Vicory v. State
| Decision Date | 29 January 2004 |
| Docket Number | No. 49S05-0304-CR-00153.,49S05-0304-CR-00153. |
| Parties | Chad E. VICORY, Appellant (Defendant below), v. STATE of Indiana. Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Kurt Young Nashville, IN, Ann M. Sutton, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Office of the Attorney General, Indianapolis, IN, Attorneys for Appellee.
ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 49A05-0204-CR-165.
Chad Vicory had multiple problems complying with the terms of his probation, and the trial court held a hearing on a petition to revoke. The court heard evidence and argument and announced that probation was revoked. Vicory asked permission to read a statement, which the court declined. He now questions whether the right of allocution should extend to include probation revocation hearings. We hold that it should.
On October 4, 1999, the Marion Superior Court convicted Chad Vicory of sexual misconduct with a minor, a Class C felony. The court sentenced Vicory to six years with four years suspended and two years executed at the Department of Correction. The Court placed Vicory on probation after his release from incarceration.
The court ordered Vicory to enroll at AGAPE House, a halfway house. AGAPE House terminated his stay for a probation violation. The court gave Vicory two weeks to enter another halfway house, one of the conditions of his probation. Two probation officers spoke to Vicory about entering another halfway house, and he said he was accepted into another program but did not present any evidence to demonstrate that this was so. (R. at 4, 8, 9.)
On February 12, 2002, a petition to revoke Vicory's probation was filed, alleging that Vicory failed to comply with the AGAPE House program, maintain full-time employment, and submit to a urinalysis test. Vicory had said he was employed at a restaurant, but probation officer Melanie Payne learned that Vicory had been fired three weeks prior. Moreover, on February 7, 2002, Vicory did not report for a drug test when called because, according to him, he did not drive.
Finding that Vicory violated his probation, the court ordered his previously suspended sentence to be executed. It then asked Vicory if he wanted to appeal. Vicory responded by asking if he could read a statement. The court denied his request and asked Vicory again if he wished to appeal. Vicory replied affirmatively.
The Court of Appeals affirmed the trial court's decision and held that Vicory was not denied the right to allocution because he was not being "sentenced" under Ind. Code § 35-38-1-5. Vicory v. State, 781 N.E.2d 766, 769 (Ind.Ct.App.2003). The Court further noted that the right to allocution does not apply to probation revocation hearings. Id. We granted transfer.
In claiming that he was entitled to make a statement at his revocation hearing, Vicory relies on Indiana Code § 35-38-1-5, which says: "the defendant may ... make a statement personally on his own behalf and, before pronouncing sentence, the court shall ask him whether he wishes to make such a statement." Vicory argues that such statements give the court an opportunity to learn about his mental state, his view of the facts and circumstances that surround the violation, and affords him a chance to plead for leniency. (Appellant Br. at 5-10.) The State replies that Indiana does not recognize a right of allocution at a probation revocation hearing. (Appellee Br. at 2, 6.)
The State also asserts that Vicory waived his claim of error because he failed to object to the denial of his alleged right to allocution during the trial. It relies on Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct.App.1998), in which the Court of Appeals noted that a person cannot sit idly by, permit the trial court to make an error, and attempt to take advantage of the error at a later time. Once the court denied Vicory's request to read his statement, however, the right to appeal was properly preserved.
The common law recognized the right of allocution as early as 1682. Ross v. State, 676 N.E.2d 339, 343 (Ind.1996) ). The right of allocution generally presents itself as a pre-sentencing procedure and we have addressed the right of allocution in such settings.1 Whether one is entitled to the right to allocution during a probation revocation hearing, however, is an issue of first impression.
As the State correctly points out, at a probation revocation hearing, a sentence has already been imposed on a defendant but it has been suspended. (Appellee Br. at 3); see also Mingle v. State, 182 Ind. App. 653, 660, 396 N.E.2d 399, 405 (1979)
(). Vicory had already been sentenced to six years, with four years suspended. The trial court did not "pronounce a sentence" within the meaning of Indiana Code § 35-38-1-5 at the probation revocation hearing. Rather, it decided that the previously suspended sentence should be executed.
Because the court does not "pronounce a sentence" at a probation revocation hearing, the judge is not required to ask the defendant whether he wants to make a statement, as provided by Indiana Code § 35-38-1-5. But when the situation presents itself in which the defendant specifically requests the court to make a statement, as it did here, the request should be granted.
Article 1, section 13 of the Indiana Constitution provides in part: "In all criminal prosecutions, the accused shall have the right ... to be heard by himself and counsel." The 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." Sanchez v. State, 749 N.E.2d 509, 520 (Ind. 2001) (citing Campbell v. State, 622 N.E.2d 495, 498 (Ind.1993))2. As the Seventh Circuit has observed, "The right of allocution is minimally invasive of the sentencing proceeding; the requirement of providing the defendant a few moments of court time is slight." United States v. Barnes, 948 F.2d 325, 331 (7th Cir.1991). Notwithstanding, a defendant claiming that he was denied his right to allocution carries a strong burden in establishing his claim. Minton v. State, 400 N.E.2d 1177, 1178 (Ind.Ct.App.1980).
"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." Ross, 676 N.E.2d at 343. A probation revocation hearing is indeed relevant to the defendant's sentencing in that it reinstates an existing sentence that returns the offender back into the confined quarters of jail. Thus, we conclude that the right of allocution should apply to probation revocation hearings.
At common law, the right of allocution was not given to "seek mitigating evidence or a...
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