State v. Spiess
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[Cite as State v. Spiess, 2002-Ohio-2051.] IN THE COURT OF APPEALS OF WILLIAMS COUNTY State of Ohio Court of Appeals No. WM-01-015 Appellee Trial Court No. CRB0100970 v. Ryan L. Spiess DECISION AND JUDGMENT ENTRY Appellant Decided: April 26, 2002 * * * * * Paul H. Duggan, for appellant. * * * * * SHERCK, J. {¶1} This is an accelerated appeal from a misdemeanor assault conviction and subsequent sentence rendered in the Bryan Municipal Court. {¶2} This matter is before the court on an agreed statement of facts, pursuant to App.R. 9(D). {¶3} Appellant, Ryan L. Spiess, pled guilty to assault on October 22, 2001. appellant guilty The trial court accepted the plea, found and ordered a presentence Sentencing occurred on November 15, 2001. investigation. On that date the trial court fined appellant $500 and costs and imposed a six month jail term, five months of which was suspended. hearing, the opportunity to court speak failed on to offer appellant's During the sentencing appellant's behalf, counsel failed to an offer appellant the opportunity to make his own statement and failed to question appellant as to his ability to pay a fine. {¶4} On appeal, appellant asserts that the trial court's failure to afford appellant a right of allocution was a violation of Crim.R. 32(A)(1) and the court's failure to quiz appellant about his ability to pay a fine is a violation of R.C. 2929.22. Appellee, state of Ohio, failed to file a brief in this case. {¶5} A trial court must afford a criminal defendant the right of allocation pursuant to Crim.R. 32 prior to the imposition of sentence. State v. Campbell (2000), 90 Ohio St.3d 320, paragraph one of the syllabus. invited error or While the failure to afford the right may be held harmless, in this matter there is no indication in the record of such invitation or substitute acts which might render the failure to grant the right harmless. id. at 325. See Accordingly, appellant's first assignment is well- taken. {¶6} R.C. 2929.22(F) forbids a court from imposing a fine on a misdemeanant which exceeds the offender's ability to pay without undue hardship. The statute imposes upon a court an affirmative duty to justify a decision to impose a fine. (1995), 101 Ohio App.3d 428, 432. State v. Polick Consequently, a failure of the court to inquire or otherwise ascertain an offender's ability to pay a fine constitutes a sentencing abuse of discretion. Id. Accordingly, appellant's second assignment of error is well-taken. 2. {¶7} Upon consideration whereof, the sentencing order of the Bryan Municipal Court is vacated. This matter is remanded to said court for resentencing in conformity with this decision. Costs to appellee. JUDGMENT VACATED. Peter M. Handwork, J. ____________________________ JUDGE Melvin L. Resnick, J. James R. Sherck, J. CONCUR. ____________________________ JUDGE ____________________________ JUDGE 3.
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