                                                                                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.


      Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 2 of 16
      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.




      Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 3 of 16
[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.

       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 4 of 16
[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

       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 5 of 16
       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
       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 6 of 16
       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

       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017    Page 7 of 16
       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

       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017    Page 8 of 16
       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


       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017    Page 9 of 16
       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




       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 10 of 16
       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.

       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017                       Page 11 of 16
       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.

       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017                           Page 12 of 16
       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.


       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017               Page 14 of 16
[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


       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 15 of 16
       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.




       Court of Appeals of Indiana | Opinion 49A02-1611-CR-2513 | June 12, 2017   Page 16 of 16
