      [Cite as State v. Osume, 2015-Ohio-3850.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NO. C-140390
                                                      TRIAL NO. B-1200855
     Plaintiff-Appellee,                          :

      vs.                                         :        O P I N I O N.

SANI OSUME,                                       :

     Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and
                           Cause Remanded
Date of Judgment Entry on Appeal: September 23, 2015



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Schuh & Goldberg, LLP., and Brian T. Goldberg, for Defendant-Appellant.


Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



CUNNINGHAM, Presiding Judge.
       {¶1}     Defendant-appellant Sani Osume challenges the trial court’s

judgment revoking community control and imposing a 15-month sentence of

imprisonment. Because the trial court did not afford Osume his right of allocution

before imposing sentence, we reverse the sentence, and remand the cause to the trial

court for resentencing.

       {¶2}     In August 2012, Osume entered a guilty plea to a charge of receiving

a stolen firearm, punishable as a fourth-degree felony. The trial court accepted the

plea and sentenced Osume to a one-year term of community control with the

condition of intensive supervision by the probation department. At the sentencing

hearing, the trial court notified Osume that if he violated the terms of community

control, the court would impose an 18-month prison term.

       {¶3}     In response to a question from Osume’s counsel about restrictions on

Osume’s possession of firearms, the trial court stated:

                No, he is charged with receiving. He is not charged with a

         disability offense. I am not suggesting that I am precluding him from

         possessing a firearm in the future, unless he gets a felony drug

         conviction or a crime of violence, which he doesn’t have.

                He is able to possess a firearm legally; he just can’t carry it

         unless he has a CCW permit, and you can’t get one while you are on

         probation or community control. But he is allowed to have a firearm

         under the Constitution, and it’s not an offense.

       {¶4}     In February 2013, in response to a community-control violation,

Osume’s community-control sanction was continued until August 2014. On May

29, 2014, during a visit to Osume’s residence, probation officers found loaded

weapons, marijuana, and other drug paraphernalia. As a result, community-control




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violations were filed against Osume. Probation officers alleged that Osume had failed to

conduct himself properly by possessing firearms, marijuana, and drug paraphernalia, in

violation of Rule 1. They claimed that Osume had violated Rule 4 by testing positive for

marijuana and by failing to appear for two urinalysis screenings. They also alleged that

Osume had violated Rule 8 by failing to appear for probation office visits.

       {¶5}     Without objection by either party, the trial court conducted the probable-

cause and community-control-revocation hearings in a single proceeding. At the joint

hearing, Osume’s mother, his probation officer, and Osume himself offered

statements, though only Osume’s mother was administered an oath before speaking.

At the completion of the proceeding, the trial court found Osume in violation of

Rules 1 and 4 of his community control. The court refused to find a violation of Rule

8.

       {¶6}     Immediately after finding the violations, the trial court declared,

“And I’m going to sentence you in the following manner.” Addressing Osume’s trial

counsel, the court asked, “Anything you’d, like to say * * * before I move forward

with sentence?” In mitigation, Osume’s counsel offered that Osume was employed

and had attempted to pay the ordered costs and fines.

       {¶7}     The trial court then inquired, “Anything from the State? * * *

Anything from probation?” Neither chose to make a comment. Without affording

Osume an opportunity to speak on his own behalf, the trial court imposed a 15-

month term of imprisonment. Osume appealed.

       {¶8}     In his first assignment of error, Osume asserts that the trial court

erred in finding that he had violated the terms of his community control. He argues

that the state failed to adduce sufficient evidence of violations.            First, Osume

maintains that he could not have been violated for being found with firearms in his

residence when the trial court, at the original sentencing, had stated that he was

permitted to possess firearms. Next, Osume maintains that the state offered only



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“bare bones testimony” that marijuana had been found at his residence, and that he

had tested positive for marijuana and had missed two urinalysis screenings. We

disagree.

       {¶9}      In order to establish a community-control violation, the state must

present substantial evidence that the defendant violated the terms of his community

control. State v. McCants, 1st Dist. Hamilton No. C-120725, 2013-Ohio-2646, ¶ 11;

see State v. Dockery, 187 Ohio App.3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, ¶ 10

(1st Dist.). “Substantial evidence has been defined as being more than a scintilla of

evidence, but less than a preponderance.” McCants at ¶ 11.

       {¶10}     Here, the state presented the unrebutted testimony of Osume’s

probation officer that an inspection of Osume’s residence uncovered loaded

firearms, including a submachine gun, plus three separate bags of marijuana and

drug paraphernalia. The probation officer also testified that Osume had tested positive

for marijuana in his urine in April 2014, and had failed to appear for two scheduled

urinalysis screenings.

