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7th District finds judge erred by violating man’s allocation rights
TRACEY BLAIR
Legal News Reporter
Published: October 20, 2016
The 7th District Court of Appeals has remanded an obstruction case because a Struthers Municipal Court judge did not allow a defendant or his attorney a chance to speak at sentencing.
Michael A. Albright was arrested for assault and obstructing official business at his Poland Township home on July 2, 2013.
A jury convicted him of obstructing official business and acquitted him of assault.
He was sentenced to the maximum 90 days in jail for the second-degree misdemeanor and fined $750 plus court costs.
Court records show police responded to the Shepherds Ridge Road home after receiving a report of a wild party with underage drinking.
The first officer to arrive said two men in the front yard who appeared to be under the age of 21 ran down the driveway after he tried to speak with them.
During a pursuit, Albright, who was 21 at the time and the property owner, stood in the officer’s path between two parked cars.
The patrolman said Albright, who appeared intoxicated, pushed the officer backward and began screaming at police as partygoers began hiding the beer.
Albright had no prior criminal record.
On appeal, Albright argued he had “privilege” to interfere during the pursuit and that his counsel was ineffective for not filing a motion to suppress statements he made after officers entered his property.
The appellate court affirmed his conviction, but agreed Albright’s allocution rights under Crim.R. 32(A)(1) were violated at sentencing.
Seventh District Judge Carol Ann Robb noted the court immediately announced the sentence after calling the case “without providing the defense attorney, the defendant, or the prosecuting attorney an opportunity to speak.”
The state previously conceded, agreeing the case must be remanded for a new sentencing hearing.
“When counsel was able to speak, he found himself arguing against a sentence the court already announced rather than arguing against a recommendation of the victim as expressed in the pre-sentence investigation,” Judge Robb wrote in her opinion. “… The trial court failed to personally ask Appellant if he wished to make a statement on his own behalf or present any information in mitigation of punishment. …The error was not invited nor was it harmless.”
Appellate judges Cheryl L. Waite and Mary DeGenaro concurred.
The case is cited State v. Albright, 2016-Ohio-7037.