      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
      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-664 | October 10, 2017           Page 1 of 6
      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.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-664 | October 10, 2017           Page 2 of 6
      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

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-664 | October 10, 2017   Page 3 of 6
      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.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-664 | October 10, 2017                Page 4 of 6
               [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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-664 | October 10, 2017   Page 5 of 6
       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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-664 | October 10, 2017   Page 6 of 6
