[Cite as State v. Joseph, 2014-Ohio-2733.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                  :

                 Plaintiff-Appellee,            :                  Nos. 13AP-752
                                                                  (M.C. No. 13CRB-3826)
v.                                              :                    &     13AP-753
                                                                  (M.C. No. 13CRB-7020)
Jamigo I. Joseph,                               :
                                                             (REGULAR CALENDAR)
                 Defendant-Appellant.           :


                                         D E C I S I O N

                                      Rendered on June 24, 2014


                 Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, for
                 appellee.

                 Yeura Venters, Public Defender, and Timothy E. Pierce, for
                 appellant.

                      APPEALS from the Franklin County Municipal Court

CONNOR, J.
        {¶ 1} Defendant-appellant, Jamigo I. Joseph, appeals from a judgment of the
Franklin County Municipal Court, finding him guilty, pursuant to guilty plea, of two
charges of violating a protection order, in violation of R.C. 2919.27. Because (1) R.C.
2930.14 does not apply to this action, (2) the trial court did not deprive defendant of his
right to due process of law, and (3) the trial court did not deprive defendant of his rights
under Crim.R. 32(A), we affirm.
I.      FACTS AND PROCEDURAL HISTORY
        {¶ 2} On April 2, 2012, in case No. 12CRB-6987, defendant pled guilty to the
charge of violating a protection order, a misdemeanor of the first degree. The protected
person under the protection order was Angel Washington. The court sentenced
defendant to a 180-day prison term, but suspended 90 days of the prison term, and
Nos. 13AP-752 and 13AP-753                                                            2


placed defendant on one year of reporting probation. As part of his probation
requirements, defendant was obligated to complete a domestic violence counseling
class, to stay away from Washington, and not to incur any new charges.
      {¶ 3} On January 23, 2013, the court signed an entry extending defendant's
probation until April 2, 2014, or until defendant completed domestic violence
counseling. On February 19, 2013, defendant's probation officer informed the court that
defendant had violated his probation by incurring a new charge for violating a
protection order. On July 26, 2013, defendant's probation officer informed the court
that defendant had violated his probation by incurring another charge for violating a
protection order charge and because defendant was unsuccessfully terminated from his
domestic violence counseling for excessive absences. Defendant's probation officer
recommended that defendant's probation be revoked for these violations.
      {¶ 4} On February 17, 2013, under case No. 13CRB-3826, the state filed a
complaint against defendant for violating a protection order, a misdemeanor of the first
degree. The complaint stated that on January 30, 2013, defendant violated the terms of
a protection order by making contact with Washington via telephone. On March 24,
2013, under case No. 13CRB-7020, the state filed a complaint against defendant for
violating a protection order, a misdemeanor of the first degree. The complaint stated
that on March 23, 2013, defendant violated the terms of a protection order by making
contact with Washington via telephone. On August 5, 2013, the court held a joint
probation revocation hearing, plea hearing, and sentencing hearing on the three
separate cases.
      {¶ 5} At the hearing, the court noted that the attorneys had worked out a plea
bargain whereby defendant would plead guilty to the two new charges violating a
protection order, and the court would revoke defendant's probation in case No. 12CRB-
6987. The court engaged in a plea colloquy with the defendant and accepted defendant's
guilty plea to the two new charges.
      {¶ 6} The state noted that the prosecuting witness, Washington, was present in
court and had "provided the Court with a copy of the victim impact statement under
[R.C.] 2930.14." (Tr. 4.) The prosecutor asked for the maximum sentence on the
charges, noting that the two new charges were the "sixth and seventh violations of the
Nos. 13AP-752 and 13AP-753                                                                3


same [protection] order with the same prosecuting witness." (Tr. 4.) Defense counsel
noted that the parties had "discussed these cases off the record prior to going on the
record here today," and noted it was her understanding that the court was planning to
"review the victim impact statement as part of the Court's [sentencing] decision." (Tr. 5-
6.) Defense counsel objected "to the Court reviewing that without defense counsel being
permitted to see it first." (Tr. 6.) The prosecutor noted the state was requesting that the
victim's letter not be shared with the defendant "simply because of the sensitive nature
of what is contained in there." (Tr. 7.) The parties made the victim's letter an exhibit for
purposes of the instant appeal.
       {¶ 7} The court terminated defendant's probation in case No. 12CRB-6987,
sentenced defendant to a 154-day prison term for the charge in case No. 13CRB-3826
and to a 154-day prison term for the charge in case No. 13CRB-7020, and credited
defendant with 14 days for time served. The court ordered that defendant serve the two
prison terms consecutively. The court informed defendant that he did not give
defendant the maximum sentence of "365 [days] because you came right out and
admitted you did wrong." (Tr. 10.) However, the court informed defendant that he
wanted to give him "enough time so you know you are not to contact her any more or
there is more jail time coming to you." (Tr. 10.)
II.    ASSIGNMENTS OF ERROR

