State v. Neff

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[Cite as State v. Neff, 2020-Ohio-4818.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY STATE OF OHIO, Plaintiff-Appellee, v. KAREN SUE ELLEN NEFF, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 19 BE 0007 Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 18 CR 160 BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges. JUDGMENT: Affirmed. Atty. Dan Fry, Belmont County Prosecuting Attorney and J. Kevin Flanagan, Assistant Prosecuting Attorney, 147-A West Main Street, St. Clairsville, Ohio 43950, for PlaintiffAppellee Atty. Damian A. Billak, Creekside Professional Centre, Bldg. F, Suite 100, 6715 Tippecanoe Road, Canfield, Ohio 44406, for Defendant-Appellant. –2– Dated: September 28, 2020 WAITE, P.J. {¶1} Appellant Karen Sue Ellen Neff appeals a February 11, 2019 Belmont County Common Pleas Court judgment entry convicting her of several theft-related offenses. Appellant argues that the trial court failed to allow her to present statements from family and friends on her behalf at the sentencing hearing, thus denied her the right to full allocution. For the reasons provided, Appellant’s argument is without merit and the judgment of the trial court is affirmed. Factual and Procedural History {¶2} The charges stem from Appellant and her codefendant/husband Keith Dwayne Baratie’s term as board members of the Belmont County Memorial Park Cemetery. Both Appellant and Baratie served on the board with several other members of the community. As time passed, the remaining members either passed away or resigned from the board, leaving Appellant and Baratie to manage the cemetery. Efforts to add other members apparently failed. {¶3} Appellant and Baratie were approached by Paloma, an oil and gas company, about leasing the land for purposes of drilling for oil and gas. Appellant, Baratie, and Paloma entered into an oil and gas lease which provided a $282,240 signing bonus. Appellant and Baratie placed the money into their personal bank accounts and spent most of the money over the course of several years on personal purchases. {¶4} On August 2, 2018, Appellant was indicted on one count of forgery, a felony of the third degree in violation of R.C. 2913.31(A)(2), (C)(1)(b)(ii); aggravated theft, a Case No. 19 BE 0007 –3– felony of the third degree in violation of R.C. 2913.02(A)(3), (B),(2); and securing a writing by deception, a felony of the third degree in violation of R.C. 2913.43(A), (B)(2). {¶5} On January 15, 2019, a jury trial commenced. Baratie was tried in a separate trial. A jury found Appellant guilty of all offenses as charged. On February 4, 2019, a sentencing hearing was held. The trial court sentenced Appellant to twenty-four months of incarceration for forgery, twenty-four months for aggravated theft, and thirty months for securing a writing by deception. The trial court ordered the forgery and aggravated theft counts to run concurrently and consecutive to the securing a writing count, for an aggregate total of fifty-four months of incarceration. Appellant received credit for twenty days served. The court also ordered restitution in the amount of $282,000. We note that Appellant was charged with the full amount of restitution and it is unclear whether Baratie was ordered to make any part of the restitution. It is from this entry that Appellant timely appeals. ASSIGNMENT OF ERROR THE TRIAL COURT ERRED WHEN IT DID NOT AFFORD DEFENDANTAPPELLANT KAREN NEFF ALLOCUTION AT SENTENCING PURSUANT TO OHIO CRIMINAL RULE 32. {¶6} Appellant claims that the trial court denied her request to present statements from her friends and family, thus denied her right to full allocution. {¶7} In response, the state argues that Appellant was permitted to speak at length at the sentencing hearing. After the conclusion of her statement, the court asked her trial counsel if they had anything further to present and counsel responded “no.” The Case No. 19 BE 0007 –4– court proceeded to announce her sentence, and it was not until the conclusion of the sentencing that Appellant, herself, inquired about whether others would be allowed to make additional statements. {¶8} At the sentencing hearing, the trial court judge directly asked Appellant if there was anything she wanted to say. She responded in the affirmative, and Appellant then proceeded to make a quite lengthy statement to the court. Immediately after Appellant finished her statement, the following occurred: [THE COURT]: All right. Thank you. Anything else, Mr. Jurco? MR. JURCO: No, sir. Thank you. (Sentencing Hrg. Tr., p. 16.) {¶9} The court immediately proceeded to announce Appellant’s sentence. After the court had finished, the following exchange occurred: THE COURT: Anything further from the State, Mr. Flanagan? MR. FLANAGAN: No, Your Honor. THE COURT: Mr. Jurco? MR. JURCO: No, sir. No, Your Honor. [APPELLANT]: What about the people that were here for me. They wanted to -THE COURT: I asked your counsel if there was anything else. He said no. Case No. 19 BE 0007 –5– [APPELLANT]: There is. They’re right here. (Sentencing Hrg. Tr., p. 26.) {¶10} The record contains no indication that the court further responded to Appellant’s statement, nor does it indicate that court was adjourned. It appears unclear whether the conversation continued and the transcript is incomplete, or whether court was adjourned without further response to Appellant. {¶11} The right to allocution derives from Crim.R. 32(A)(1), which provides that a trial 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.” {¶12} “[J]udges 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, 738 N.E.2d 1208 (2000), citing Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). “Trial courts must painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution. 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.” Id. at 359-360. {¶13} The trial court directly addressed Appellant in this matter and asked if she wished to make a statement. Appellant accepted the court’s invitation and spoke at some length. After she completed her statement, the court asked defense counsel if he had anything further, to which counsel responded “no.” The record gives no indication whether counsel was aware that character witnesses on behalf of Appellant were present in the courtroom. Case No. 19 BE 0007 –6– {¶14} Regardless, Appellant did not attempt to interject once her counsel stated that he had nothing further. It was not until after the court had sentenced her that she mentioned to the judge for the first time that she had character witnesses. The record is likewise silent as to the number of character witnesses and who those individuals were. However, the judge did state that he received and considered a written statement from Appellant’s sister. {¶15} We have previously held that a court afforded a defendant full allocution even though the defendant was interrupted by the judge. Any error due to the interruption was harmless, as the defendant was invited to speak, did speak, and was given an opportunity to continue after the interruption by the trial court. The defendant also had submitted a written statement, and defense counsel made a statement on behalf of the defendant advocating for a lesser penalty. State v. Roach, 7th Dist. Belmont 15 BE 0031, 2016-Ohio-4656. {¶16} In the instant case, Appellant made a statement at the sentencing hearing. While we do not know whether she submitted a written statement, the trial court did mention that her sister had submitted a written statement and that the court considered this statement in sentencing. As in Roach, the trial court directly offered allocution to Appellant and Appellant spoke at some length. Also, Appellant did not mention she had others she wished to speak on her behalf until after sentencing was complete. Based on these facts, the record reflects that the trial court complied with Crim.R. 32(A)(1). {¶17} As such, Appellant’s sole assignment of error is without merit and is overruled. Conclusion Case No. 19 BE 0007 –7– {¶18} Appellant argues that the trial court failed to allow her to present statements from family and friends on her behalf at the sentencing hearing, thus denying her full allocution. For the reasons provided, Appellant’s argument is without merit and the judgment of the trial court is affirmed. Donofrio, J., concurs. D’Apolito, J., concurs. Case No. 19 BE 0007 [Cite as State v. Neff, 2020-Ohio-4818.] For the reasons stated in the Opinion rendered herein, the assignment of error is overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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