[Cite as State v. Fowler, 2022-Ohio-3499.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

OTTAWA COUNTY

State of Ohio Court of Appeals No. OT-21-031

Appellee Trial Court No. 2020CRI007

 

v.

Andru Fowler DECISION AND JUDGMENT

Appellant Decided: September 30, 2022

* * * * *

James J. VanEerten, Ottawa County Prosecuting Attorney, and

Thomas A. Matuszak, Assistant Prosecuting Attorney, for appellee.

Michael H. Stahl, for appellant.

* * * * *

MAYLE, J.

{¶ 1} Appellant, Andru Fowler, appeals the October 11, 2021 judgment of the 

Ottawa County Court of Common Pleas sentencing him to 18 months in prison on a 

conviction of vehicular homicide. For the following reasons, we reverse.
2.

I. Background and Facts

{¶ 2} In July 2019, Fowler was involved in a motorcycle crash that killed D.S. and 

resulted in the amputation of Fowler’s arm. As a result, he was indicted on one count of 

aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a), a third-degree 

felony.

{¶ 3} Fowler and the state reached a plea agreement that allowed Fowler to plead 

no contest to a reduced charge of vehicular homicide in violation of R.C. 

2903.06(A)(3)(a), a fourth-degree felony.1 The trial court found him guilty.2

{¶ 4} At Fowler’s sentencing hearing, the prosecutor described Fowler’s case as “a 

very serious case, perhaps one of the most serious we have handled.” The state noted that 

Fowler “took a life. And although he wants or may want to claim that it was an accident, 

it was clearly a preventable accident. It is the State’s position that it wasn’t an accident, 

that it was reckless, that his operation of the motorcycle was reckless.” In support of this 

contention, the state submitted an affidavit from a registered nurse who saw Fowler 

driving his motorcycle shortly before the crash, heard the crash, and helped tend to D.S. 

and Fowler after the crash, but who did not witness the crash itself. The state also noted 

that Fowler made “insensitive” posts to social media following the accident, which 

1 R.C. 2903.06(A)(3)(a) provides that “[n]o person, while operating or participating in the 

operation of a * * * motorcycle,* * * shall cause the death of another * * * in any of the 

following ways: * * * [n]egligently[.]”

2 The transcript of the plea hearing is not in the record, so any factual information about 

the accident that the state presented at the time Fowler pleaded no contest is not before 

us. 
3.

showed that he lacked “significant remorse.” The state asked the court to impose the 

maximum sentence of 18 months in prison.

{¶ 5} Fowler’s attorney acknowledged the terrible tragedy and loss that D.S.’s 

family had suffered, but argued that, although Fowler had done “some things wrong, for 

sure[,]” in the end, “[i]t was an accident[,]” and the court should take into account that 

Fowler was a young man who did not “use great judgment * * *.” He argued that Fowler 

was a hard worker who had found a job and was impressing his new employer, despite 

his new physical limitations. He also told the court that Fowler would always have to 

live with the fact that he had caused D.S.’s death and with the loss of his arm, and said 

that Fowler was “absolutely apologetic for what occurred.” He asked that Fowler receive 

less than the maximum prison sentence.

{¶ 6} When it was his turn to speak, Fowler apologized to D.S.’s family and said 

that “[t]here ain’t a day that goes by that I don’t think about you guys and if there was 

something I could have done anything different, I would have. I really am sorry.”

{¶ 7} The court also heard statements from D.S.’s wife, son, daughter, and father 

before imposing its sentence.

{¶ 8} After considering the statements and reviewing the affidavit, the trial court 

reviewed the factors in R.C. 2929.11 and 2929.12. The court concluded that “[t]he more 

likely recidivism factors do not outweigh the less likely factors. The more serious factors 

outweigh the less serious factors.” The court also found under R.C. 2929.13 that Fowler 

was not amenable to community control.
4.

{¶ 9} While reviewing the circumstances of the case, the court said,

A couple of things I think are worth noting, and that is that Mr. 

Fowler says that the offense that was committed was not anything more 

than “A complete accident. I would not do such thing purposely.” Again, I 

believe the factor that it was a complete accident should be taken into 

consideration. It is my view that this was an accident that was certainly not 

only preventable, but predictable that this would happen.

I live very close to where this accident occurred, right across the 

river. I was not home at the time of this accident, but my wife was and said 

that she could hear your motorcycle leaving town and knew by the pitch of 

the engine and how quickly it was moving up the road that there would be 

an accident. She knew that from a half a mile, a mile away, so it was 

predictable not only, it was probable.

After making a couple of additional statements about the circumstances, and without 

giving Fowler or his attorney an opportunity to respond to the judge’s comments about 

his wife’s observations from the night of the accident, the trial court sentenced Fowler to 

18 months in prison.

{¶ 10} Fowler now appeals his conviction, raising two assignments of error:

I. The maximum sentence imposed in this case was contrary to 

law[.]
5.

II. Article IV, Sect. 3(B)(2) of the Ohio Constitution provides 

jurisdiction for this Court to review, remand, or modify criminal sentences 

which are contrary to any law and Art. I Sect. 16 of the Ohio Constitution 

guarantees due process and justice in the courts, neither permit removing 

trial court decisions from appellate review [sic].

II. Law and Analysis

A. Fowler’s sentence is contrary to law.

{¶ 11} In his first assignment of error, Fowler argues that his sentence is contrary 

to law because the trial court relied on facts that the trial judge learned from a source 

outside of the facts presented in the case—i.e., from his wife—in reaching its sentencing 

decision, and sentenced him as if he had been convicted of vehicular homicide based on 

reckless—rather than negligent—operation of a motor vehicle. He also urges us to 

reexamine our review of felony sentences under R.C. 2953.08(G) following State v. 

Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, and to apply an abuse-ofdiscretion standard of review to the trial court’s decision once we have determined that a 

sentence is clearly and convincingly contrary to law. In that vein, he contends that the 

trial court’s sentencing decision was an abuse of discretion because the judge should have 

disqualified himself pursuant to Jud.Cond.R. 2.11, and his failure to do so prejudiced 

Fowler, and because the court relied on uncharged conduct to impose a more severe 

sentence.
6.

{¶ 12} The state responds that (1) we cannot conduct an independent review to 

determine if the trial court properly applied the factors in R.C. 2929.11 and 2929.12; (2) 

Fowler’s sentence is not contrary to law because it is within the statutory range; (3) 

Fowler did not submit the full trial court record, which includes transcripts from the plea 

hearing and a hearing on a motion in limine, so this court “does not have a complete 

record before it that is otherwise necessary to determine what facts the trial court based 

its finding of guilt and, ultimately, its sentence * * *” on, and must presume the regularity 

of the proceedings below; (4) Fowler cannot raise a claim of judicial bias on direct 

appeal; and (5) even if judicial bias were properly raised on direct appeal, Fowler did not 

object in the trial court, so he has forfeited all but plain-error review of the issue. 

{¶ 13} We review challenges to felony sentencing under R.C. 2953.08(G)(2), 

which allows us to increase, reduce, or modify a sentence, or vacate the sentence and 

remand the case for resentencing, only if we clearly and convincingly find either (1) that 

the record does not support the trial court’s findings under certain statutory sections not 

applicable here, or (2) “the sentence is otherwise contrary to law.” R.C. 

2953.02(G)(2)(a)-(b). Although we have repeatedly recognized that “[a] sentence is not 

clearly and convincingly contrary to law where the trial court has considered the purposes 

and principles of sentencing under R.C. 2929.11 and the seriousness and recidivism 

factors under R.C. 2929.12, properly applied postrelease control, and imposed a sentence 

within the statutory range[,]” State v. Gipson, 6th Dist. Ottawa Nos. OT-21-001, OT-21-

002, and OT-21-003, 2022-Ohio-2069, ¶ 25, citing State v. Tammerine, 6th Dist. Lucas 
7.

No. L-13-1081, 2014-Ohio-425, ¶ 15-16; and State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124, this does not mean that a sentence cannot be “otherwise 

contrary to law” for other reasons. Indeed, as the Ohio Supreme Court recently 

recognized, the phrase “otherwise contrary to law” simply means “‘in violation of statute 

or legal regulations at a given time.’” State v. Bryant, Slip Opinion No. 2022-Ohio-1878, 

¶ 22, quoting Jones at ¶ 34. In Bryant, for example, the Supreme Court determined that a 

sentence was “contrary to law” because it was “improperly imposed based on 

impermissible considerations—i.e., considerations that fall outside those that are 

contained in R.C. 2929.11 and 2929.12.” Id.

{¶ 14} In this case, after careful review, we agree that Fowler’s sentence is clearly 

and convincingly contrary to law for several reasons.

{¶ 15} First, Fowler’s sentence is “contrary to law” because the trial court relied 

on information from a source outside of those authorized by R.C. 2929.19(B)(1)(a), 

which requires a sentencing court to consider the record in the case, any presentence 

investigation report, any victim impact statement, and “any information presented at the 

[sentencing] hearing by any person * * *.” A sentencing court may only consider 

information that is properly before it at the sentencing hearing and cannot consider 

information from outside of the record. State v. McManus, 8th Dist. Cuyahoga No. 

101922, 2015-Ohio-2393, ¶ 31, citing State v. Ford, 3d Dist. Union No. 14-10-07, 2010-

Ohio-4069; and State v. Bayliff, 3d Dist. Auglaize No. 2-10-08, 2010-Ohio-3944; see also 

State v. Hale, 2014-Ohio-262, 7 N.E.3d 643, ¶ 30 (3d Dist.) (Rogers, J., concurring in 
8.

part) (Citing cases to support the proposition that “the trial court must only consider what 

is properly on the record at sentencing, and cannot rely on information outside of the 

record.”). By using information outside of the record to sentence Fowler, the trial court 

left Fowler and his attorney without the ability to prepare a response to the observations 

that the judge’s wife made about the accident. R.C. 2929.19(B)(1)(a) exists, at least in 

part, to help prevent this type of unfair surprise.

{¶ 16} Second, the trial court violated Fowler’s right of allocution by sentencing 

him without giving him or his attorney an opportunity to respond to the new information 

that the trial judge introduced at sentencing. Under Crim.R. 32(A)(1), at the time of 

sentencing, the court shall “[a]fford counsel an opportunity to speak on behalf of the 

defendant and 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.” A defendant has an absolute right of allocution because “[a] Crim.R. 32 

inquiry is much more than an empty ritual: it represents a defendant’s last opportunity to 

plead his case or express remorse.” State v. Green, 90 Ohio St.3d 352, 359-360, 738 

N.E.2d 1208 (2000). Inherent in the right of allocution is “the opportunity for the 

defendant to address the court directly on his own behalf after all the information on 

which the sentencing court relies when pronouncing sentence has been presented.” 

(Emphasis sic.) State v. Brown, 166 Ohio App.3d 252, 2006-Ohio-1796, 850 N.E.2d 116, 

¶ 13 (11th Dist.).
9.

{¶ 17} A trial court can violate a defendant’s right of allocution if it does not allow 

the defendant to respond after new information is introduced and considered by the court 

at the sentencing hearing. State v. Yates, 195 Ohio App.3d 33, 2011-Ohio-3619, 958 

N.E.2d 640, ¶ 21 (2d Dist.). When the court (as opposed to the state or a third party) 

introduces the new information, there is a higher likelihood that the court actually 

considered the new information in arriving at its sentence, and, consequently, a higher 

likelihood of prejudice to the defendant. See State v. Gutierrez, 6th Dist. Wood No. WD21-035, 2021-Ohio-4232, ¶ 18 (“[T]he trial court, not the state, introduced the new 

information in Yates. This distinction is material insofar as it supports a logical 

conclusion that since the trial court introduced the information it therefore considered the 

new information in fashioning its sentence. On the other hand, the state’s introduction of 

new information does not lead to such a conclusion.” (Emphasis sic.)). When a 

defendant’s right of allocution is violated, the reviewing court will reverse his sentence 

and remand the case for resentencing unless the error was invited or harmless. Id. at ¶ 14.

{¶ 18} Here, the trial court introduced new information at the sentencing hearing 

when the trial judge reported his secondhand knowledge about the accident—i.e., the 

information about the “pitch of the engine and how quickly it was moving up the road” 

that the judge learned from his wife. This outside knowledge led the court to conclude 

that the accident that Fowler caused “was predictable not only, it was probable[,]” which 

contradicted Fowler’s claim that it was a “‘complete accident.’” The court’s statement, 

read in the context of the court’s comments at the sentencing hearing, shows that the 
10.

court took this outside information into consideration and relied on it when deciding to 

sentence Fowler to 18 months in prison.3 Although Fowler and his attorney had the 

opportunity to speak earlier in the sentencing hearing, neither was given an opportunity to 

respond to the new information introduced by the judge before the court imposed its 

sentence. This violated Fowler’s right to allocution because he was deprived of his “last 

opportunity to plead his case or express remorse,” Green at 360, in response to the 

judge’s assessment of his culpability for the accident.

