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State v. Robenolt11/29/2005
JUDGMENT: Affirmed in part. Reversed and Remanded in part.
Sentence Vacated.
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro
{ } Appellant John Robenolt challenges his three-day jail sentence for leaving the scene of an accident. On review, the record reveals that the trial court did not allow Appellant to speak at sentencing. There are no other apparent errors in the trial court proceedings. The sentence of the Youngstown Municipal Court is hereby reversed and the case remanded for resentencing.
{ } Because the state did not respond to this appeal, this Court may accept Appellant's presentation of the facts and issues as correct, and reverse the judgment if it is reasonable to do so. App.R. 18(C).
{ } According to Appellant, on April 2, 2004, he was driving southbound on South Glenellen Avenue on the west side of Youngstown, when he slid off the road and hit a fire hydrant. He left the scene and walked home. The hydrant was not damaged, and no other persons or vehicles were involved in the accident. He went to the police on April 5, 2004, and was cited for failure to control and for leaving the scene of an accident. On April 6, 2004, he was given appointed counsel and entered a plea of not guilty.
{ } On May 7, 2004, Appellant entered a Crim.R. 11 plea agreement. He agreed to plead no contest to one count of leaving the scene of an accident, in violation of R.C. §4549.02, a first degree misdemeanor. The prosecutor dismissed the failure to control charge. The prosecutor agreed to recommend a sentence of one year of community control sanctions with monthly reporting, a $100 fine, and court costs. The plea was approved and accepted by the trial court. The court ordered a pre-sentence investigation ("PSI") to be performed.
{ } Sentencing took place on June 2, 2004. The PSI noted that Appellant had pleaded guilty to three DUI's in 1989 and 1991; that Appellant was cited for failure to yield in 2003; that Appellant was 34 years old; that he completed the 9th grade and had no GED; that he suffered brain damage from a prior car accident; that he does not currently use drugs or alcohol; and that he has no financial assets, is unemployed, and receives $454 per month in Supplemental Security Income ("SSI") payments. The PSI recommended three days in jail, and recommended that Appellant obtain his GED.
{ } At sentencing, Appellant's attorney explained that Appellant had been injured in 1995 when he was struck by a vehicle. (Tr., p. 3.) Appellant is now permanently brain-damaged and receives SSI for total disability.
{ } The trial court rejected the prosecutor's recommendation of no jail time. The court imposed a three-day jail sentence, along with other community control sanctions, a fine, and court costs. Appellant filed this timely appeal on June 3, 2004.
{ } Appellant's first assignment of error states:
{ } "THE TRIAL COURT COMMITTED ERROR IN FAILING TO PERMIT THE DEFENDANT THE RIGHT OF ALLOCUTION."
{ } Crim.R. 32(A)(1) states:
{ } "(A) Imposition of sentence. Sentence shall be imposed without unnecessary delay. Pending sentence, the court may commit the defendant or continue or alter the bail. At the time of imposing sentence, the court shall do all of the following:
{ } "(1) Afford 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." (Emphasis added.)
{ } The Ohio Supreme Court has held that, " n a case in which the
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