       {¶ 8} Defendant appeals, assigning the following errors:

              First Assignment of Error: During Appellant's
              sentencing hearing the lower court erred by relying on an ex
              parte communication from the victim in letter form
              containing new material facts relevant to punishment
              without continuing the sentencing or taking other
              appropriate action to allow Appellant and his attorney an
              adequate opportunity to respond to the new material facts.
              The court's reliance on this ex parte communication violated
              R.C. 2930.14(B) as well as Appellant's right to due process of
              law under the Fifth and Fourteenth Amendments of the
              United States Constitution and Article I, Section 10 of the
              Ohio Constitution.

              Second Assignment of Error: By denying Appellant
              access to the victim's letter or taking other appropriate
Nos. 13AP-752 and 13AP-753                                                                4


              actions affording Appellant and his attorney an opportunity
              to respond to its contents the lower court violated Rule 32 of
              the Ohio Rules of Criminal Procedure thereby implicating
              Appellant's right to allocution and to present mitigation in
              response to this ex parte evidence the court relied upon at
              sentencing.

III.   FIRST ASSIGNMENT OF ERROR – R.C. 2930.14 AND DUE PROCESS

       {¶ 9} Defendant's first assignment of error asserts the trial court violated R.C.
2930.14(B) in imposing defendant's sentence because the court relied on the victim's
letter which contained new material facts, but the court did not allow defendant an
adequate opportunity to respond to the new material facts. Defendant further asserts
that, by relying on the victim's letter in imposing sentence but not allowing defendant to
view the letter, the court violated defendant's right to due process of law. We note that it
is unclear from the record whether the trial court relied on the letter, or merely
considered it, in imposing sentence.
       {¶ 10} The state addresses defendant's substantive arguments regarding R.C.
2930.14(B), but then notes that the statute is inapplicable to the instant action as
defendant was sentenced for two misdemeanor violations of violating a protection
order. After reviewing the applicable statutes, we agree that R.C. 2930.14 does not apply
to this action. R.C. 2930.14 provides as follows:
              (A) Before imposing sentence upon, or entering an order of
              disposition for, a defendant or alleged juvenile offender for
              the commission of a crime or specified delinquent act, the
              court shall permit the victim of the crime or specified
              delinquent act to make a statement. The court may give
              copies of any written statement made by a victim to the
              defendant or alleged juvenile offender and defendant's or
              alleged juvenile offender's counsel and may give any written
              statement made by the defendant or alleged juvenile
              offender to the victim and the prosecutor. The court may
              redact any information contained in a written statement that
              the court determines is not relevant to and will not be relied
              upon in the sentencing or disposition decision. The written
              statement of the victim or of the defendant or alleged
              juvenile offender is confidential and is not a public record as
              used in section 149.43 of the Revised Code. Any person to
              whom a copy of a written statement was released by the
Nos. 13AP-752 and 13AP-753                                                                               5


                court shall return it to the court immediately following
                sentencing or disposition.

                (B) The court shall consider a victim's statement made under
                division (A) of this section along with other factors that the
                court is required to consider in imposing sentence or in
                determining the order of disposition. If the statement
                includes new material facts, the court shall not rely on the
                new material facts unless it continues the sentencing or
                dispositional proceeding or takes other appropriate action to
                allow the defendant or alleged juvenile offender an adequate
                opportunity to respond to the new material facts.

        {¶ 11} R.C. 2930.01 provides definitions for the terms used in Chapter 2930 of
the Revised Code. Notably, R.C. 2930.01(A) defines "crime" to mean any of the
following:
                (1) A felony;

                (2) A violation of section 2903.05, 2903.06, 2903.13,
                2903.21, 2903.211, 2903.22, 2907.06, 2919.25, or 2921.04 of
                the Revised Code, a violation of section 2903.07 of the
                Revised Code as it existed prior to March 23, 2000, or a
                violation of a substantially equivalent municipal ordinance;1

                (3) A violation of division (A) or (B) of section 4511.19,
                division (A) or (B) of section 1547.11, or division (A)(3) of
                section 4561.15 of the Revised Code or of a municipal
                ordinance substantially similar to any of those divisions that
                is the proximate cause of a vehicle, streetcar, trackless
                trolley, aquatic device, or aircraft accident in which the
                victim receives injuries for which the victim receives medical
                treatment either at the scene of the accident by emergency
                medical services personnel or at a hospital, ambulatory care
                facility, physician's office, specialist's office, or other medical
                care facility.

