Strack v. State, Court of Appeals Case No. 21A-CR-922

Docket NºCourt of Appeals Case No. 21A-CR-922
Citation178 N.E.3d 1253
Case DateNovember 29, 2021
CourtCourt of Appeals of Indiana

178 N.E.3d 1253

Cole G. STRACK, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-922

Court of Appeals of Indiana.

FILED November 29, 2021

Attorney for Appellant: Stacy R. Uliana, Bargersville, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

178 N.E.3d 1257

Case Summary

1] Cole Strack pleaded guilty to operating a vehicle while intoxicated and possession of marijuana, and the trial court sentenced him to six years. Strack argues that he was denied his right to allocution and that the trial court abused its discretion by excluding pertinent evidence and by failing to afford mitigating weight to Strack's plea of guilty without the benefit of a plea agreement. We conclude that the trial court committed no reversible error and, accordingly, affirm.


[2] Strack raises the following four issues:

I. Whether the trial court denied Strack his right to allocution.

II. Whether the trial court abused its discretion by excluding evidence pertaining to the impact Strack's incarceration would have on his daughter.

III. Whether the trial court abused its discretion by failing to find that Strack's plea of guilty without a plea agreement was entitled to mitigating weight.

IV. Whether the cumulative effect of the trial court's alleged errors warrants remand for reconsideration of the sentence.


[3] On March 26, 2020, Officer Russ Mounsey of the Ossian Police Department initiated a traffic stop of Strack's car because of an inoperable license plate light. Officer Mounsey could smell alcohol as he spoke to the occupants—Strack and a female passenger. Strack's toddler-aged daughter was also in the car. Officer Mounsey asked if anyone had been drinking. Strack admitted to consuming several beers. Officer Mounsey requested that Strack participate in field sobriety tests, and Strack agreed. As Strack stepped out of the vehicle, Officer Mounsey observed marijuana in the driver's side door pocket. Strack admitted to possessing the marijuana.

[4] Strack failed the field sobriety tests. Officer Mounsey arrested Strack for operating a vehicle while intoxicated ("OWI"). Strack was taken to a hospital where a chemical test revealed the presence of marijuana metabolites in his blood. Shortly thereafter, a breath test revealed that Strack had a .098 blood-alcohol content. The State charged Strack on March 27, 2020, with Count I, OWI, a Level 6 felony, and pursued a habitual vehicular substance offender ("HVSO") enhancement.1 The State further charged Strack with Count II, operating a vehicle with an ACE of .08 or more, a Class C misdemeanor, and Count III, possession of marijuana, a Class B misdemeanor. On June 5, 2020, the State added Count IV, operating a vehicle with a controlled substance in the blood with a prior offense, a Level 6 felony.

[5] On November 19, 2020, the State charged Strack with domestic battery as a

[178 N.E.3d 1258

result of an altercation between Strack and Strack's girlfriend. The State also filed a petition to revoke Strack's bond in the instant matter, and Strack was arrested for violating the terms of his pre-trial release.

6] On March 11, 2021, Strack entered a guilty plea to all charges without the benefit of a plea agreement. The trial court held a sentencing hearing on April 22, 2021. During the testimony of Strack's mother, Strack's counsel attempted to elicit evidence pertaining to Department of Child Services ("DCS") investigations regarding Strack's daughter and her mother. The State objected, and the trial court excluded the evidence, reasoning that Strack's mother lacked personal knowledge and that the substance of DCS investigations is "confidential." Tr. Vol. II pp. 28-29. Following the testimony of Strack's parents, the following colloquy occurred between Attorney Eric Orr, the State, and the court:
MR. ORR: Would you permit me to present Cole's facts in summation, Your Honor?

THE STATE: What do you mean Cole's facts in summation?

THE COURT: His facts?

MR. ORR: The facts I, I was going to ask him about and have, he's, he's nervous today as can be ....

THE STATE: Judge, the State would, the State wants to be able to cross exam, if he's going to testify and present evidence, the State's going to cross it.

MR. ORR: Why, I understand that they wouldn't lose their right to cross examine him.

THE STATE: Judge, he can testify. He's got to establish the evidence.

THE COURT: Yeah, if your client has anything to say he needs to testify.

MR. ORR: Certainly, Your Honor. I'd like to call Cole, Cole Strack.

Id. at 40 (emphasis added).

[7] Strack testified, among other things, that he believed it would be a hardship to his daughter if Strack was incarcerated. Strack expressed remorse and a commitment to bettering himself in the future. The State cross-examined Strack and, over objection, elicited testimony pertaining to facts in Strack's domestic battery case. Strack admitted that he drank several beers on the date of the alleged battery. Though Strack described his devotion to his daughter, he further acknowledged that he put his daughter in danger by having her in the car when he got behind the wheel the night of said arrest. Strack was also offered an opportunity to speak subsequent to his testimony, of which he took full advantage.

[8] The trial court found two aggravating factors—that Strack violated his pretrial release and that Strack had a criminal history—and no mitigating factors.2 The

[178 N.E.3d 1259

trial court sentenced Strack to two years for the OWI conviction enhanced by four years due to the HVSO status, as well as 180 days to run concurrently for the possession of marijuana conviction. The trial court then suspended two years to probation. Strack was, thus, sentenced to a total of six years with two years suspended to probation. The trial court dismissed Counts II and IV for double jeopardy reasons. Strack now appeals.


I. Allocution

9] Strack argues that the trial court denied his right to allocution. Black's Law Dictionary provides the following two definitions of allocution:
1. A trial judge's formal address to a convicted defendant, asking whether the defendant wishes to make a statement or to present information in mitigation of the sentence to be imposed ....

2. An unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. This statement is not subject to cross-examination.

Allocution, BLACK'S LAW DICTIONARY (11th ed. 2019). This opportunity to speak is derived from over three centuries of common law. Vicory v. State , 802 N.E.2d 426, 428 (Ind. 2004) (citing Ross v. State , 676 N.E.2d 339, 343 (Ind. 1996) ).

[10] Indiana has codified this common-law right to be heard in several ways. Indiana Code Section 35-38-1-5, for example, provides that:

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.

[11] Our precedent holds, however, that the statutory right to allocution does not apply when a defendant pleads guilty, as Strack did here. See, e.g. , Jones v. State , 79 N.E.3d 911, 914-15 (Ind. Ct. App. 2017) (citing Biddinger v. State , 868 N.E.2d 407, 412 (Ind. 2007) ). A defendant who has undergone a trial may have maintained his right to remain silent throughout. Thus, the sentencing hearing may represent the first opportunity for such a defendant to address a trial court. This is not so for a defendant like Strack, who pleaded guilty. Thus, Strack does not argue that he was entitled to allocution pursuant to Indiana Code Section 35-38-1-5.

[12] Rather, Strack argues that a violation of his right to make a statement without being subject to cross-examination was a due process violation, Appellant's Br. 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,

[178 N.E.3d 1260

"[t]he 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.’ " Vicory , 802 N.E.2d at 429 (quoting Sanchez v. State , 749 N.E.2d 509, 520 (Ind. 2001) ). With a guilty plea, the opportunity for the defendant to speak to his innocence is not...

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