COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72592 STATE OF OHIO : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION MARY CRISAFI : : PER CURIAM : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 22, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-338894. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John Gallagher, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Craig T. Weintraub, Esq. 620 Terminal Tower Cleveland, OH 44113 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Mary Crisafi, defendant-appellant, appeals from her sentence of eighteen months in the Ohio State Reformatory for Women on the offense of drug abuse in violation of R.C. 2925.11, a felony of the fourth degree. Defendant-appellant assigns two errors for this court's review. On April 15, 1996, defendant-appellant was arrested by the Cleveland Police for drug possession. On May 22, 1996, defendant- appellant was indicted by the Cuyahoga County Grand Jury, Case No. CR-338894, in a single count indictment alleging drug abuse in violation of R.C. 2925.11. The indictment also contained two furthermore clauses based upon defendant-appellant's prior convictions of the offenses of attempted drug abuse and drug abuse which occurred on March 8, 1995 and January 27, 1995, respectively. On February 6, 1997, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to the indictment. On March 18, 1997, defendant-appellant withdrew her formerly entered plea of not guilty and entered a plea of guilty to one count of drug abuse in violation of R.C. 2925.11. Prior to defendant-appellant's plea of guilty, the underlying indictment was amended to delete the attendant furthermore clauses. Subsequent to the plea, the trial court referred defendant-appellant, at her request, to the probation department for a presentence -3- investigation and a TASC assessment for eligibility into the TASC Program. As the underlying offense occurred prior to July 1, 1996, Senate Bill 2 was inapplicable to this case for sentencing purposes. The trial court scheduled defendant-appellant's sentencing hearing for April 15, 1997. At the time of sentencing, it is undisputed that defendant-appellant was pregnant. At the sentencing hearing defense counsel maintained that defendant-appellant was approximatey six months pregnant, agreed to prenatal care and was willing to participate and complete an approved drug treatment program in accordance with R.C. 2925.11(H). (T. 3, 4). In addition, a representative from the Community Entry Program stated that defendant-appellant qualified for assistance from the program in conjunction with that provided by the TASC Program. (Tr. 4,5.) The trial court then sentenced defendant- appellant to eighteen months in the Ohio State Reformatory for Women without allowing defendant-appellant an opportunity to speak in accordance with Crim.R. 32(A)(1) and R.C. 2947.05. The instant appeal now follows. Defendant-appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY SENTENCING APPELLANT TO THE OHIO STATE REFORMATORY FOR WOMEN IN CONTRAVENTION OF O.R.C. S2925.11(H). Defendant-appellant argues that, although she was pregnant and expressed her desire and intention to enter a court approved drug treatment program, the trial court improperly sentenced her to -4- eighteen months incarceration in direct contravention of the mandates of R.C. 2925.11(H). R.C. 2925.11(H), which was in effect at the time of defendant- appellant's sentencing, provided: (H) If a person who has been convicted of or pleaded guilty to a violation of this section is a woman who is pregnant at the time of sentencing for the violation of this section, and if the offender agrees both to receive prenatal care as ordered by the court and to participate in and successfully complete rehabilitation at an appropriate drug treatment facility or program as described in division (B) of section 2951.04 of the Revised Code in connection with the use of any controlled substance, then, in lieu of requiring the offender to serve a term of imprisonment pursuant to division (C) of this section, the court shall suspend the offender's sentence of imprisonment and place her on probation pusuant to section 2951.02 of the Revised Code, with at least one of the conditions of her probation being that she receive prenatal care as ordered by the court until the birth of her child and participate in and successfully complete rehabilitation at an appropriate drug treatment facility or program as described in division (B) of section 2951.04 of the Revised Code in connection with the use of any controlled substance until she is rehabilitated and released from this requirement by an order of the court. (Emphasis added.) A review of the record demonstrates that defendant-appellant was pregnant and addicted to a number of drugs at the time of her sentencing. A further review shows that defendant-appellant agreed to receive the appropriate prenatal care as well as participate in and successfully complete drug rehabilitiation as contemplated pursuant to R.C. 2925.11(H). Clearly, under the circumstances -5- present in the case sub judice, the trial court was required by the mandatory language contained in the statute to suspend defendant- appellant's sentence of imprisonment and place her on probation pursuant to R.C. 2951.02. Such action by the trial court would have been in conformity with the state's legitimate interest in protecting the health of unborn infants and their mothers as set forth in the underlying statute.1 See State v. Crim (Sept. 2, 1993), Cuyahoga App. No. 63439, unreported; State v. Sturgill (Nov. 13, 1995), Butler App. No. CA95-02-024, unreported. Accordingly, defendant-appellant's first assignment of error is well taken. Defendant-appellant's second assignment of error states: THE TRIAL COURT COMMITTED ERROR, PREJUDICIAL TO THE APPELLANT, WHEN IT DENIED HER ALLOCUTION RIGHTS PRIOR TO AND DURING HER SENTENCING. Defendant-appellant maintains, through her second and final assignment of error, that she was improperly sentenced by the trial court without being afforded the opportunity to address the court on her own behalf. Crim.R. 32(A)(1) provides in pertinent part: *** 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. 1 R.C. 2925.11(H) is no longer in effect in the State of Ohio as of July 1, 1996. As the underlying sentence was imposed on April 15, 1996, R.C. 2925.11(H) was applicable to this case. -6- R.C. 2947.05, which was in effect at the time of sentencing but later repealed effective July 1, 1996, provided in pertinent part: Before sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he has anything to say as to why judgment should not be pronounced. The trial court has a duty to afford a defendant a right to allocution. Defiance v. Cannon (1990), 70 Ohio App.3d 821, 827; 592 N.E.2d 884. The purpose of allocution is to allow the defendant an additional opportuity to state any further information which the judge may take into consideration when determining the sentence to be imposed. Defiance, at 828. The requirement of allocution is fulfilled where the conduct of the court is such that both the defendant and defense counsel know that each has a right to speak before imposition of the sentence. Defiance, at 828, citing United States v. Byars (C.A. 6, 1961) 290 F.2d 515, 517; State v. Williams (May 15, 1997), Franklin App. No. 96APA08-1077, unreported. In Columbus v. Herrell (1969), 18 Ohio App.2d 149, 247 N.E.2d 770, the Franklin County Court of Appeals, in dealing with this issue, stated: *** R.C. 2947.05 imposes a mandatory duty, but where the record shows that it was not followed and where this is only error in the record, the finding of guilt is not reversed but instead the cause is remanded to the trial court for the sole purpose of resentence. Silby v. State (1928), 119 Ohio St. 314, 164 N.E.2d 232. Id. at 153-154. -7- In the case sub judice, a review of the record supports defendant-appellant's contention that she was not afforded an opportunity to address the court before it pronounced sentence against her. Herrell; State v. Wurdlow (Aug. 27, 1996), Franklin App. No. 96APC03-273, unreported. Defendant-appellant's second assignment of error is well taken. For the foregoing reasons, defendant-appellant's sentence is hereby vacated and this matter is remanded to the trial court for the limited purpose of resentencing in accordance with this court's opinion. The judgment of the trial court is reversed and remanded for resentencing. -8- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, PRESIDING JUDGE TIMOTHY E. MCMONAGLE, JUDGE *ROBERT E. HOLMES, JUSTICE *Sitting by assignment: Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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(E) 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 .