       {¶11}     The state maintains that the trial court’s 2012 remark concerning firearm

possession was simply the court’s acknowledgement that Osume had not been convicted

of a disability offense. Thus its apparent grant of permission to possess firearms referred

only to a time after the successful completion of the community-control sanction. But we

need not discern the import of the trial court’s remark. Even if Osume had been

permitted to possess firearms during community control, the state adduced substantial

evidence that Osume had violated Rule 1 by possessing marijuana and drug

paraphernalia.

       {¶12}     Osume admitted to testing positive for marijuana, but offered an

explanation for the test results. The trial court was entitled to disregard Osume’s

statement that he had tested positive only because he had been in proximity to others




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smoking the illegal substance. Moreover, Osume did not rebut the probation officer’s

testimony that Osume had failed to submit to scheduled urinalysis on two occasions.

       {¶13}    Therefore, the trial court’s finding that Osume had violated the terms of

his community control was supported by substantial evidence, and will not be disturbed

on appeal. See McCants, 1st Dist. Hamilton No. C-120725, 2013-Ohio-2646, at ¶ 11;

see also Dockery, 187 Ohio App.3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, at ¶ 10.

The first assignment of error is overruled.

       {¶14}    In his second assignment of error, Osume contends that he was denied

due process of law when witnesses called at the joint hearing were not sworn in prior to

testifying, in violation of Evid.R. 603. Osume argues that while his mother had testified

under oath, neither he nor his probation officer had been sworn in before making

statements. The state agrees that it was error for unsworn testimony to be admitted as

evidence, but that any error was forfeited by Osume’s failure to bring the error to the trial

court’s attention.

       {¶15}    A community-control revocation hearing is not a stage of the criminal

prosecution. See Dockery at ¶ 10. It is an informal hearing to which the rules of evidence

“do not apply.” Evid.R. 101(C)(3); see McCants at ¶ 14. But the minimal demands of

due process do require that a defendant be afforded the right to confront and cross-

examine adverse witnesses. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36

L.Ed.2d 656 (1973); see also McCants at ¶ 14. Some courts have argued that the right to

confront and cross-examine witnesses “technically cannot occur absent formally

swearing in those witnesses.” E.g., State v. Bailey, 7th Dist. Mahoning No. 11 MA 3,

2012-Ohio-1694, ¶ 20.

       {¶16}    But we have long held that the due-process requirements of a probation-

or community-control-violation proceeding may be forfeited if the defendant fails to

object timely. See State v. Henderson, 62 Ohio App.3d 848, 853, 577 N.E.2d 710 (1st

Dist.1989); see State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d



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306, ¶ 23 (describing the failure to preserve an objection as “forfeiture” subject to

review for plain error under Crim.R. 52(B)). This is particularly the case where the

failure to administer an oath can easily be corrected if timely brought to the trial court’s

attention. See Bailey at ¶ 23; see also State v. Norman, 137 Ohio App.3d 184, 198,

738 N.E.2d 403 (1st Dist.1999) (applying forfeiture to the admission of unsworn

testimony in a criminal prosecution).

       {¶17}     Here, Osume failed to request that he and the probation officer be

sworn in before testifying. He failed to object when the probation officer responded

to questions about the violations without an oath being administered. Thus, he

forfeited any error save plain error. See Henderson at 853; see also Bailey at ¶ 24.

Since Osume had the opportunity to present his side of the story and to question the

probation officer, we hold that the outcome of the proceeding would not clearly have

been otherwise but for the omission by the court. No manifest miscarriage of justice

occurred which would have mandated reversal of the revocation findings.                 See

Crim.R. 52(B); see also State v. Rogers, Slip Opinion No. 2015-Ohio-2459, ¶ 3. The

second assignment of error is overruled.

       {¶18}    In his final assignment of error, Osume asserts that the trial court erred

by denying him the right of allocution, after it found him in violation of the terms of

community control, and before it imposed the sanction for those violations. The state

does not argue that Osume had no right of allocution when he was sentenced for a

community-control violation.        Instead it maintains that since Osume had multiple

opportunities to speak before the trial court’s violation determination, he was effectively

provided the right of allocution.