                (4) A motor vehicle accident to which both of the following
                apply:




1 The cited code sections are for the crimes of negligent homicide, aggravated vehicular homicide, assault,

aggravated menacing, menacing by stalking, menacing, sexual imposition, domestic violence,
intimidation, and vehicular homicide as it existed prior to March 23, 2000.
Nos. 13AP-752 and 13AP-753                                                               6


                (a) The motor vehicle accident is caused by a violation of a
                provision of the Revised Code that is a misdemeanor of the
                first degree or higher.

                (b) As a result of the motor vehicle accident, the victim
                receives injuries for which the victim receives medical
                treatment either at the scene of the accident by emergency
                medical services personnel or at a hospital, ambulatory care
                facility, physician's office, specialist's office, or other medical
                care facility.

          {¶ 12} R.C. 2930.01(H) defines a "victim" as "[a] person who is identified as the
victim of a crime * * * in a police report or in a complaint." Thus, as these definitions
demonstrate, in order to be the "victim of a crime" entitled to make a statement under
R.C. 2930.14(A), the crime at issue must be a felony or one of the crimes listed in R.C.
2930.01(A)(2) through (4). Defendant was sentenced on two different charges of
violating a protection order, in violation of R.C. 2919.27, and both charges were
misdemeanors of the first degree. As R.C. 2919.27 is not listed in R.C. 2930.14(A), and
the charges were misdemeanor offenses, R.C. 2930.14 did not apply to the instant
action.
          {¶ 13} Because defendant was sentenced for two misdemeanor violations, the
misdemeanor sentencing statutes, R.C. 2929.21 and 2929.22, applied to defendant's
sentencing hearing. R.C. 2929.21 provides that, "[a] court that sentences an offender for
a misdemeanor * * * shall be guided by the overriding purposes of misdemeanor
sentencing. The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender." R.C.
2929.21(A). R.C. 2929.22 provides, in pertinent part, that "[a] sentencing court shall
consider any relevant oral or written statement made by the victim * * * regarding
sentencing for a misdemeanor. This division does not create any rights to notice other
than those rights authorized by Chapter 2930 of the Revised Code." R.C. 2929.22(D)(1).
          {¶ 14} Pursuant to R.C. 2929.22(D)(1), the trial court was obligated to consider
the victim's written statement, and defendant had no right to notice of the statement,
unless he had a right to such notice under Chapter 2930 of the Revised Code. Because a
misdemeanor offense for violating a protection order is not a crime to which Chapter
Nos. 13AP-752 and 13AP-753                                                               7


2930 of the Revised Code applies, defendant did not have a statutory right to notice of
the victim's letter. Compare State v. Beachy, 9th Dist. No. 02CA0020, 2003-Ohio-1285,
¶ 5.
       {¶ 15} Defendant further asserts that the trial court violated his right to due
process of law when the court refused to let defendant see the victim's letter before
imposing sentence. Defendant cites to United States v. Hayes, 171 F.3d 389 (6th
Cir.1999) and United States v. Hamad, 495 F.3d 241 (6th Cir.2007) for the proposition
that "a sentencing court's failure to allow the defense access to victim impact letters it
relies upon when imposing punishment has been deemed violative of due process."
(Appellant's brief, 11.) The Sixth Circuit, however, reviewed and distinguished both
Hayes and Hamad in Stewart v. Erwin, 503 F.3d 488 (6th Cir.2007). In Stewart, the
defendant asserted that he was denied due process of law because he was not permitted
to review the victim impact statements the trial court had relied on to justify Stewart's
prison term. The court in Stewart held that there is "no clearly established federal
constitutional right to full disclosure of all information used by a trial judge in
determining a defendant's sentence," but further held that there is "a clearly established
federal due process protection against a trial court's reliance on materially false
information at sentencing." Id. at 491. Thus, pursuant to Stewart, defendant did not
have a due process right "to review, rebut, and explain all of the information relied upon
by the state trial court in determining his sentence," as due process only protects against
"sentencing determination[s] that rest in part upon materially false information." Id. at
498.
       {¶ 16} There is nothing in the record to indicate that the trial court relied on the
statements contained in the victim's letter when imposing defendant's sentence, or that
the statements in the letter were materially false. See State v. Piesciuk, 12th Dist. No.
CA2007-04-086, 2008-Ohio-4054, ¶ 33 (finding no evidence of a due process violation,
as there was "no indication that the trial court relied on the victim impact statement in
making its restitution order as to the victims subject to the remand, nor that any
information contained in the victim impact statement was materially false"); State v.
Smith, 2d Dist. No. 21463, 2008-Ohio-6330, ¶ 66 (noting that pursuant to Stewart v.
Erwin, "[i]n order to establish such a due process violation based on the use of false
Nos. 13AP-752 and 13AP-753                                                                 8


