         [Cite as State v. Thompson, 2013-Ohio-1981.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :       APPEAL NO. C-120516
                                                        TRIAL NO. 12CRB-11190
        Plaintiff-Appellee,                      :
                                                            O P I N I O N.
  vs.                                            :

DWIGHT THOMPSON,                                 :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 17, 2013

John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Brian F. Leurck,
Assistant City Prosecutor, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




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




D E W INE , Judge.

       {¶1}    Dwight Thompson challenges his conviction for disorderly conduct,

asserting that the trial court did not afford him his right of allocution. We agree that

the trial court erred when it failed to address Mr. Thompson personally and ask him

if he had anything to say in mitigation. We conclude, however, that under the facts

of this case the error was harmless.

       {¶2}    Mr. Thompson was charged with assaulting Shaunia Hughes, who, at

the time of the offense, was pregnant with his child. He pleaded guilty to a reduced

charge of disorderly conduct. The trial court accepted the guilty plea, and then

addressed Ms. Hughes about what had happened. After Ms. Hughes gave her side of

the story, the court asked, “Mitigation?”        Mr. Thompson’s counsel spoke in

mitigation on Mr. Thompson’s behalf. Following counsel’s statement, the trial court

had an informal colloquy with Ms. Hughes and then asked Mr. Thompson why he

committed the offense.

       {¶3}    After a brief discussion with Mr. Thompson, the court engaged Ms.

Hughes and her mother in a conversation. Next, the court addressed Mr. Thompson,

saying, “I’m getting ready to lock you up. I’m on the verge of locking you up,” and

then indicated the sentence it expected to impose. Mr. Thompson then asked and

was permitted to address the court. He claimed that he was not the only person who

had done damage, and that Ms. Hughes had flattened his tires. He also assured the

court that he would have no more involvement with Ms. Hughes, but that he would

take care of his unborn child. Thereafter, the court imposed the sentence that it had

previously indicated, and granted Mr. Thompson’s request for a stay of the jail time

for a week.




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       {¶4}    In his sole assignment of error, Mr. Thompson asserts that the trial

court erred by denying him the right of allocution.        “At the time of imposing

sentence, the court shall * * * [a]fford counsel an opportunity to speak on behalf of

the defendant and address the defendant personally and ask if he * * * wishes to

make a statement in his * * * own behalf or present any information in mitigation of

punishment.” Crim.R. 32(A)(1).

       {¶5}    The failure to afford a defendant his right of allocution is not a

constitutional error. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d

417 (1962). It is, however, a right that is firmly rooted in the common law. Green v.

United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). In Green, the

United States Supreme Court declined to reverse a conviction in which it was not

clear from the record whether the judge’s statement—“did you want to say

something”—was directed to the defendant or to counsel.              Id. at 304-305.

Nonetheless, the court announced that “[t]rial judges before sentencing should, as a

matter of good judicial administration, unambiguously address themselves to the

defendant” and “[h]ereafter trial judges should leave no doubt that the defendant has

been issued a personal invitation to speak prior to sentencing.” Id. at 305.

       {¶6}    Similarly in State v. Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d

1208 (2000), the Ohio Supreme Court vacated a defendant’s sentence in a capital

case because it found that the trial court erred by not explicitly asking the defendant

“in an inquiry directed only to him” whether he had anything to say. “A 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,” explained the court. Id.

       {¶7}    In the case at bar, the trial court’s general statement “mitigation” was

not sufficient; the court should have addressed Mr. Thompson personally to ask



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whether he wished to exercise his right of allocution. We conclude this was error,

and now consider whether the error was harmless.

       {¶8}    The Ohio Supreme Court consistently has reiterated that the failure to

afford the right of allocution may be harmless. In another capital case decided the

same day as Green, the court explained: “We further hold that 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.” State v. Campbell, 90 Ohio

St.3d 320, 326, 738 N.E.2d 1178 (2000). See State v. Reynolds, 80 Ohio St.3d 670,

687 N.E.2d 1358 (1998).

       {¶9}    The question of what constitutes harmless error in the context of the

right to allocution, however, is open to some question. This court has held harmless

a trial court’s failure to afford the appellant his right of allocution when the appellant

did not indicate on appeal what he would have said in mitigation had he been given

the opportunity by the trial court. State v. Mynhier, 146 Ohio App.3d 217, 223, 765

N.E.2d 917 (1st Dist.2001), citing State v. McBride, 2d Dist. No. 18016, 2001 Ohio

App. LEXIS 220 (Jan. 26, 2001), overruled on other grounds, State v. Giles, 1st Dist.

No. C-010582, 2002-Ohio-3297. As in Mynhier, Mr. Thompson did not present to

us what mitigation he would have offered below.

       {¶10}   Our decision in Mynhier, however, has not been followed in other

Ohio appellate districts.     The Second Appellate District, whose case we cited in

support of our conclusion in Mynhier, has since disavowed its holding. State v.

Cowen, 167 Ohio App.3d 233, 2006-Ohio-3191, 854 N.E.2d 579, ¶ 14-17 (2d Dist.).

The Fourth Appellate District likewise has declined to follow Mynhier, pointing out

that “it is unfair to judge a defendant’s mitigation plea on paper when he is entitled



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to make that plea in person to the court that is sentencing him.” State v. Spradlin,

4th Dist. No. 04CA727, 2005-Ohio-4704, ¶ 10. Further, how an appellant could

present information on appeal about what he would have said in mitigation has been

questioned. “On direct appeal, an appellant is limited to making arguments based on

the actual record, and cannot present new evidence for consideration.” State v.

Land, 7th Dist. No. 00-C.A.-261, 2002-Ohio-1531, ¶ 21. See State v. Brown, 166

Ohio App.3d 252, 2006-Ohio-1796, 850 N.E.2d 116, ¶ 11 (11th Dist.) (also declining

to adopt the rule established in Mynhier).       Although the reasoning of the other

districts is persuasive, we need not decide now whether we will continue to adhere to

our holding in Mynhier because, under the totality of the circumstances in this case,

we conclude that the court’s error was harmless.

       {¶11}    In Reynolds, the Ohio Supreme Court addressed the effect of the

trial court’s failure to afford a defendant his right of allocution before sentencing him

to the death penalty. Reynolds, 80 Ohio St.3d at 683-684, 687 N.E.2d 1358. In that

case, the trial court had filed its sentencing decision before the hearing was held. Id.

at 683. The prosecutor and defense counsel then were invited to address the court

on the defendant’s aggravated murder count, but the court did not invite the

defendant to speak during the sentencing hearing. Id. On appeal, the Supreme

Court held that the trial court’s failure to strictly comply with Crim.R. 32(A) was

harmless because the defendant had made an unsworn statement during the penalty

phase of the trial, had sent a letter to the court, and had had counsel make a

statement on his behalf. Id. at 684. The court acknowledged that the trial court

should have waited to file its sentencing decision until the hearing was complete, but

concluded that the defendant was not prejudiced by the early filing. “Had new




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evidence or information been presented during the sentencing hearing, the trial

court could have modified its sentencing order.” Id.

       {¶12}   Here, the court addressed Mr. Thompson to ask the reason for his

actions prior to making the statement about his expected sentence.        Further, Mr.

Thompson asked for and was given a further opportunity to speak to the court before

the court entered judgment.     Even though the court had indicated its anticipated

sentence, the hearing continued. The court heard from the defendant and made its

final pronouncement of sentence after the defendant spoke. As recognized by the

Supreme Court in Reynolds, had the court been swayed by Mr. Thompson’s

comments, it could have changed the sentence it had previously indicated. Reading

the record as a whole, we are satisfied that Mr. Thompson had a chance to make his

case in mitigation to the trial judge, and that he did not suffer prejudice despite the

less than orderly nature of the plea colloquy conducted by trial judge.

       {¶13}   We conclude, therefore, that in this case the court’s failure to comply

strictly with Crim.R. 32(A) was harmless. See Cleveland v Gholston, 8th Dist. No.

96592, 2011-Ohio-6164. The sole assignment of error is overruled, and we affirm the

judgment of the trial court.

                                                                   Judgment affirmed.

D INKELACKER , P.J., and F ISCHER , J., concur.


Please note:

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




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