was intoxicated

at the sentencing hearing, and that his plea was therefore not knowing and voluntary. In
                                                                                              4


support, Yates claims that upon being asked whether he was intoxicated, he paused for ten

seconds and made only an unintelligible sound.

       {¶ 11} We find no support for this claim in the record.           We have reviewed the

audiovisual recording of the proceeding and find that only two seconds passed before Yates

responded with an audible “No.” Nothing in Yates’s verbal or physical behavior indicated

intoxication. From the record, we cannot say that the trial court erred by finding that Yates’s

plea was knowing and voluntary. The first assignment of error is overruled.

                                                   III

       {¶ 12} “The trial court erred by failing to remain neutral and detached when it engaged

in extra-judicial investigation into the facts surrounding the case, and by conducting

impermissible judicial fact-finding in violation of defendant’s 6th Amendment rights as

defined by Blakely v. Washington.”

       {¶ 13} Yates argues that the bondsperson’s report was unsubstantiated and inaccurate

and therefore the trial court erred in relying on it to enhance Yates’s sentence. Yates cites

State v. Haynes (June 1, 2001), Montgomery App. No. 18410, in arguing that the trial court

could not use any part of the bondsperson’s report to find extra aggravating factors when

imposing sentence. Yates also claims that the trial court abused its discretion by obtaining

the report through an extramural investigation. We disagree.

       {¶ 14} Yates never objected to the use of the report, and the trial court never

mentioned the report’s criminal allegations when reciting its reasons for deciding on a

five-year sentence. Thus, it is not clear from this record whether the trial court used the

criminal allegations in the report as a basis for enhancing the sentence, or merely as a basis for
                                                                                             5


rejecting Yates’s explanation for his failure to appear. Moreover, although the Haynes court

discussed the need for assessing a document’s reliability when it is used at sentencing, Haynes

did not involve a broken plea condition, which, in this case, vitiated an agreed sentence.

       {¶ 15} The record does not establish that the trial judge engaged in an extramural

investigation.   By Yates’s own argument, the bondsperson had the motivation to act

independently. Moreover, R.C. 2929.19(B)(1) requires a trial judge to consider the record

and “any information presented at the hearing by any person” that is relevant to the imposition

of sentence. Absent evidence to the contrary, we presume that the bondsperson presented the

report on her own initiative, as the statute contemplates.

       {¶ 16} Yates also claims that he never had a meaningful opportunity to withdraw his

plea. He claims he tried to withdraw his guilty plea at the sentencing hearing before the judge

cut him off with “[n]o, sir, this is my turn to talk now.” Because no motion to withdraw the

plea was ever made, we cannot speculate on what Yates might have said had the court let him

speak. See State v. Cooper, Marion App. No. 9-08-42, 2009-Ohio-1922, ¶ 24 (because the

trial court could not presume to know what the defendant might have said in mitigation, it

could not presume to know how his statement might influence the trial court). We do know

that upon introduction of the report, Yates wanted to say something. The issue, therefore, is

whether the trial court erred in denying Yates a chance to speak at that time. That pertains to

Yates’s right of allocution, which we conclude may have been violated.

       {¶ 17} R.C. 2929.19 and Crim.R. 32 govern the right of allocution. R.C. 2929.19(A)

states: “At the hearing * * * with the approval of the court, any other person may present

information relevant to the imposition of sentence in the case. The court shall inform the
                                                                                             6


offender of the verdict of the jury or finding of the court and ask the offender whether the

offender has anything to say as to why sentence should not be imposed upon the offender."

       {¶ 18} Crim.R. 32(A) requires the trial court, at the sentencing hearing, to "(1) [a]fford

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.”

       {¶ 19} The "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." State v. Green (2000), 90

Ohio St.3d 352, 359-360. The Ohio Rules of Evidence do not apply at the sentencing

hearing. Evid.R. 101(C)(3). The requirement of allocution is fulfilled when the court’s

conduct clearly shows the defendant and his counsel that each has a right to make a statement

before sentence is imposed. Defiance v. Cannon (1990), 70 Ohio App.3d 821, 828.

       {¶ 20} The defendant cannot waive the right before the court makes that personal

address. State v. Campbell (2000), 90 Ohio St.3d 320, 324-325. Otherwise, when a trial

court violates a defendant’s right of allocution, the sentence shall be reversed and the cause

shall be remanded for resentencing, unless the error was invited or harmless. Id. at 326.

       {¶ 21} A trial court errs when it does not let the defendant address new information

introduced and considered by the trial court at sentencing. See State v. Castle, Lawrence

App. No. 03CA24, 2004-Ohio-1992, ¶ 9; State v. Sanders, Cuyahoga App. No. 81450,

2003-Ohio-1163, ¶ 13 (trial court erred by not letting defendant address evidence introduced

after defendant’s statement, which the trial court considered before imposing sentence). The

error is presumed prejudicial, because the defendant is prevented from speaking at the
                                                                                          7


appropriate time. Sanders at ¶ 13-16.

       {¶ 22} Courts have found the prejudice presumption rebutted when the defendant

declined to speak at the proper time or the new evidence is extraneous. See State v. Storey,

Cuyahoga App. No. 87030, 2006-Ohio-3498, ¶ 40. The error will also be harmless when the

defendant does not object to the new information or if the court’s reasons for the enhanced

sentence are unrelated to it.    State v. Clark, Crawford App. Nos. 3-05-14 and 3-05-20,

2006-Ohio-1421, ¶ 7 (although the trial court erred in speculating about matters outside the

record, reimposition of sentence was based on violations of the conditional suspension of

sentence and not on the trial court’s speculations).

       {¶ 23} Here, the trial judge let Yates and his counsel speak at the start of the

sentencing hearing. But after that, and before actually imposing sentence, the trial court

discussed the bondsperson’s report.       The court used that new information to challenge

Yates’s statement. The court then imposed sentence without letting Yates speak again. The

report therefore constituted new information presented at the hearing that was considered by

the trial court after Yates made his statement, but before sentence was imposed.

       {¶ 24} We know from the trial court’s comments that defense counsel had been in

contact with the court during Yates’s absence. Perhaps he was apprised of the bail-bond

information. We don’t know. If he had been made aware, then Yates and his counsel had an

opportunity for allocution at sentencing.       Yates explained that he missed the original

sentencing to care for his grandmother. The trial court then referred to the bail-bond report,

which apparently belied that excuse.

       {¶ 25} A sentencing court has broad discretion to allow the presentation of
                                                                                            8


information. “At the sentencing hearing, the court, before imposing sentence, shall consider

the record, any information presented at the hearing by any person pursuant to division (A) of

this section, * * * the presentence investigation report * * * and any victim impact statement *

* *.” R.C. 2929.19(B)(1). Such information may be considered as long as it is “relevant to

the imposition of sentence in the case.” R.C. 2929.19(A). Whatever the court considers for

sentencing should be either part of the presentence investigation or “presented” at the

sentencing hearing before allocution.       Consistent with this process, the victim-impact

statement statute specifically includes a right for the defendant to respond. “If the statement

includes new material facts, the court shall not rely on the new material facts unless it

continues the sentencing * * * or takes other appropriate action to allow the defendant * * * an

adequate opportunity to respond to the new material facts.” R.C. 2930.14(B). Thus, a

defendant has an opportunity to contradict new material facts arising from the victim-impact

statement, but only if the court is going to rely on them.

       {¶ 26} In this case, we do not know whether Yates or his counsel had an opportunity

to review the bond report prior to sentencing, and we do not know whether the trial court

considered the bond-report information for any purpose other than contradiction of Yates’s

excuse for his absence. Upon remand, the trial court should determine, in logical sequence,

whether it considered the bond report for purposes of sentencing, as opposed to Yates’s

excuse for his nonappearance. If the bond report was considered for sentencing, then the trial

court should determine whether Yates or his counsel was apprised of the bond-report

information before their opportunity for allocution. If not, then Yates should be given an

opportunity to respond to the bond-report information before he is resentenced.
                                                                                           9


       {¶ 27} We are concerned, also, that the report of the bail bondsperson, upon which the

trial court may have relied in imposing sentence, is not part of the record on appeal. In

reviewing the propriety of a trial court’s sentencing decision, an appellate court must have

before it the evidence and other information upon which the trial court relied in making its

sentencing decision. Upon remand, if the trial court wishes to take the report of the bail

bondsperson into consideration in determining a proper sentence, it should append it to, and

preserve it with, the presentence-investigation report.

       {¶ 28} Yates’s second assignment of error is sustained, in part.

                                                   IV

       {¶ 29} “The trial court erred when it failed to comply with O.R.C. 2929.14 by

sentencing defendant to greater than the shortest term authorized by law on a first felony

incarceration without making a finding that the shortest prison term would demean the

seriousness of the offense or would not adequately protect the public from future harm.”

       {¶ 30} Yates argues that the trial court did not make the findings required by R.C.

2929.14 when ordering a sentence above the minimum. But the Supreme Court of Ohio has

held that “[t]rial courts have full discretion to impose a prison sentence within the statutory

range and are no longer required to make findings or give their reasons for imposing * * *

more than the minimum sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855,

paragraph three of the syllabus.

       {¶ 31} The trial court stated on the record that it had considered the principles and

purposes of sentencing (per R.C. 2929.11) and the seriousness and recidivism factors (per
                                                                                        10


R.C. 2929.12) as well as the broken-plea condition and other factors in determining sentence.

The sentence imposed was within statutory guidelines.            Accordingly, Yates’s third

assignment of error is overruled.

                                                 V

       {¶ 32} Yates’s second assignment of error having been sustained in part, and his other

assignments of error having been overruled, his sentence is reversed, and this cause is

remanded for resentencing in accordance with this opinion.

                                                 .............

                                                                          Judgment reversed

                                                                        and cause remanded.



       FAIN, FROELICH, and HALL, JJ., concur.
