Background
Robert Freiburger was indicted on 19 counts in connection with two break-ins at a car dealership. He pleaded guilty to five charges, including attempted engaging in a pattern of corrupt activity (RICO), attempted grand theft of a motor vehicle, burglary, vandalism, and having weapons while under disability. The trial court sentenced him to an aggregate minimum of 13 years and maximum of 16.5 years in prison, ordering the sentences for the RICO, burglary, and weapons charges to run consecutively.
On appeal, Freiburger raised five assignments of error challenging: (1) the trial court’s consideration of a prosecution PowerPoint and uncharged conduct at sentencing; (2) the denial of his request to consult with counsel immediately before allocution; (3) the consecutive-sentence findings; (4) the failure to merge allied offenses; and (5) ineffective assistance of counsel.
The Court’s Holding
The Sixth District affirmed on all five assignments of error. On allocution, the court found that the trial court did not violate Freiburger’s rights by declining to interrupt the sentencing proceeding for a mid-hearing consultation. The court noted that Freiburger had ample opportunity to confer with counsel before the hearing and that the right to allocution under Crim.R. 32(A)(1) does not include a right to pause the proceeding for additional attorney consultation after counsel has already spoken.
On merger, the court found that burglary and attempted grand theft of a motor vehicle were offenses of dissimilar import committed separately. The burglary was complete upon forced entry into the dealership, causing harm through the trespass and property damage, before the attempted theft of the vehicle occurred. The court also upheld the consecutive-sentence findings and the trial court’s consideration of the PowerPoint and uncharged conduct, noting that a sentencing court may consider a wide range of information and that Freiburger failed to challenge the accuracy of the PSI under R.C. 2951.03(B)(2).
Key Takeaways
- The right to allocution under Crim.R. 32(A)(1) does not include a right to pause sentencing proceedings for additional attorney consultation after counsel has already addressed the court.
- Burglary and attempted grand theft of a motor vehicle are offenses of dissimilar import that may be sentenced separately where the burglary causes distinct harm (trespass and property damage) and is completed before the theft is attempted.
- A sentencing court may consider a prosecution’s PowerPoint presentation and uncharged conduct described in a PSI, provided the defendant does not challenge the accuracy of the PSI under R.C. 2951.03(B)(2).
Why It Matters
This decision provides important guidance on several recurring sentencing issues in Ohio. The allocution ruling draws a clear line: defendants have the right to speak before sentencing, but that right does not extend to pausing the proceeding for last-minute attorney consultation. Defense counsel should ensure all necessary discussions occur before the hearing begins. The merger analysis offers a practical framework for distinguishing burglary from theft offenses, which frequently arise in commercial break-in cases. And the court’s treatment of the prosecution PowerPoint confirms the broad discretion trial courts have at sentencing, underscoring the importance of using R.C. 2951.03’s accuracy-challenge procedure if a defendant disputes PSI contents.