information in sentencing, Smith must show that the information in question was
materially false and that the trial court relied on it"); State v. Bayless, 4 Ohio App.3d
301, 302 (9th Dist.1982) (finding no due process violation as there was "no evidence
that materially false or clearly erroneous information [was] in * * * the victim impact
statement, or that such false or erroneous information was relied upon"). Moreover,
although inapplicable here, as R.C. 2930.14(A) and R.C. 2947.051(C), regarding felony
sentencing, specifically vest trial courts with discretion to determine whether to disclose
a victim impact statement to a defendant, we would be reluctant to find that a court's
proper exercise of such discretion amounted to a due process violation. See State v.
Stewart, 149 Ohio App.3d 1, 2002-Ohio-4124, ¶ 8 (12th Dist.) (where the trial court
refused to let the defendant view victim impact statements before the court imposed
sentence, the court noted that "[i]n light of the trial court's sound discretion as expressly
granted by R.C. 2947.051 and based upon the record before us, we find no violation of
due process"); Piesciuk at ¶ 32 (noting that pursuant to R.C. 2947.051(C), it was "within
the trial court's discretion whether to make a victim impact statement available to a
defendant," and finding no due process violation under Stewart v. Erwin). Compare
State v. Hufnagel, 7th Dist. No. 12 MA 195, 2014-Ohio-1799, ¶ 23.
          {¶ 17} Defendant has failed to establish that the trial court violated a statute or
deprived defendant of due process of law when it did not allow defendant to view the
victim's letter prior to imposing sentence. Based on the foregoing, defendant's first
assignment of error is overruled.
III.      SECOND ASSIGNMENT OF ERROR – CRIM.R. 32
          {¶ 18} Defendant's second assignment of error asserts that the trial court violated
defendant's rights under Crim.R. 32(A) by denying defendant access to the victim's
letter.
          {¶ 19} Crim.R. 32(A)(1) governs a defendant's right to allocution. Pursuant to
Crim.R. 32(A)(1), before imposing sentence, the court must "[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." Crim.R. 32(A)(1). The "Crim.R. 32 inquiry is
much more that an empty ritual: it represents a defendant's last opportunity to plead his
Nos. 13AP-752 and 13AP-753                                                             9


case or express remorse." State v. Green, 90 Ohio St.3d 352, 359-60 (2000). The
requirement of allocution is fulfilled when the court's conduct clearly shows the
defendant and his counsel each had a right to make a statement before sentence is
imposed. Defiance v. Cannon, 70 Ohio App.3d 821, 828 (3d Dist.1990). "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 error." State v.
Campbell, 90 Ohio St.3d 320, 326 (2000).
       {¶ 20} The record demonstrates that defense counsel presented mitigating
evidence, noting that the court was already "aware of the nature of the alleged contact,"
and that the court was "aware of defense's position, which is, the prosecuting witness
has also been having contact and violating said order." (Tr. 5.) The trial court also
addressed the defendant and asked him if he wished to make a statement, and
defendant said no. Accordingly, we find that the trial court complied with Crim.R.
32(A). Because defendant did not have a statutory or due process right to view the
victim's letter, the trial court did not violate defendant's right to allocution under
Crim.R. 32(A) when the court sentenced defendant without allowing him to view the
victim's letter.
       {¶ 21} Based on the foregoing, defendant's second assignment of error is
overruled.
IV.    DISPOSITION
       {¶ 22} Having overruled defendant's first and second assignments of error, we
affirm the judgment of the Franklin County Municipal Court.
                                                                    Judgment affirmed.

                   SADLER, P.J. and LUPER SCHUSTER, J., concur.
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