Jones v. State
| Decision Date | 12 June 2017 |
| Docket Number | Court of Appeals Case No. 49A02-1611-CR-2513 |
| Citation | 79 N.E.3d 911 |
| Parties | Ivan JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant : Deborah Markisohn, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Christina D. Pace, Deputy Attorney General, Indianapolis, Indiana
[1] After a bench trial, Jones was convicted of Battery, as a Level 5 felony.1 He admitted to his status as a habitual offender.2 Jones was subsequently sentenced to five years imprisonment, including a three- year habitual offender enhancement. He now appeals.
[2] We reverse and remand.
[3] Jones raises a single issue for our review, which we restate as whether the trial court committed reversible error when it did not ask Jones directly whether he wished to exercise his right of allocution at sentencing, instead making that inquiry through counsel.
[4] On the night of September 11, 2015, Jones was walking along the 3000 block of Rybolt Avenue in Indianapolis. Jones was intoxicated to the point that his walk was unsteady, and he was carrying a bottle containing an alcoholic beverage.
[5] At around 11:00, Jones encountered four teenagers walking down the street: Wesley Hardcastle ("Hardcastle"), Tyler Pruitt ("Pruitt"), Hardcastle's girlfriend, and another teenage girl. Jones approach the four teenagers and began talking to them. At some point, Jones made a statement that caused Hardcastle and Pruitt to encourage their companions to go home.
[6] Soon after this, Jones punched Hardcastle in the face, striking Hardcastle in the lip and chin. Hardcastle punched Jones back, striking Jones in the nose. Jones then pulled a knife out of his pocket and stabbed Hardcastle's forearm, causing a through-and-through wound
. Hardcastle and Pruitt ran to Hardcastle's girlfriend's home and called police. Medics treated Hardcastle's arm and then transported him to a hospital by ambulance.
[7] When police arrived, Pruitt directed police to a house two doors down, toward which he had seen Jones run. Jones's mother permitted police inside. Police officers found Jones wearing clothing with dried blood and in possession of an old pocket knife that appeared to have dried blood on it. Jones was subsequently arrested.
[8] On September 15, 2015, Jones was charged with Battery, as a Level 5 felony. On August 3, 2016, the State alleged that Jones was a habitual offender.
[9] On September 21, 2016, a bench trial was conducted on the Battery charge. At the conclusion of the trial, the court found Jones guilty as charged. The proceedings were then bifurcated for purposes of obtaining a presentence investigation report.
[10] On October 19, 2016, a hearing was conducted during which Jones admitted to being a habitual offender, in exchange for which the State agreed to a maximum sentence enhancement of three years to be added to whatever term of imprisonment the court fixed for the Battery conviction. Prior to hearing argument of counsel, the trial court asked counsel for Jones whether Jones wished to exercise his right of allocution. Jones's counsel said that Jones did not wish to make a statement, and the court then heard argument of the parties concerning sentencing. At the end of the hearing, the trial court sentenced Jones to two years imprisonment for the Battery charge, enhanced by the agreed-to three year term for Jones's habitual offender status, yielding an aggregate term of imprisonment of five years.
[11] This appeal ensued.
[12] Jones challenges his sentence on one basis: he contends that the trial court erred when it did not directly ask him whether he wished to exercise his right of allocution at sentencing.
[13] The current enactment of our state's allocution statute provides:
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.
[14] A defendant's right of allocution has existed at common law since 1682, Ross v. State , 676 N.E.2d 339, 343 (Ind. 1996), and was first codified in Indiana in 1905. Biddinger v. State , 868 N.E.2d 407, 410 (Ind. 2007). Allocution is thus tied through tradition and legislative enactment to a defendant's other due process rights. The opportunity to exercise the right of allocution "generally presents itself as a pre-sentencing procedure." Vicory v. State , 802 N.E.2d 426, 429 (Ind. 2004). " ‘The purpose of the right of allocution is to give the trial court the opportunity to consider the facts and circumstances relevant to the sentencing of the defendant in the case before it.’ " Id. (quoting Ross , 676 N.E.2d at 343 ). The right of allocution was intended not to provide an opportunity for the court "to ‘seek mitigating evidence or a plea for leniency.’ " Id. (quoting Minton v. State , 400 N.E.2d 1177, 1180 (Ind. Ct. App. 1980) ). Rather, the right exists " ‘to give the defendant a formal opportunity to show any one of the strictly defined legal grounds for avoidance or delay of the sentence.’ " Id. The Indiana Supreme Court quoted with approval this description of allocution:
The trial is over, the jury has reached a verdict and the accused is guilty of the crime with which he was charged... 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 , 676 N.E.2d at 343 (quoting Paul W. Barrett, Allocution , 9 Mo. L. Rev. 115 (1944)).
[15] The purpose of the right of allocution is satisfied "[w]hen the defendant is given the opportunity to explain his view of the facts and circumstances." Vicory , 802 N.E.2d at 426. The right to allocution is " ‘minimally invasive,’ " requiring only " ‘a few moments of court time.’ " Id. at 429 (quoting United States v. Barnes , 948 F.2d 325, 331 (7th Cir. 1991) ). But on appeal, "a defendant claiming that he was denied his right to allocution carries a strong burden in establishing his claim." Id.
[16] Jones contends that his right of allocution was denied because the trial court asked Jones's counsel whether Jones intended to speak before sentencing, rather than asking Jones himself. The State argues that Jones lacked any right of allocution at all because, though he proceeded to trial on the underlying Battery conviction, he pled guilty to being a Habitual Offender and thus waived his right. Because Jones thus lacked a statutory right of allocution, the State contends, there was no deprivation of any right.
[17] When a case proceeds to trial and either a jury verdict or a trial court's finding results in the defendant's conviction, a statutory right to allocution exists, but no such statutory right exists for a defendant who enters a guilty plea or to defendants in probation revocation proceedings. Biddinger , 868 N.E.2d at 412. The Indiana Supreme Court has held that although no statutory right to allocution exists in probation revocation proceedings and sentencing hearings following a guilty plea, it is error for a trial court to deny the defendant's request where a defendant directly seeks to exercise the right to allocution. Id. (citing Ind. Const. art. I, § 13 ; Vicory , 802 N.E.2d at 429 ). Error in such cases may, however, be harmless. Id. (); Vicory , 802 N.E.2d at 430 (citing Ind. Trial Rule 61 ) ( that because the defendant had testified earlier in a probation revocation hearing, "the court's refusal [to allow the defendant to exercise the right of allocution] did not affect his substantive rights such that reversal is warranted").
[18] We disagree with the State's contention that Jones lacked a statutory right of allocution because of Jones's admission of his habitual offender status. Jones's admission of his status had as its predicate a guilty "finding of the trial court," I.C. § 35-38-1-5, and the State acknowledges as much. The State suggests that Jones's admission to a status that serves to enhance his sentence mooted the effect of his bench trial on the underlying criminal charge, characterizing as "unclear" whether and how the statutory right of allocution might apply. (Appellee's Br. at 11.) We think it far from unclear: the underlying offense of which Jones was convicted was the result of a trial to the court, and the statute's language is mandatory with respect to defendants who proceed to trial. We accordingly conclude that Jones did not waive his right of allocution.
[19] Having found no waiver, we turn to whether Jones was deprived of his statutory right of allocution. Jones likens the statutory right of allocution to the statutory provision that sets forth a procedure for waiver of a jury trial, in that in both cases the court must communicate personally with the defendant before proceeding.
[20] The allocution statute provides that the court "shall" provide defense counsel an opportunity to make a statement, provides separately that the defendant "may" give a statement, and goes on to require that the court ...
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