Ivan Jones v. State of Indiana ( 2017 )

FILED
Jun 12 2017, 9:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division Christina D. Pace
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ivan Jones, June 12, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2513
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
The Honorable Jeffrey Marchal,
Magistrate
Trial Court Cause No.
49G06-1509-F5-32928
Bailey, Judge.
Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017 Page 1 of 16
Case Summary
[1] After a bench trial, Jones was convicted of Battery, as a Level 5 felony.1 He
admitted to his status as a habitual offender.2 Jones was subsequently
sentenced to five years imprisonment, including a three-year habitual offender
enhancement. He now appeals.
[2] We reverse and remand.
Issue
[3] Jones raises a single issue for our review, which we restate as whether the trial
court committed reversible error when it did not ask Jones directly whether he
wished to exercise his right of allocution at sentencing, instead making that
inquiry through counsel.
Facts and Procedural History
[4] On the night of September 11, 2015, Jones was walking along the 3000 block of
Rybolt Avenue in Indianapolis. Jones was intoxicated to the point that his
1
Ind. Code § 35-42-2-1.
2
I.C. § 35-50-2-8.
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walk was unsteady, and he was carrying a bottle containing an alcoholic
beverage.
[5] At around 11:00, Jones encountered four teenagers walking down the street:
Wesley Hardcastle (“Hardcastle”), Tyler Pruitt (“Pruitt”), Hardcastle’s
girlfriend, and another teenage girl. Jones approach the four teenagers and
began talking to them. At some point, Jones made a statement that caused
Hardcastle and Pruitt to encourage their companions to go home.
[6] Soon after this, Jones punched Hardcastle in the face, striking Hardcastle in the
lip and chin. Hardcastle punched Jones back, striking Jones in the nose. Jones
then pulled a knife out of his pocket and stabbed Hardcastle’s forearm, causing
a through-and-through wound. Hardcastle and Pruitt ran to Hardcastle’s
girlfriend’s home and called police. Medics treated Hardcastle’s arm and then
transported him to a hospital by ambulance.
[7] When police arrived, Pruitt directed police to a house two doors down, toward
which he had seen Jones run. Jones’s mother permitted police inside. Police
officers found Jones wearing clothing with dried blood and in possession of an
old pocket knife that appeared to have dried blood on it. Jones was
subsequently arrested.
[8] On September 15, 2015, Jones was charged with Battery, as a Level 5 felony.
On August 3, 2016, the State alleged that Jones was a habitual offender.
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[9] On September 21, 2016, a bench trial was conducted on the Battery charge. At
the conclusion of the trial, the court found Jones guilty as charged. The
proceedings were then bifurcated for purposes of obtaining a presentence
investigation report.
[10] On October 19, 2016, a hearing was conducted during which Jones admitted to
being a habitual offender, in exchange for which the State agreed to a
maximum sentence enhancement of three years to be added to whatever term of
imprisonment the court fixed for the Battery conviction. Prior to hearing
argument of counsel, the trial court asked counsel for Jones whether Jones
wished to exercise his right of allocution. Jones’s counsel said that Jones did
not wish to make a statement, and the court then heard argument of the parties
concerning sentencing. At the end of the hearing, the trial court sentenced
Jones to two years imprisonment for the Battery charge, enhanced by the
agreed-to three year term for Jones’s habitual offender status, yielding an
aggregate term of imprisonment of five years.
[11] This appeal ensued.
Discussion and Decision
Nature of the Right of Allocution
[12] Jones challenges his sentence on one basis: he contends that the trial court
erred when it did not directly ask him whether he wished to exercise his right of
allocution at sentencing.
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[13] The current enactment of our state’s 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.
I.C. § 35-38-1-5.
[14] A defendant’s right of allocution has existed at common law since 1682, Ross v.
State, 676 N.E.2d 339, 343 (Ind. 1996), and was first codified in Indiana in
1905. Biddinger v. State, 868 N.E.2d 407, 410 (Ind. 2007). Allocution is thus
tied through tradition and legislative enactment to a defendant’s other due
process rights. The opportunity to exercise the right of allocution “generally
presents itself as a pre-sentencing procedure.” Vicory v. State, 802 N.E.2d 426,
429 (Ind. 2004). “‘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.’” Id. (quoting Ross, 676
N.E.2d at 343). The right of allocution was intended not to provide an
opportunity for the court “to ‘seek mitigating evidence or a plea for leniency.’”
Id. (quoting Minton v. State, 400 N.E.2d 1177, 1180 (Ind. Ct. App. 1980)).
