COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70823 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD J. McKENZIE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-280532 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ARTHUR A. ELKINS (#0061094) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: GREGORY T. STRALKA (#0038681) Crown Centre - Suite 600 5005 Rockside Road Cleveland, Ohio 44131 - 2 - SPELLACY, J.: Defendant-appellant, Donald J. McKenzie ("appellant"), appeals from the sentence imposed upon his guilty plea to one count of robbery in violation of R.C. 2911.02. Appellant assigns the following error for our review: THE TRIAL COURT HAD PREJUDICIAL ERROR WHEN IT DENIED THE APPELLANT/DEFENDANT'S STATUTORY RIGHT TO BE FULLY HEARD AT THE TIME OF SENTENCING, THEREBY DENYING THE APPELLANT/DEFENDANT HIS RIGHTS UNDER OHIO LAW. Finding appellant's appeal to lack merit, we affirm the sentencing order of the trial court. I. On June 18, 1992, appellant was indicted on one count of aggravated robbery in violation of R.C. 2911.01. Appellant entered a plea of not guilty on May 20, 1993. On June 1, 1993, appellant entered into a plea agreement with the state whereby the state agreed to amend the indictment to robbery in violation of R.C. 2911.02 in exchange for appellant's guilty plea to the indictment as amended. On June 29, 1993, prior to sentencing, the trial court indicated to appellant that he had a right to make a statement before the court. (Tr. 14). Subsequently, appellant stated the following: Your Honor, all I can say is I know what I did was wrong. I'm willing to accept my consequences and I've been trying for over a year now. I've been working every day. I work 10 hours a day, 11 hours a day, with my dad. I - 3 - work hard just so I can pay, you know, pay my way in life. I'm only 19 and I don't want to go to prison. The night this happened, I just wanted to fit in with somebody, really. I didn't want to do what I did. I feel bad for what I did. I promise that it will never happen again. I just want a chance in life, you know, just want a chance to do what is right. I had a lot of people help me. I've got all new friends. I'm with my dad every day, 24 hours a day. I don't even go anywhere on the weekends. I work constantly, hard. I want to try to go - - you know, I'm trying to go to school so I can further my education a little bit so I can amount to something later. Just sorry for what I did and I hope that something good comes out of this. I'm really sorry. (Tr. 14-16). Following appellant's testimony, the trial court heard testimony from appellant's attorney as well. (Tr. 17-19). The trial court then sentenced appellant to a term of five (5) to fifteen (15) years. Appellant now appeals from the proceedings taken in connection with the court's imposition of sentence. II. In his sole assignment of error, appellant contends that the trial court denied him his statutory right to be fully heard at the time of sentencing. Crim.R. 32(A)(1) provides: * * * Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and also shall 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. - 4 - Similarly, R.C. 2947.05 provides: Before sentence is pronounced, the court shall inform the defendant of the verdict of the jury or of the finding of the court and shall ask the defendant whether he has anything to say as to why judgment should not be pronounced against him. The court shall give the prosecuting attorney an opportunity to give a statement with respect to the sentence in the case before sentence is pronounced and also shall permit the victim, or the victim's representative designated pursuant to section 2930.02 of the Revised Code, to give a statement with respect to the sentence in the case. "The language of these two provisions clearly mandates that a court give both defense counsel and the defendant an opportunity to speak prior to the imposition of sentence. * * * Where the court fails to inquire of both counsel and the defendant, the cause is to be remanded for the sole purpose of resentencing." Defiance v. Cannon (1990), 70 Ohio App.3d 821, 827-828; See also State v. Hawkins (September 15, 1994), Cuyahoga App. No. 65344, unreported. Our review of the record clearly shows that the trial court afforded both appellant and his defense counsel an opportunity to speak before sentence was pronounced and therefore fulfilled the requirement of allocution. Accordingly, appellant's sole assignment of error is overruled. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .