MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Oct 04 2017, 8:56 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
      COURT OF APPEALS OF INDIANA

Markco Martez Lee,                                       October 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1704-CR-811
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas L. Clem,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C05-1603-F6-431



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-811 | October 4, 2017         Page 1 of 6
                                             Case Summary
[1]   Markco Martez Lee appeals the trial court’s revocation of his probation. He

      contends that the trial court committed fundamental error in failing to give him

      the opportunity to make an allocution statement prior to the court’s revocation

      of his probation. Finding no fundamental error, we affirm.


                                 Facts and Procedural History
[2]   In 2016, Lee committed level 6 felony obstruction of justice and level 6 felony

      battery of a public safety officer. He pled guilty to both offenses under different

      cause numbers. He received an aggregate sentence of sixty months, with

      twenty-four months suspended to probation and six months to be served on

      home detention. Lee began serving home detention under one cause number

      on December 13, 2016, and he was released from that detention on February 1,

      2017. He then began serving home detention under the other cause number on

      February 8, 2017. A month later, in March 2017, the State filed a notice of

      probation violation alleging that Lee violated his probation by committing the

      new crime of assisting a criminal. The State further alleged that Lee violated

      his probation in failing to participate in treatment/counseling programs, failing

      to pay home detention fees, and failing to comply with the term of probation

      which required Lee to submit to searches of his person or residence on request.


[3]   An evidentiary hearing was held on March 16, 2017. The State presented

      several witnesses who testified regarding Lee’s probation violations, and

      defense counsel had the opportunity to, and did, cross-examine each one. At


      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-811 | October 4, 2017   Page 2 of 6
      the close of the State’s evidence, defense counsel moved for a “direct[ed] verdict

      of not guilty on the probation violation.” Tr. Vol. 2 at 50. Defense counsel

      then requested the trial court to bifurcate the evidentiary hearing to allow him

      to subpoena a number of witnesses to testify for the defense on a future date.

      The trial court denied the directed verdict and bifurcation request, and no

      witnesses testified on Lee’s behalf.1


[4]   Thereafter, the trial court asked eighteen-year-old Lee a few questions regarding

      his prior juvenile record and his familiarity with the criminal justice system,

      specifically, his familiarity with the requirements of probation. After the

      questioning, the trial court found that Lee had violated his probation by

      committing the new offense of assisting a criminal and ordered Lee to serve the

      balance of his previously suspended sentence in the Department of Correction.

      This appeal ensued.


                                       Discussion and Decision
[5]   Lee challenges the trial court’s revocation of his probation: specifically, the

      revocation of his placement in community corrections/home detention. Our

      supreme court has explained,




      1
        The record indicates that Lee’s original counsel was unavailable for the hearing and therefore secured
      substitute counsel to appear. Substitute counsel informed the court that he thought that Lee’s original
      counsel may have intended to subpoena witnesses and that a two-week delay to allow original counsel to get
      “back from vacation” and “present a defense for Mr. Lee that he intended to” would cause no inconvenience
      to the State. Tr. Vol. 2 at 52-53. One defense witness who was present at the hearing was advised by his own
      counsel to assert his Fifth Amendment right against self-incrimination and to not testify. On appeal, Lee does
      not specifically challenge the trial court’s denial of his directed verdict or bifurcation request.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-811 | October 4, 2017             Page 3 of 6
              For purposes of appellate review, we treat a hearing on a petition
              to revoke a placement in a community corrections program the
              same as we do a hearing on a petition to revoke probation. The
              similarities between the two dictate this approach. Both
              probation and community corrections programs serve as
              alternatives to commitment to the Department of Correction and
              both are made at the sole discretion of the trial court. A
              defendant is not entitled to serve a sentence in either probation or
              a community corrections program. Rather, placement in either is
              a matter of grace and a conditional liberty that is a favor, not a
              right.


      Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (footnotes, citations, and

      quotation marks omitted). Accordingly, the due process requirements for

      probation revocation proceedings are also required when the trial court revokes

      a defendant’s placement in a community corrections program, which includes

      home detention. See id.


[6]   Lee asserts that the trial court violated his due process rights in failing to give

      him an opportunity to make an allocution statement prior to the revocation of

      his probation. Lee acknowledges that he failed to object to the procedure

      employed by the trial court but claims that the trial court committed

      fundamental error. “An error is fundamental, and thus reviewable despite

      failure to object, if it ‘made a fair trial impossible or constituted a clearly blatant

      violation of basic and elementary principles of due process presenting an

      undeniable and substantial potential for harm.’” Young v. State, 30 N.E.3d 719,

      726 (Ind. 2015) (quoting Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014)).

      Fundamental error is a “a daunting standard,” applicable only in egregious


      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-811 | October 4, 2017   Page 4 of 6
      circumstances. Knapp, 9 N.E.3d at 1281. The exception is extremely narrow,

      and reaches only errors that are so blatant that the trial judge should have taken

      action sua sponte. Id.


[7]   The right Lee claims he was denied, the right of allocution, is rooted in the

      common law, and was first codified in Indiana in 1905. Biddinger v. State, 868

      N.E.2d 407, 410 (Ind. 2007). Presently, Indiana Code Section 35-38-1-5

      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.


[8]   In Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004), our supreme court held that

      Indiana Code Section 35-38-1-5 did not apply to probation revocation

      proceedings because, in such proceedings, the defendant does not “appear for

      sentencing.” Thus, the trial court is not required to ask the defendant at a

      probation revocation whether he wants to make a statement. Id. However, the

      Vicory court also held that “when the situation presents itself in which the

      defendant specifically requests the court to make a statement, … the request

      should be granted.” Id.



      Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-811 | October 4, 2017   Page 5 of 6
[9]    Similarly, in Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008), our supreme court

       reiterated that the trial court should not prevent a defendant from explaining a

       probation violation if he or she so requests. The Woods court went on to

       conclude that a defendant who is denied such opportunity must make an offer

       to prove to preserve the issue for appellate review. Id. at 641-42. Most recently

       in Jones v. State, 71 N.E.3d 412 (Ind. Ct. App. 2017), this Court followed Vicory

       and Woods and concluded that although the trial court was not required to ask

       the defendant if she wished to make a statement in allocution, once she

       expressed a desire to make a statement on her own behalf, the trial court should

       have allowed her to do so, “as due process required that she be permitted to

       speak.” Id. at 417.


[10]   Unlike the defendants in Vicory, Woods, and Jones, Lee did not express a desire

       to make an allocution statement and, pursuant to our supreme court precedent,

       the trial court was not required to proactively ask him if he wished to make

       such a statement.2 Moreover, Lee did not make an offer to prove to the trial

       court or to this Court regarding what he would have said. Under the

       circumstances, Lee has failed to demonstrate that fundamental error occurred.


[11]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.



       2
        Lee directs us to Judge Baker’s concurring opinion in Jones and urges that trial courts “should be required to
       ask a probationer” if he wishes to make an allocution statement. Appellant’s Br. at 16. Unless and until our
       supreme court decides to revisit this issue, we are bound by their precedent in this area.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1704-CR-811 | October 4, 2017              Page 6 of 6