Rather, the right exists “‘to give the defendant a formal opportunity to show
any one of the strictly defined legal grounds for avoidance or delay of the
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sentence.’” Id. The Indiana Supreme Court quoted with approval this
description of allocution:
The trial is over, the jury has reached a verdict and the accused is
guilty of the crime with which he was charged… But before the
court decrees the inexorable legal consequences which
necessarily follow the finding of guilt, the court formally
addresses the prisoner, informs him of the jury’s verdict and
directly puts the interrogatory, “Do you know of any reason why
judgment should not be pronounced upon you?”
Ross, 676 N.E.2d at 343 (quoting Paul W. Barrett, Allocution, 9 Mo. L. Rev. 115
(1944)).
[15] The purpose of the right of allocution is satisfied “[w]hen the defendant is given
the opportunity to explain his view of the facts and circumstances.” Vicory, 802
N.E.2d at 426. The right to allocution is “‘minimally invasive,’” requiring only
“‘a few moments of court time.’” Id. at 429 (quoting United States v. Barnes, 948
F.2d 325, 331 (7th Cir. 1991)). But on appeal, “a defendant claiming that he
was denied his right to allocution carries a strong burden in establishing his
claim.” Id.
Waiver
[16] Jones contends that his right of allocution was denied because the trial court
asked Jones’s counsel whether Jones intended to speak before sentencing,
rather than asking Jones himself. The State argues that Jones lacked any right
of allocution at all because, though he proceeded to trial on the underlying
Battery conviction, he pled guilty to being a Habitual Offender and thus waived
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his right. Because Jones thus lacked a statutory right of allocution, the State
contends, there was no deprivation of any right.
[17] When a case proceeds to trial and either a jury verdict or a trial court’s finding
results in the defendant’s conviction, a statutory right to allocution exists, but
no such statutory right exists for a defendant who enters a guilty plea or to
defendants in probation revocation proceedings. Biddinger, 868 N.E.2d at 412.
The Indiana Supreme Court has held that although no statutory right to
allocution exists in probation revocation proceedings and sentencing hearings
following a guilty plea, it is error for a trial court to deny the defendant’s request
where a defendant directly seeks to exercise the right to allocution. Id. (citing
Ind. Const. art. I, § 13; Vicory, 82 N.E.2d at 429). Error in such cases may,
however, be harmless. Id. (finding harmless error from an appeal after a guilty
plea where the defendant “fail[ed] to establish how the excluded portion of his
statement would have made a difference in the sentence the trial court
imposed.”); Vicory, 802 N.E.3d at 430 (citing Ind. Trial Rule 61) (holding that
because the defendant had testified earlier in a probation revocation hearing,
“the court’s refusal [to allow the defendant to exercise the right of allocution]
did not affect his substantive rights such that reversal is warranted”).
[18] We disagree with the State’s contention that Jones lacked a statutory right of
allocution because of Jones’s admission of his habitual offender status. Jones’s
admission of his status had as its predicate a guilty “finding of the trial court,”
I.C. § 35-38-1-5, and the State acknowledges as much. The State suggests that
Jones’s admission to a status that serves to enhance his sentence mooted the
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effect of his bench trial on the underlying criminal charge, characterizing as
“unclear” whether and how the statutory right of allocution might apply.
(Appellee’s Br. at 11.) We think it far from unclear: the underlying offense of
which Jones was convicted was the result of a trial to the court, and the statute’s
language is mandatory with respect to defendants who proceed to trial. We
accordingly conclude that Jones did not waive his right of allocution.
Inquiry with Counsel
[19] Having found no waiver, we turn to whether Jones was deprived of his
statutory right of allocution. Jones likens the statutory right of allocution to the
statutory provision that sets forth a procedure for waiver of a jury trial, in that
in both cases the court must communicate personally with the defendant before
proceeding.
[20] The allocution statute provides that the court “shall” provide defense counsel
an opportunity to make a statement, provides separately that the defendant
“may” give a statement, and goes on to require that the court “shall ask the
defendant whether the defendant wishes to make such a statement.” I.C. § 35-
38-1-5. The statute, then, clearly mandates that the trial court direct inquiries
concerning statements at the time of sentencing to both defense counsel and the
defendant personally.
[21] A similar requirement obtains with respect to a jury trial: “The defendant and
prosecuting attorney, with the assent of the court, may submit the trial to the
court. Unless a defendant waives the right to a jury trial under the Indiana
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Rules of Criminal Procedure, all other trials must be by jury.” I.C. § 35-37-1-2.
Indiana courts have interpreted the statute to require that the trial court speak
with the defendant personally—and not only through counsel—to ensure that
the defendant intends to waive the right to a jury trial. Horton v. State, 51
N.E.3d 1154, 1158 (Ind. 2016). In Horton, the Indiana Supreme Court
reiterated Indiana’s commitment to requiring that trial courts confirm
personally with a defendant the intent to waive a jury trial. Doing so, the court
declined the State’s request “to make a new personal-waiver exception where
circumstances nevertheless imply waiver was the defendant’s choice.” Id. at
1160. The court reiterated that the personal waiver requirement with respect to
a jury trial “eliminates an intolerable risk” that a defendant will be forced to a
bench trial against her or his will. Id. The Horton Court saw “no reason to
dilute our time-honored personal waiver requirement” given the “high stakes of
erroneous jury-trial deprivation and the low cost of confirming personal
waiver.” Id. Thus, as with the right of allocution, our courts have reaffirmed
the necessity of a personal waiver of a jury trial based in part upon the
efficiency of the inquiry relative to the risk of error. Compare id. with Vicory, 802
N.E.2d at 429 (characterizing as “minimally invasive” the necessary colloquy
between court and defendant concerning allocution).
[22] This Court has recently addressed the right of allocution after trial—that is,
allocution that falls squarely within the allocution statute in Section 35-38-1-5—
in Owens v. State, 69 N.E.3d 531 (Ind. Ct. App. 2017). Owens was arrested and
charged with misdemeanor-level carrying a handgun without a license, and was
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found guilty after a bench trial. Id. at 532. During an exchange with the trial
court concerning whether Owens was to be remanded to the Marion County
Jail or to Community Corrections following sentencing, Owens, through
counsel, requested an opportunity to elicit testimony from Owens concerning
his sentence—that is, Owens sought to exercise his right of allocution. Id. at
533. The trial court responded that it had already determined and announced
the terms of Owens’s sentence and did not permit Owens an opportunity for
allocution. Id.
[23] A panel of this Court reversed Owens’s sentence, resting its decision on the
language of the allocution statute. The Owens panel stated:
The trial court’s failure to allow Owens’s counsel to make a
meaningful sentencing statement, advise Owens of his right to
speak on his own behalf, or provide Owens an opportunity to
make a statement constitutes a clear denial of Owens’s right to
due process and an abdication of the trial court’s statutory
obligations.
Id. at 534. The court observed that the allocution statute makes it mandatory
that the trial court ask a defendant whether she or he wishes to speak at
sentencing, and reminded trial courts of “their statutory duty to afford criminal
defendants the rights that our General Assembly intended them to have during
sentencing.” Id. at 535. Notably, the Owens panel did not address questions of
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waiver, invited error, or harmless error, instead emphasizing the mandatory
nature of the allocution statute.3
[24] Turning to the case at bar, our review of the record discloses that the trial court
did not advise Jones directly of his right of allocution and that Jones did not
seek personally to make a statement. The totality of the colloquy about Jones’s
interest in exercising his right of allocution is as follows:
THE COURT: Does your client wish to execute his right of
allocution?
[COUNSEL]: No, Judge.
(Tr. at 104.) After this, the parties offered argument. Jones argues that this
procedure was flawed, and requests that we conclude that the trial court was
required to ask Jones personally whether he wished to exercise his right of
allocution. The State argues that the trial court’s procedure was proper and that
Jones’s failure to object at sentencing to the challenged procedure amounts to
waiver, so that we may reverse only upon a finding of fundamental error.
[25] In light of comparable mandatory statutory language in the allocution and jury
waiver statutes, the long tradition of both the jury and allocution rights, and the
low demand upon judicial resources of inquiring personally of the defendant
3
The parties’ briefs in Owens—of which we take judicial notice as part of this Court’s records, see Ind.
Evidence Rule 201(2)(C)—reflect argument over whether waiver or invited error existed. The opinion in
Owens does not address those arguments.
