                                                                         FILED
                                                                    Mar 02 2017, 9:00 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
      Indianapolis, Indiana                                     Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Larenda Jones,                                            March 2, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A05-1606-CR-1433
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable James Snyder,
      Appellee-Plaintiff                                        Commissioner
                                                                Trial Court Cause No.
                                                                49G20-1507-F5-26471



      Mathias, Judge.


[1]   Larenda Jones (“Jones”) appeals the order of the Marion Superior Court

      revoking her placement in community correction and sentencing her to serve

      the remainder of her executed sentence at the Department of Corrections

      (“DOC”). On appeal, Jones presents two issues, which we reorder and restate

      as: (1) whether the trial court erred by failing to inform Jones of her release
      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017                Page 1 of 15
      date, and (2) whether the trial court denied Jones the right to speak in

      allocution. Concluding that the trial court did not err in failing to inform Jones

      of her release date but that the trial court did err by refusing to let Jones speak

      in allocution, we reverse and remand.


                                   Facts and Procedural History

[2]   On June 28, 2015, the State charged Jones with one count of resisting law

      enforcement as a Level 6 felony and one count of battery against a public safety

      official as a Level 5 felony. On August 31, 2015, Jones entered into a plea

      agreement with the State in which she agreed to plead guilty to the charge of

      battery against a public safety official and the State agreed to dismiss the charge

      of resisting law enforcement.1 Pursuant to the agreement, Jones was to receive a

      sentence of three years, with two years on home detention through Marion

      County Community Corrections and one year suspended to probation. The trial

      court accepted the plea and, on September 9, 2015, sentenced Jones as provided

      in the plea agreement.

[3]   On February 4, 2016, Jones admitted to violating the terms of her placement on

      home detention.2 As a result, the trial court revoked this placement and instead




      1
       The plea agreement also resolved another active criminal case against Jones and a pending allegation that
      Jones had violated the terms of her probation.
      2
       The State had alleged that Jones left her residence without authorization, had been charged with the crime
      of theft, and had failed to comply with the rules, regulations, and financial obligations of community
      corrections.

      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017                        Page 2 of 15
      ordered Jones to serve her sentence on work release at the Craine House

      Residential Center (“Craine House”).

[4]   On April 18, 2016, the State filed an allegation that Jones had violated the

      terms of her placement at Craine House. The trial court held a hearing on the

      matter on June 2, 2016. At this hearing, the State presented evidence that, on

      April 10 of that year, Jones argued with another inmate and, as she walked by

      this inmate, ran her shoulder into the back of the inmate, almost knocking her

      down. The State also alleged that, the next day, Jones and yet another inmate

      had a verbal altercation after Jones confronted the inmate. This altercation

      required the intervention of Craine House staff, who instructed Jones to go to

      her room, but Jones refused to comply.


[5]   Jones testified on her own behalf at the hearing and explained that she had not

      been taking her prescribed medications to treat her mental health issues. She

      also claimed that, with regard to the first incident, she merely “brushed [past]”

      the other inmate. Tr. p. 27. With regard to the second incident, Jones

      acknowledged that she and the other inmate got into an argument, but claimed

      that it was a minor incident for which both parties apologized to each other. At

      the conclusion of the hearing, the trial court found that Jones had violated the

      conditions of her placement, revoked her placement in home detention, and

      sentenced her to serve two years in the DOC and one year on probation. In so

      doing, the trial court noted that Jones had been placed on “strict compliance”

      probation. Tr. p. 31.



      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017   Page 3 of 15
[6]   As the State was attempting to discuss credit time, Jones herself interjected and

      asked the court, “May I please say something?” Tr. p. 32. The trial court

      responded, “Ms. Jones that time is up.” Id. As the parties continued their

      discussion regarding credit time, Jones again personally interjected, and the

      following exchange occurred between her and the trial court:


              [Jones]:        And for how long DOC?
              [Court]:        I’m sorry?
              [Jones]:        And how long DOC? I mean basically I no longer my
                              daughter a mother anymore [sic].
              [Court]:        I can’t give you an exact out date[.] [T]hat’s
                              something that DOC will give[.] I can assure you that
                              we have factored in all of your credit, you will receive
                              all of your credit and they will give you an
                              estimated—
              [Jones]:        Why can’t I go to the PAIR program or anything[?] I
                              have a daughter that’s going to get tooken (sic) from
                              me this month.
              [Court]:        —they will give you an estimated projected release
                              date, all right.