{¶ 19} When the court fails to allow a defendant to respond to new information, 

the error may be harmless if the defendant does not object or the court does not base its 

sentence on the new information. Gutierrez at ¶ 20, citing Yates at ¶ 22. Harmless error 

is “[a]ny error, defect, irregularity, or variance which does not affect substantial rights * * 

*.” Crim.R. 52(A). 

{¶ 20} Although Fowler did not object to the trial court’s statement about the 

information that the judge learned from his wife, we cannot find that the court’s recitation 

of this information was harmless. The trial court’s own words show that the court relied 

on the information in forming its opinion that the accident (and D.S.’s resulting death), 

“was predictable not only, it was probable[,]” and in reaching its conclusion that 18 

months was the appropriate sentence for Fowler’s crime. The impact of this information 

3 The trial court, moreover, appeared to impute reckless conduct to Fowler, i.e., that 

Fowler disregarded “a substantial and unjustifiable risk that [his] conduct is likely to 

cause a certain result or is likely to be of a certain nature[,]” as opposed to the negligent 

conduct, i.e., a “substantial lapse from due care, * * *” to which Fowler pleaded. See 

R.C. 2901.22(C) and (D).
11.

was increased because it was introduced by the court—rather than the state or a third 

party—and the court relied heavily on this observation to discount Fowler’s description 

of what happened as “not anything more than ‘A complete accident. * * *’” Compare 

Gutierrez at ¶ 18-20 (violation of defendant’s right of allocution was harmless because 

the new information was introduced by the prosecutor, the trial court refused to explore 

the new information, the court was careful to focus on the information in defendant’s 

presentence investigation report and his statement earlier in the sentencing hearing, and 

the record showed that defendant’s sentence was based on the facts of his current 

conviction and his criminal history).

{¶ 21} In sum, because the record shows that the trial court introduced information 

from outside the record—i.e., not from the record of this case, the PSI, a victim impact 

statement, or any of the statements made at the sentencing hearing—and relied heavily on 

that information to rebut Fowler’s explanation of events, we find that the trial court’s 

failure to allow Fowler or his attorney an opportunity to respond was not harmless, 

despite Fowler’s failure to object. Accordingly, Fowler’s sentence is contrary to law, and 

we must vacate Fowler’s sentence and remand the matter for resentencing.

{¶ 22} Fowler’s first assignment of error is well-taken.

B. Fowler’s second assignment of error is moot.

{¶ 23} In his second assignment of error, Fowler, relying on a dissent in a case 

decided before Jones, summarily asserts that we have the jurisdiction to review Fowler’s 

sentence under Article IV, Section 3(B)(2), Ohio Constitution, and R.C. 2953.02, or, 
12.

alternatively, that the due process clause in Article I, Section 16, Ohio Constitution, 

should allow us to review excessive sentences using an abuse-of-discretion standard. 

Because we have vacated Fowler’s sentence, however, we need not reach these issues.

{¶ 24} Therefore, we find that Fowler’s second assignment of error is moot and is 

not well-taken.

III. Conclusion

{¶ 25} Based on the foregoing, the October 11, 2021 judgment of the Ottawa 

County Court of Common Pleas is reversed, and the case is remanded for resentencing.4 

The state is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed,

and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.

4

In his brief, Fowler argues that the trial judge violated Jud.Cond.R. 2.11 by relying on 

information that the judge learned from his wife, and he asks that we “remand the case 

for resentencing with the appointment of a judge [who is] unburdened and unbiased * * 

*.” The exclusive remedy for a litigant who claims that a common pleas court judge is 

biased or prejudiced is filing an affidavit of disqualification with the Supreme Court

under R.C. 2701.03. State v. Quinn, 6th Dist. Lucas No. L-12-1242, 2014-Ohio-340, ¶ 

31, citing State v. Meza, 6th Dist. Lucas No. L-03-1223, 2005-Ohio-1221, ¶ 31; and 

Berdyck v. Shinde, 128 Ohio App.3d 68, 81, 713 N.E.2d 1098 (6th Dist.1998). As a 

result, a court of appeals lacks authority to determine issues of disqualification. Id., 

citing Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978); Meza at ¶ 31;

and State v. Dougherty, 99 Ohio App.3d 265, 269, 650 N.E.2d 495 (3d Dist.1994).
13.

State of Ohio v.

Andru Fowler

C.A. No. OT-21-031

Christine E. Mayle, J. ____________________________

JUDGE

Gene A. Zmuda, J. 

____________________________

Myron C. Duhart, P.J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.