570 March 27, 2024 No. 184

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DARNELL ROSS,

Defendant-Appellant.

Beaverton Municipal Court

2210863; A180024

Edward A. Kroll, Judge.

Submitted February 26, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Sarah De La Cruz, Deputy Public Defender, 

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin 

Gutman, Solicitor General, and E. Nani Apo, Assistant 

Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Affirmed.
Cite as 331 Or App 570 (2024) 571

ORTEGA, P. J.

Defendant appeals from a judgment of conviction for 

second-degree criminal trespass, ORS 164.245. He pleaded 

no contest to that charge and the trial court, after accepting 

his plea, sentenced defendant in accordance with the parties’ agreement. After the court pronounced sentence, defendant sought to speak to the court, and when he became verbally abusive, the court “muted” defendant and concluded 

the hearing. Defendant assigns error to the trial court’s 

decision to “mute” him, arguing that the court violated his 

right to allocution.1

 Under the circumstances, we conclude 

that the court did not err and affirm.

Article I, section 11, of the Oregon Constitution provides a criminal defendant the right “to be heard by himself 

and counsel.” A defendant’s right “to be heard by himself” 

refers to the right of allocution. State v. Guzek, 358 Or 251, 

278-79, 363 P3d 480 (2015). That right provides defendants 

with an opportunity to personally make a case for sentencing mitigation. Id. at 279. Denying a defendant the right 

to make a statement before sentencing violates the allocution right. State v. Isom, 201 Or App 687, 693-94, 120 P3d 

912 (2005). Specifically, Article I, section 11, provides a 

defendant “the right of allocution before the imposition of 

sentence.” State v. Southards, 172 Or App 634, 639, 21 P3d 

123 (2001) (emphasis added). Once the court has pronounced 

the sentence, the time to make the case for leniency in sentencing has passed, and thus there is no further purpose for 

allocution.

Here, after engaging in a colloquy with defendant 

to determine whether his plea was knowing, intelligent, and 

voluntary, the court accepted his no contest plea and the 

following exchange occurred:

1 Although the record is not clear on this point, it seems that defendant appeared 

at the hearing remotely via a videoconferencing link. The date of the hearing, 

August 19, 2022, places it during a time when some hearings were held remotely in 

criminal cases due to the COVID-19 pandemic. The notice of the hearing that was 

sent to defendant’s attorney specified a courtroom at the courthouse, but the notice 

that was directed to defendant personally did not specify a courtroom. Both notices 

contained generic directions for how to attend a hearing remotely. Thus, we understand the court’s references to defendant being “muted” as meaning that the audio 

portion of defendant’s stream to the courtroom was stopped.
572 State v. Ross

“THE COURT: All right. I’ll find that’s made intelligently, voluntarily and knowingly.

“And, [defendant], I assume you gave *** your Defense 

Attorney[] permission to put your signature on this Plea 

Petition; is that correct, sir?

“THE DEFENDANT: You know, I had a question for 

you, man. Who will you get to—Your Honor, I had a question for you.

“THE COURT: You can certainly ask, sir. I’m not sure 

I’ll be able to answer, but you are welcome to ask.

“THE DEFENDANT: Oh, oh, oh, yes, you will, you’ll 

be able to answer it.

“So when you get done, I have a question for you, too.

“THE COURT: All right. We’ll continue, sir, and you 

can answer [sic] your question when it’s appropriate.

“* ****

“All right. So, [defendant], I do find you guilty, based on 

your plea, of Criminal Trespass in the Second Degree. I 

will follow the agreed-upon sentence. First, that the cases 

ending in 978 and 904 are dismissed.

“And in this case your sentence will be 10 days in jail 

with credit for time served. It appears you’ve already 

served an excess of that. And you have no other holds, sir. 

So most likely you’ll be released later today.

“I will waive all finances and you do not have a probation on this case, so you are essentially free to go, as far as 

our court is concerned right now.

“THE DEFENDANT: So, can I say what I’ve got on my 

mind to say now?

“THE COURT: You may.

“THE DEFENDANT: I’m depressed. I went to jail for 

a day. I went to jail for a day, I’ve got jail for a day, and I’ve 

got MAX for a day. That’s one.

“Number two, I don’t appreciate you ever fuckin’ tell me 

that I am incompetent. I am incompetent. You don’t know 

what the fuck I’m doing. Wait. Hold on.

“THE COURT: Okay. Let’s go ahead and mute him.
Cite as 331 Or App 570 (2024) 573

“THE DEFENDANT: Wait. Hold on for a minute. I’m 

not convicted. I’ve got a fuckin’ high school diploma.

“THE COURT: Okay. So, sir, you’ve been muted. 

Thank you. For your comments. Your case is done, and you 

are free to go.”

At the time when an allocution would have been 

appropriate, defendant did not indicate that he wished to 

make an allocution. He stated that he wanted to ask the 

court a question, to which the court was receptive; it told 

defendant he was “welcome to ask.” Defendant instead told 

the court that his question could wait. The court then pronounced sentence. At the time that it became clear that 

defendant wished to make a statement and not merely ask 

the court his question, sentencing had already occurred.

Although the court was not required to, the court 

allowed defendant to make a statement until defendant 

began berating the court using abusive language. The court 

did not have to allow defendant to continue to speak because 

the time for an allocution had passed, and because defendant was speaking to the court in a way that the court had 

authority to curb. See, e.g., State v. Rogers, 330 Or 282, 300, 

4 P3d 1261 (2000) (“It is well established that a trial court 

generally possesses broad discretion to control the proceedings before it.”); ORS 1.010 (every court has power to preserve and enforce order in its presence; to provide for orderly 

conduct of proceedings; to control the conduct of persons 

connected with a judicial proceeding before it).

Under these circumstances, it was not reversible 

error for the court to order the audio portion of defendant’s 

audio-visual stream to be muted.

Affirmed.