[Cite as State v. Clegg, 2014-Ohio-1331.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                       C.A. No.      13CA0055-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MATTHEW CLEGG                                       COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   13 CR 0126

                                  DECISION AND JOURNAL ENTRY

Dated: March 31, 2014



        HENSAL, Judge.

        {¶1}     Matthew Clegg appeals his sentence for possession of heroin from the Medina

County Court of Common Pleas. For the following reasons, this Court affirms.

                                               I.

        {¶2}     In 2013, Mr. Clegg pleaded no contest to possession of heroin, a violation of

Revised Code Section 2925.11(A). The trial court found him guilty of the offense. At his

sentencing hearing, the court recounted Mr. Clegg’s criminal history then gave his lawyer the

opportunity to speak. Mr. Clegg’s lawyer noted Mr. Clegg’s age, the programs he was taking at

the jail, his employment, and his willingness “to do whatever it takes to remain on probation.”

The court asked Mr. Clegg: “Is there anything else you want to tell me?” to which he replied:

“No.” The court then asked the prosecution if it had anything to add, and sentenced Mr. Clegg to

11 months in jail. Mr. Clegg has appealed his sentence, assigning as error that the trial court

denied him the right to allocution.
                                                2


                                               II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SPECIFICALLY
       INQUIRING AS TO WHETHER THE APPELLANT WANTED TO MAKE A
       STATEMENT REGARDING HIS POSSIBLE SENTENCE[ ] PRIOR TO THE
       IMPOSITION OF THE SENTENCE.

       {¶3}    Mr. Clegg argues that the trial court did not comply with Criminal Rule 32(A)(1),

depriving him of his right to allocution before sentencing. Rule 32(A)(1) provides that, “[a]t 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 or she wishes to make

a statement in his or her own behalf or present any information in mitigation of punishment.”

See also R.C. 2929.19(A) (providing that at the sentencing hearing, the court shall “ask the

offender whether the offender has anything to say * * *.”). The right of allocution is absolute

and cannot be forfeited. State v. Pendergrass, 9th Dist. Lorain No. 04CA008437, 2004-Ohio-

5688, ¶ 11.

       {¶4}    “[A] trial court complies with a defendant’s right of allocution when it personally

addresses the defendant and asks whether he has anything to say.” State v. Daniels, 9th Dist.

Summit No. 26406, 2013-Ohio-358, ¶ 14. “Judges should leave no room for doubt that the

defendant has been issued a personal invitation to speak prior to sentencing.” State v. Green, 90

Ohio St.3d 352, 359 (2000), quoting Green v. United States, 365 U.S. 301, 305 (1961). This

Court has explained, however, that, as long as “[i]t is clear from the record that the trial court

was talking to [the defendant] and not his attorney[,]” “nothing in Crim.R. 32 requires the trial

court to call a defendant by name.” State v. Vickers, 9th Dist. Lorain No. 01CA007928, 2002-

Ohio-3628, ¶ 34.
                                                3


       {¶5}   At the sentencing hearing, the trial court chronicled Mr. Clegg’s criminal history

then gave Mr. Clegg’s lawyer the opportunity to speak. Mr. Clegg’s lawyer stated:

       As you pointed out, Mr. Clegg does have an extensive criminal history, both as a
       juvenile and young adult. Mr. Clegg is twenty-one years old. During his time
       here on this case, he has availed himself of some of the programs available to him
       at the jail.

At that point, Mr. Clegg’s lawyer asked Mr. Clegg which programs he had been pursuing while

in the jail. Mr. Clegg answered “AP, substance abuse.” As the lawyer began to repeat that

information to the court, Mr. Clegg interjected: “But I’m not done with it.” The Court replied:

“I understand.” After Mr. Clegg’s lawyer continued explaining that “[Mr. Clegg] works as a

roofer, he works on his own, and he is willing to do whatever it takes to remain on probation,”

the Court asked: “Is there anything else you want to tell me?” Mr. Clegg answered: “No.”

       {¶6}   Although the trial court did not address Mr. Clegg by name and specifically ask

him whether “he * * * wishe[d] to make a statement in his * * * own behalf or present any

information in mitigation of punishment,” it was not required to use the rule’s exact language.

Crim.R. 32(A)(1); see Daniels, 2013-Ohio-358, at ¶ 13-14 (concluding that trial court complied

with Crim.R. 32(A)(1) when it asked defendant whether he “would * * * like to make any

statement regarding sentencing at this time?”); State v. Williams, 9th Dist. Summit No. 26014,

2012-Ohio-5873, ¶ 14 (concluding trial court complied with Crim.R. 32(A)(1) when it asked

Defendant whether there was “anything you want to say to the Court?”). The record indicates

that Mr. Clegg participated in his lawyer’s presentation of mitigating circumstances and that he

understood the court was speaking to him when it asked whether there was “anything else you

want to tell me?” Accordingly, because the court issued a personal invitation to Mr. Clegg to

speak before it imposed sentence, we conclude that it complied with Criminal Rule 32(A)(1).

Mr. Clegg’s assignment of error is overruled.
                                                 4


                                                III.

       {¶7}    The trial court complied with Criminal Rule 32(A)(1) when it sentenced Mr.

Clegg. The judgment of the Medina County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       JENNIFER HENSAL
                                                       FOR THE COURT

MOORE, J.
WHITMORE, J.
CONCUR.

APPEARANCES:

CONRAD G. OLSON, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and LAUREN M. HASE, Assistant Prosecuting
Attorney, for Appellee.