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relative to the risk of prejudice, we conclude that the trial court’s failure to
inquire personally with the defendant concerning allocution was error. We do
not think the nature of the right of allocution is such that a defendant suffers
waiver of the right unless he personally insists on speaking himself or gives
counsel a proverbial “kick under the table” to prevent being sentenced without
allocution. The statutory text does not suggest that such waiver should occur,
and indeed the allocution statute is more explicit about the personal nature of
the inquiry to be made by the trial court than is the jury trial statute. As to the
contention that fundamental error cannot exist in the absence of any
representation of what a defendant might have said had counsel not waived the
right on the defendant’s behalf, allocution is not an evidentiary matter or
otherwise subject to proof of prejudice upon offer of proof or appeal. It is loss
of the opportunity to engage in or personally waive the opportunity for
allocution that is the harm to be cured here—not deprivation of the opportunity
to say a particular thing.4
[26] The right of allocution is satisfied “[w]hen the defendant is given the
opportunity to explain his view of the facts and circumstances.” Vicory, 802
N.E.2d at 426. Jones was not afforded that opportunity in conformance with
the statute, which provides that the right to waive allocution is personal to the
4
It is difficult to see how a defendant could establish prejudice by providing a statement in an appellate brief
as to what he might have said had his counsel not waived allocution on his behalf. Whether a trial court
would have been persuaded by a statement upon allocution is not a typical evidentiary matter subject to the
harmless error analysis.
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defendant—not available for waiver by counsel. Thus we conclude that such
error was fundamental and mandates reversal of Jones’s sentence. 5
Conclusion
[27] Jones did not waive his right of allocution by admitting his habitual offender
status after a bench trial on an underlying criminal charge. The trial court’s
failure to inquire directly of Jones whether he wished to exercise his right of
allocution was fundamental error. We reverse and remand with instructions to
conduct a new sentencing hearing.
[28] Reversed and remanded.
Robb, J., concurs.
Vaidik, C.J., dissents with separate opinion.
5
The dissent would affirm on the theory that Jones waived his right of allocution, citing Angleton v. State, 714
N.E.2d 156 (Ind. 1999). Angleton is readily distinguishable on several grounds. Angleton appealed citing the
allocution statute after his second sentencing hearing, and during his first sentencing hearing, the court asked
whether he wished to exercise his right of allocution—this satisfied some minimal communication between
the court and Angleton as to his right of allocution. Moreover, Angleton had been a licensed attorney in
Indiana prior to his conviction for murder, and, at least during his appeal, proceeded pro se. Id. at 159. In
this case, Jones was being sentenced for the first time in the instant proceeding rather than being resentenced,
was not an attorney, and did not proceed pro se.
Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017 Page 13 of 16
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ivan Jones, June 12, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2513
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff Judge
The Honorable Jeffrey Marchal,
Magistrate
Trial Court Cause No.
49G06-1509-F5-32928
Vaidik, Chief Judge, dissenting.
[29] I respectfully dissent from the majority’s conclusion that the trial court’s failure
to personally ask Jones whether he wished to make a statement at sentencing
constitutes fundamental error mandating reversal of his sentence.
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[30] Indiana Code section 35-38-1-5 provides in relevant part that “[t]he 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.” At sentencing, the trial court asked defense
counsel—not Jones personally—whether Jones wished to make a statement.
Defense counsel said, “No.” Tr. p. 104. While the trial court should have
asked Jones personally whether he wished to make a statement, see Ind.
Criminal Benchbook § 68.25.000 (3d ed. 2001) (sentencing dialogue for trial
courts that includes asking the defendant personally if he has anything to say at
sentencing), defense counsel did not speak up when the court failed to do so.
Jones thus waived this issue. See Angleton v. State, 714 N.E.2d 156, 159 (Ind.
1999) (holding that the defendant waived the issue of whether the trial court
erred by failing to ask him whether he wished to make a statement at sentencing
by not objecting), reh’g denied.
[31] Nevertheless, the majority finds that the trial court’s failure to ask Jones
personally amounts to fundamental error pursuant to Horton v. State, 51 N.E.3d
1154 (Ind. 2016). I disagree. In Horton, the Indiana Supreme Court found the
right to a jury trial to be so important that the trial court must get a personal
waiver from the defendant before proceeding to a bench trial and that the
failure to do so cannot be waived and is fundamental error. Id. at 1158-60; see
also Good v. State, 267 Ind. 29, 366 N.E.2d 1169, 1171 (1977). Our Supreme
Court explained that the right to a jury trial is “a bedrock of our criminal justice
system,” specifically guaranteed by Article 1, Section 13 of the Indiana
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Constitution. Horton, 51 N.E.3d at 1158. The same cannot be said about the
right of allocution. Moreover, contrary to the right to a jury trial, the Court has
held that the right to be personally addressed about the right of allocution can
be waived. See Angleton, 714 N.E.2d at 159.
[32] In addition, this is not a situation where the defendant was not informed of his
right of allocution. Cf. Owens v. State, 69 N.E.3d 531, 534-35 (Ind. Ct. App.
2017) (reversing and remanding for a new sentencing hearing where the trial
court did not ask either defense counsel or the defendant if the defendant
wished to make a statement at sentencing). I would therefore affirm the trial
court.
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