       {¶19}    The Ohio Supreme Court has held that “[t]rial courts must painstakingly

adhere to Crim.R. 32, guaranteeing the right of allocution.” State v. Green, 90 Ohio St.3d

352, 359-360, 738 N.E.2d 1208 (2000).        When imposing sentence, the trial court must

address the defendant personally and ask whether he wishes to make a statement in his



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own behalf or present any information in mitigation of punishment.              See Crim.R.

32(A)(1); see also R.C. 2929.19(A).

       {¶20}    Last year, we held that a defendant being sentenced to prison

following a community-control violation has a right to allocution under R.C.

2929.19(A)(1) and Crim.R. 32(A)(1). State v. McAfee, 1st Dist. Hamilton No. C-130567,

2014-Ohio-1639, ¶ 14. We rejected the contention that a defendant ought not to be

afforded a “second” right to allocution since no new sentence was being imposed,

and the trial court was simply reinstating the prison term that the defendant had

been warned of at the original sentencing. Id.

       {¶21}    Instead, we followed the Supreme Court’s determination, in State v.

Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, that the sentencing

hearing conducted after finding a community-control violation constitutes “a second

sentencing hearing[,] [at which] the court sentences the offender anew and must comply

with the relevant sentencing statutes.” McAfee at ¶ 14. This court has long acknowledged

that the sanctions of imprisonment and community control are mutually exclusive

alternatives. In State v. Smith, 1st Dist. Hamilton No. C-980887, 1999 Ohio App. LEXIS

4311, *13 (Sept. 17, 1999), we held that that the felony-sentencing statutes make no

provision for the suspension, then imposition, of a prison term, upon the defendant’s

violation of community control. Compare R.C. 2929.25(A)(1)(b) (for misdemeanor

offenses, a trial court that imposes a jail term may suspend all or part of the jail term and

place the offender under a community-control sanction). The Ohio Supreme Court has

recently reiterated that the General Assembly intended prison and community-control

sanctions as alternative sentences for a felony offense, and that a trial court must impose

either a prison term or a community-control sanction absent an express exception. State

v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31.

       {¶22}    Thus, following a community-control violation, if a trial court imposes

sentence without first asking the defendant if he wants to exercise the right of allocution,



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                      OHIO FIRST DISTRICT COURT OF APPEALS



resentencing is required unless the error is invited error or harmless. See McAfee at ¶ 14;

see also State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-2171, ¶ 8; State v.

Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000), paragraph three of the syllabus.

        {¶23}    The right of allocution belongs to the defendant himself. See State v.

Thompson, 1st Dist. Hamilton No. C-120516, 2013-Ohio-1981, ¶ 5. Its purpose is “to

permit the defendant to speak on his own behalf or present any information in mitigation

of punishment.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶

85. Therefore, when imposing sentence, it is not enough for the trial court to simply give

defense counsel the opportunity to speak on the defendant’s behalf. See Green, 90 Ohio

St.3d at 359-360, 738 N.E.2d 1208.

        {¶24}    Here, the trial court failed to address Osume personally and ask if he

wished to make a statement on his own behalf or present any information in mitigation

of punishment before imposing sentence. This was error, and the unusual circumstances

that would deem the error harmless are not present in this case. Compare State v.

Reynolds, 80 Ohio St.3d 670, 684, 687 N.E.2d 1358 (1998) (holding harmless a trial

court’s denial of allocution where the defendant had made an unsworn statement in the

penalty phase and had sent a letter to the trial court, and where defense counsel had

made a statement on behalf of the defendant). Since Osume was not afforded an

opportunity to speak in mitigation before the trial court imposed his sentence, we sustain

the third assignment of error. See State v. Jackson, 1st Dist. Hamilton No. C-140384,

2015-Ohio-2171, ¶ 13.

        {¶25}    We, therefore, reverse Osume’s sentence, and we remand the cause to the

trial court for resentencing in accordance with this opinion and the law. See Campbell,

90 Ohio St.3d 320, 738 N.E.2d 1178, at paragraph three of the syllabus. We affirm the

trial court's judgment in all other respects.

                        Judgment affirmed in part, reversed in part, and cause remanded.




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DEWINE, J., concurs.
MOCK, J., concurs in part and dissents in part.
MOCK, J., concurring in part and dissenting in part.

       {¶26}    I join with the majority’s resolution of the first two assignments of error.

I disagree, however, with the resolution of the third assignment of error for the reason set

forth in my dissent in State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-

2171. The right of allocution does not apply when a defendant is sentenced for a

community-control violation. Id. at ¶ 24. Therefore, I respectfully dissent in part, and I

would affirm the trial court’s judgment.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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