Minton v. State
Decision Date | 03 March 1980 |
Docket Number | No. 3-279,3-279 |
Parties | Phillip Ray MINTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). A 51. |
Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, Robert H. Hendren, Deputy Public Defender, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Phillip Ray Minton was charged by information with first-degree burglary and subsequently pleaded guilty to that charge. He was sentenced to a term of not less than ten nor more than twenty years. His sole allegation of error is that the trial court erred in denying his petition for post-conviction relief insofar as the record of the proceedings demonstrates that he was not given an opportunity at sentencing to offer a statement in his own behalf prior to pronouncement of the sentence. 1 As a consequence of this alleged omission he urges that either his guilty plea ought to be vacated or that the case be remanded for resentencing.
A defendant who suggests that he was denied his right to allocution bears a heavy burden in establishing his claim. In Lillard v. State (1898), 151 Ind. 322, 50 N.E. 383, a reversal was prayed for because the record did not show that the trial court, before pronouncing its judgment sentencing the defendant, informed him in regard to the verdict and called upon him to show legal cause why judgment should not be pronounced. It was held:
Here the record belies the defendant's contention that he was denied any alleged right to allocution at sentencing. An order book entry in the transcript recites "State of Indiana, by Arnold H. Duemling, Prosecuting Attorney, the defendant, Phillip Ray Minton, in person and by counsel, Larry Busick, and the said defendant now being asked if he has anything to say why sentence should not be pronounced, gives no sufficient reason."
It is fundamental that courts speak only through their records. Taylor, Admr. v. Butt et al. (1972), 154 Ind.App. 196, 289 N.E.2d 159. Moreover on appeal the record is conclusive and imports absolute verity. 2 So. Ind. Gas v. Decker et al. (1974), 261 Ind. 527, 307 N.E.2d 51.
The instant case provides a more compelling situation for affirmance than Lillard since here there is at least an order book entry indicating that the right of allocution was afforded the defendant prior to sentencing. Nothing appearing to the contrary, the defendant has failed to make the required showing.
In any event it is apparent that the defendant was not entitled to allocution since he pleaded guilty to the charge. The pertinent statute, IC 1971, 35-4.1-4-5 (Burns Code Ed.) (compiled at 35-50-1A-5 (Burns 1979 Repl.)), reads as follows:
The clear import of this 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. For example, the opening section of the chapter wherein the present allocution statute appears was amended to read as follows:
(Emphasis added)
The prior act, Acts 1905, ch. 169, § 290, p. 584 (§ 9-2201, Burns 1956 Repl.) had provided:
"After a finding or verdict of guilty, against the defendant, if a new trial be not granted, or the judgment be not arrested, the court must pronounce judgment." (Emphasis added)
While the Legislature saw fit in 1975 to include the words "plea of guilty" to the language of IC 1971, 35-4.1-4-1 (compiled at 35-50-1A-1) it did not add those same words to the present allocution statute, IC 1971, 35-4.1-4-5 (compiled at 35-50-1A-5) when it amended that act in 1975. The courts will not add something to a statute that the Legislature has purposely omitted. Town of Schererville v. Vavrus (1979), Ind.App., 389 N.E.2d 346.
Particularly persuasive in this regard is Penn v. State (1961), 242 Ind. 359, 179 N.E.2d 283 (on rehearing) where the Indiana Supreme Court construed the 1905 allocution statute which provided:
There it was held:
...
To continue reading
Request your trial-
Haynes v. State
...Record at 57. This Court has recently held that "on appeal the record is conclusive and imports absolute verity." Minton v. State (1980), Ind.App., 400 N.E.2d 1177, 1179. The record contradicts Haynes' bare assertion that a hearing was not held on his motion. If Haynes believed the record t......
-
Strack v. State
...the right to allocution "carries a strong burden" in establishing the claim. Vicory , 802 N.E.2d at 429 (citing Minton v. State , 400 N.E.2d 1177, 1178 (Ind. Ct. App. 1980) ). Article 1, Section 13 of the Indiana Constitution provides: "In all criminal prosecutions, the accused shall have t......
-
Strack v. State
...denied the right to allocution "carries a strong burden" in establishing the claim. Vicory, 802 N.E.2d at 429 (citing Minton v. State, 400 N.E.2d 1177, 1178 (Ind.Ct.App. 1980)). Article 1, Section 13 of the Indiana Constitution provides: "In all criminal prosecutions, the accused shall have......
-
Strack v. State
... ... p. 15, and that ... this right finds roots in the Indiana Constitution. A ... defendant claiming that he was denied the right to allocution ... "carries a strong burden" in establishing the ... claim. Vicory , 802 N.E.2d at 429 (citing Minton ... v. State , 400 N.E.2d 1177, 1178 (Ind.Ct.App. 1980)) ... Article 1, Section 13 of the Indiana Constitution provides: ... "In all criminal prosecutions, the accused shall have ... the right ... to be heard by himself and counsel." ... Indeed, "[t]he Indiana ... ...