Biddinger v. State, 49S05-0608-CR-305.

• Decision Date: 20 June 2007
• Docket Number: No. 49S05-0608-CR-305.,49S05-0608-CR-305.
• Parties: Nicholas BIDDINGER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

868 N.E.2d 407

Nicholas BIDDINGER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S05-0608-CR-305.

Supreme Court of Indiana.

June 20, 2007.

Richard Kammen, Gilroy, Kammen & Hill, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0504-CR-234.

RUCKER, Justice.

We granted transfer in this case to address the question of whether a criminal defendant who pleads guilty to an offense has a right to make a statement in allocution prior to sentencing. The answer is yes.

Facts and Procedural History

On January 14, 2004, while present at the home of his girlfriend Jessica Powell, Nicholas Biddinger became engaged in an argument with three people who were there visiting. The argument escalated. Ultimately Biddinger produced a handgun and fired a shot that struck the chest of one of the visitors, Kris Holzhausen, who died as a result. Biddinger was arrested and later charged with murder, aggravated battery a Class B felony, battery as a Class C felony, criminal recklessness as a Class D felony, and pointing a firearm as a Class D felony. A jury trial began on October 2, 2004. In the middle of trial Biddinger reached an agreement with the State by which he would plead guilty to the aggravated battery charge and in exchange the State would dismiss the remaining charges. The agreement also provided, "Parties will be free to argue their respective positions as to sentencing. There shall be a range of executed time the Court may impose, from ten (10) to twenty (20) years." App. at 57.

A sentencing hearing lasting several hours was conducted on January 28, 2005. After calling a number of witnesses Biddinger's counsel answered "no" to the question of whether he had "any other mitigation evidence to present on the issue of sentencing." Tr. at 958. However counsel added, "Mr. Biddinger at an appropriate time would like to make a statement." Id. at 957-58. After discussing a few preliminary matters, the trial court instructed Biddinger: "raise your right hand" to be sworn. Id. at 960. Counsel interjected that "this is just allocution." Id. After an extended colloquy between the trial court and counsel, including a discussion of whether the State had a right to cross-examine Biddinger, the trial court noted that Biddinger had "no right to allocution where he's pled guilty." Id. at 965. The trial court also determined that whether the State would be afforded the opportunity to cross-examine Biddinger depended upon what he had to say. Id. Arguing that the trial court's ruling improperly restricted Biddinger's right of allocution, counsel moved to "file under seal" a four-page handwritten statement that Biddinger would have read in its entirety if he had been given the opportunity to do so. Id. at 966. Over the State's objection the statement was introduced into evidence and accepted by the trial court as an offer of proof. Biddinger then gave an oral statement expressing his remorse. Finding the existence of five aggravating factors and five mitigating factors, and determining that the aggravators outweighed the mitigators, the trial court sentenced Biddinger to twelve years in the Department of Correction with two years suspended to probation for a total executed term of ten years.

Biddinger appealed raising several issues, including the alleged trial court error in refusing to permit him to make a statement in allocution and that the sentence the trial court imposed was inappropriate in light of the nature of the offense and the character of the offender.¹ The Court of Appeals declined to address this latter claim.² As for the former claim, the court concluded that even if the trial court erred in refusing to permit Biddinger to make a statement in allocution, the error was harmless because the full written statement that was introduced into evidence contained no additional information that would have affected his sentence. Biddinger v. State, 846 N.E.2d 271, 277 (Ind. Ct.App.2006). In the process of resolving this issue, however, the Court of Appeals expressly declined to address whether case authority declaring there is no right of allocution upon a plea of guilty is still good law. We granted transfer to address this issue.³

Discussion

I.

Commonly known as the "right of allocution," the opportunity at sentencing for criminal defendants to offer statements in their own behalf before the trial judge pronounces sentence is rooted in the common law. We have previously observed that the right generally presents itself as follows:

The trial is over, the jury has reached a verdict and the accused is guilty of the crime with which he was charged. Now he stands at the bar of justice, a prisoner, and the judgment of the law is to be pronounced. But, before the court decrees the inexorable legal consequences which necessarily follow the finding of guilt, the court formally addresses the prisoner, informs him of the jury's verdict and directly puts the interrogatory, "Do you know of any reason why judgment should not be pronounced upon you?"

Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996) (quoting Paul W. Barrett, Allocution, 9 Mo.L.Rev. 115, 115 (1944)). This common law right of allocution was first codified in this state in 1905.⁴ Over the years the statute has been recodified or amended several times.⁵ In its present incarnation the statute provides:⁶

When the defendant appears for sentencing, the court shall inform the defendant of the verdict of the jury or the finding of the court. The court shall afford counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant may also make a statement personally in the defendant's own behalf and, before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement. Sentence shall then be pronounced, unless a sufficient cause is alleged or appears to the court for delay in sentencing.

I.C. § 35-38-1-5(a).

Over a quarter century ago, interpreting a nearly identically worded provision,⁷ the Court of Appeals concluded, "The clear import of the statute is that the right of allocution applies only where a defendant has entered a plea of not guilty and a trial has occurred resulting in a verdict or finding of guilty. Hence the draftsmen chose the words `verdict of the jury or the finding of the court' to delineate the range of the statute's application. If the Legislature had intended to expand the scope of allocution to include guilty pleas, it could have easily done so." Minton v. State, 400 N.E.2d 1177, 1179 (Ind.Ct.App.1980) (refusing to vacate or remand the defendant's plea of guilty because the defendant was not given an opportunity at sentencing to offer a statement in his own behalf). Five years later in another case involving a guilty plea, and citing Minton in support, this Court rejected a claim of trial court error in not affording the defendant the right of allocution. We said, "Appellant argues that the trial court erred in not giving him the right of allocution prior to the pronouncement of sentencing. This was not error because there is no right of allocution upon a plea of guilty." Fuller v. State, 485 N.E.2d 117, 122 (Ind.1985). Thereafter in Devore v. State, 658 N.E.2d 657 (Ind.Ct.App.1995), where the defendant had pleaded guilty to eighteen counts of child molesting, the Court of Appeals rejected a claim that the trial court erred in limiting the defendant's right to make a statement at his sentencing hearing. Citing Fuller and Minton, the court reiterated that a "defendant is not entitled to make a statement when he pleads guilty." Id. at 660. It is upon this weight of authority that the trial court in the instant case determined that Biddinger was not entitled to give a statement in allocution.

This Court's most recent explication of a defendant's statutory right of allocution has a significant bearing on the case before us. In Vicory v. State, 802 N.E.2d 426 (Ind.2004), we decided as a matter of first impression that such right should apply to probation revocation hearings. Relying upon the version of the allocution statute applicable to the instant case Vicory argued that he was entitled to make a statement during his revocation hearing. The relevant portion of the statute provided "the defendant may ... make a statement personally on his own behalf and, before pronouncing sentence, the court shall ask him whether he wishes to make such a statement." Id. at 428 (quoting I.C. § 35-38-1-5 (1983)). We acknowledged that the trial court did not "pronounce a sentence" within the meaning of the statute but rather the trial court decided that the previously suspended sentence should be executed. We then held:

Because the court does not "pronounce a sentence" at a probation revocation hearing, the judge is not required to ask the defendant whether he wants to make a statement, as provided by Indiana Code § 35-38-1-5. But when the situation presents itself in which the defendant specifically requests the court to make a statement, as it did here, the request should be granted.

Id. at 429. Significantly, our decision was informed by Article 1, Section 13 of the Indiana Constitution which provides in part, "In all criminal prosecutions, the accused shall have the right . . . to be heard by himself and counsel." We also observed that the "Indiana Constitution places a unique value upon the desire of an individual accused of a crime to speak out personally in the courtroom and state what in his mind constitutes a predicate for his innocence of the charges." Id. at 429 (internal quotations omitted).

The rationale for determining that the right of allocution applies in probation revocation proceedings is no less compelling in sentencing hearings where a defendant has...