Minton v. State, 3-279

• Docket Nº: No. 3-279
• Citation: 400 N.E.2d 1177
• Case Date: March 03, 1980
• Court: Court of Appeals of Indiana

Page 1177

400 N.E.2d 1177 Phillip Ray MINTON, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 3-279 A 51. Court of Appeals of Indiana, Third District. March 3, 1980.

Page 1178

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:

Page 1179

"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...