Minton v. State

Decision Date03 March 1980
Docket NumberNo. 3-279,3-279
PartiesPhillip Ray MINTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). A 51.
CourtIndiana 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.

HOFFMAN, Judge.

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:

"If the lower court, however, failed to discharge its duty towards the defendant in the manner required by the statute in not informing him of the verdict, and calling upon him to show cause, if any he had, the burden is upon him, on appeal, to affirmatively show such failure by the record; and, in the absence of such showing, we must, under the well-affirmed rule, presume that the trial court discharged its duty as the law exacted. The mere silence of the record, as in the case at bar, does not suffice to present the question which appellant seeks to have reviewed under his third assignment of error."

50 N.E. at 385-386.

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:

"When the defendant appears for sentencing, he shall be informed by the court 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 his own behalf and, before pronouncing sentence, the court shall ask him whether he wishes to make such a statement. Sentence shall then be pronounced unless a sufficient cause be alleged or appear to the court for delay in sentencing."

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:

"(a) After a verdict, finding or plea of guilty, if a new trial is not granted, the court shall enter a judgment of conviction. Motions in arrest of judgment are hereby abolished. All issues previously raised by motion in arrest of judgment must be raised by motion to dismiss pursuant to section 35-3.1-1-4 of the code of criminal procedure." (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:

" 'When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he have any legal cause to show why judgment should not be pronounced upon him.'

Acts 1905, ch. 169, § 294, p. 584 (§ 9-2205, Burns 1956 Repl.)."

There it was held:

"The statute does not have application under a circumstance...

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11 cases
  • Haynes v. State
    • United States
    • Indiana Appellate Court
    • October 27, 1980
    ...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
    • United States
    • Indiana Appellate Court
    • November 29, 2021
    ...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
    • United States
    • Indiana Appellate Court
    • November 29, 2021
    ...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
    • United States
    • Indiana Appellate Court
    • November 29, 2021
    ... ... 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 ... ...
  • Request a trial to view additional results

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