Michael L. Townsend v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Oct 10 2017, 9:31 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bernice A. N. Corley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael L. Townsend, October 10, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1704-CR-664
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marshelle D.
Appellee-Plaintiff. Broadwell, Magistrate
Trial Court Cause No.
49G17-1702-F6-4890
Mathias, Judge.
[1] Michael Townsend (“Townsend”) was sentenced in Marion Superior Court to
180-days in community corrections with 176 days suspended to probation. The
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only issue on appeal is whether the trial court denied Townsend his right to
allocution at his sentencing hearing.
[2] We affirm.
Facts and Procedural History
[3] On February 6, 2017, the State charged Townsend with two counts of Level 6
felony domestic battery, two counts of Class A misdemeanor battery, and one
count of Class A misdemeanor interference with the reporting of a crime.1 At
the conclusion of a bench trial on March 2, 2017, the trial court found
Townsend guilty of all charges. One week later, the trial court held a sentencing
hearing. At the hearing, and prior to argument from counsel, the following
exchange occurred:
[Court]: And, with respect to Mr. Townsend, did he have
evidence?
[Counsel]: Judge, he does not want to give a statement or
testify, but I do have some summary, if I could
make that summary on his behalf.
[Court]: Okay, is- as argument, or?
[Counsel]: I can do it as part of argument.
[Court]: Okay, we’ll let the State proceed then. So, sir,
you’re saying that you’re giving up your right to
make a statement at this time?
[Townsend]: Yes.
[Court]: Okay. All right, go ahead, State.
1
The State later added two counts of Class A misdemeanor domestic battery, the lesser included offenses of
the Level 6 felony domestic battery charges.
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Tr. Vol. III, p. 5.
[4] At the end of the sentencing hearing, the trial court sentenced Townsend to
concurrent 180-day sentences on each conviction in community corrections
with 176 days suspended to probation. Townsend now appeals.
Discussion and Decision
[5] Townsend claims that the trial court denied him the right to allocution. The
right to allocution is “the opportunity at sentencing for criminal defendants to
offer statements in their own behalf before the trial judge pronounces sentence.”
Biddinger v. State, 868 N.E.2d 407, 410 (Ind. 2007). This right has existed at
common law since 1682 and was first codified in Indiana in 1905. Jones v. State,
79 N.E.3d 911, 914 (Ind. Ct. App. 2017). The current enactment of our
allocution statute provides:
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.
Ind. Code § 35-38-1-5.
[6] Our supreme court has explained, “In Indiana, the purpose of the right of
allocution is to give the trial court the opportunity to consider the facts and
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circumstances relevant to the sentencing of the defendant in the case before it.”
Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996). As long as a defendant is
provided with the opportunity to explain his view of the facts and
circumstances, the purpose of the right of allocution has been accomplished.
Vicory v. State, 802 N.E.2d 426, 430 (Ind. 2004). On appeal, “a defendant
claiming that he was denied his right to allocution carries a strong burden in
establishing his claim.” Id. at 429 (internal citations omitted).
[7] Townsend argues that “the trial court was obligated to advise Townsend of his
right of allocution at the sentencing hearing but did not.”2 Appellant’s Br. at 7
(emphasis in original). We disagree.
[8] Townsend cites to our recent decision in Jones v. State to support his argument.
79 N.E.3d 911. In that case, we concluded that the trial court committed
fundamental error by failing to directly inquire whether Jones wished to
exercise his right of allocution. Id. at 917. The entirety of the colloquy about
Jones’s interest in exercising his right of allocution was as follows:
[Court]: Does your client wish to execute his right of allocution?
2
Townsend also urges us that “[t]he right of allocution, like the right to the trial by jury, should require the
trial court to give the defendant an advisement, which would establish a record that the defendant’s waiver
was knowing, voluntary, and intelligent.” Appellant’s Br. at 8. We decline to extend such a requirement and
decline to equate the right of allocution with the right to a jury trial. Our supreme court has referred to the
right to a jury trial as “a bedrock of our criminal justice system” which is specifically guaranteed by our state
and federal constitutions. Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016). We cannot say the same for the
right of allocution.
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[Counsel]: No, Judge.
Id. at 916. Jones himself was not personally addressed, and we explained, “It is
loss of the opportunity to engage in or personally waive the opportunity for
allocution that is the harm to be cured here.” (emphasis added).
[9] The “harm” recognized in Jones is simply not before us here. Townsend was
asked directly and personally by the trial court about his desire to make a
statement. Tr. Vol. III, p. 5. Immediately after Townsend’s counsel notified the
trial court that Townsend did not wish to make a statement, the following
exchange took place:
[Court]: So, sir, you’re saying that you’re giving up your
right to make a statement at this time?
[Townsend]: Yes.
Id.
[10] Unlike the defendant in Jones, the purpose of the statute here was served.
Townsend was provided with “the opportunity to engage in or personally waive
the opportunity for allocution,” Jones, 79 N.E.3d at 917, and he personally
made the decision to waive that right. See Ross, 676 N.E.2d at 344 (holding that
“the trial court should unambiguously address the defendant and leave no
question that the defendant was given an opportunity to speak on his own
behalf.”). This is not a situation where the defendant was never informed of his
right of allocution. Cf. Owens v. State, 69 N.E.3d 531, 534 (Ind. Ct. App. 2017)
(ruling the trial court erred when it failed to advise Owens of his right to speak
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on his own behalf, or provide Owens with any opportunity to make a
statement). Townsend was advised of his right to allocution, and he explicitly
declined to exercise it. Accordingly, we find no error.
[11] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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