      Tr. p. 36.


[7]   The court then suggested that Jones have a “mental health probation officer”

      during her probation. Again, Jones asked, “[h]ow long DOC?” However, her

      question remained unanswered. Jones now appeals.




      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017       Page 4 of 15
                                                  I. Release Date

[8]   Jones claims that the trial court was required to inform her of the possible

      release dates for her incarceration. She bases this argument on Indiana Code

      section 35-38-1-1, which provides:


               (a) Except as provided in section 1.5 of this chapter,[3] after a
               verdict, finding, or plea of guilty, if a new trial is not granted, the
               court shall enter a judgment of conviction.
               (b) When the court pronounces the sentence, the court shall advise the
               person that the person is sentenced for not less than the earliest
               release date and for not more than the maximum possible release
               date.

      (emphasis added). Jones argues that subsection (b) of this statute required the

      trial court to inform her of her earliest possible release date and maximum

      possible release date.


[9]   The State contends, however, that this statute is inapplicable to probation

      revocation proceedings, noting that subsection (a) refers to a verdict, finding, or

      plea of guilty and a judgment of conviction and that subsection (b) refers to

      what the trial court must do “[w]hen the court pronounces the sentence.” The

      State argues that, read together, these subsections control only when the trial

      court is pronouncing the initial sentence, not when the court is revoking

      probation. We agree with the State.




      3
       Indiana Code section 35-38-1-1.5, which is inapplicable here, provides in relevant part that a trial court
      “may enter judgment of conviction as a Level 6 felony with the express provision that the conviction will be
      converted to a conviction as a Class A misdemeanor if the person fulfills certain conditions.”

      Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017                         Page 5 of 15
[10]   Our reading of Indiana Code section 35-38-1-1 is supported by our supreme

       court’s holding in Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004). In Vicory, the

       court held that Indiana Code section 35-38-1-5 did not apply to probation

       revocation hearings because that statute, by its own terms, applied only when

       the court “pronounce[d] [its] sentence.” 802 N.E.2d at 429. At a probation

       revocation hearing, the trial court has already “pronounced its sentence” within

       the meaning of Indiana Code section 35-38-1-5. Id. At a revocation hearing, the

       court does not pronounce a sentence but rather “decide[s] [whether] the

       previously suspended sentence should be executed.” Thus, section 35-38-1-5

       does not apply to revocation hearings.


[11]   The same is true with regard to Indiana Code section 35-38-1-1(b), which also

       applies when the trial court “pronounces the sentence.” Here, as in Vicory, the

       trial court had already pronounced its sentence when it initially sentenced

       Jones. At the revocation hearing, the court was not “pronounc[ing]” a new

       sentence; it was merely determining whether and how much of the already

       pronounced sentence should be executed. We therefore conclude that the trial

       court did not err by failing to inform Jones of her release date.


                                                  II. Allocution

[12]   Jones also claims that the trial court denied her the right to allocution. The right

       to allocution is of ancient origin. See Vicory, 802 N.E.2d at 429 (noting that the

       common law recognized the right to allocution as early as 1682). Our criminal

       code recognizes this right:


       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017   Page 6 of 15
               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 (emphases added).


[13]   In Vicory, our supreme court held that Indiana Code 35-38-1-5 did not apply to

       probation revocation proceedings because, in such proceedings, the defendant

       does not “appear for sentencing.” 802 N.E.2d at 429. 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 court also held that “when the situation

       presents itself in which the defendant specifically requests the court to make a

       statement, as it did here, the request should be granted.” Id.


[14]   The Vicory court based its holding in part on the fact that “[t]he Indiana

       Constitution ‘places a unique value upon the desire of an individual accused of

       a crime to speak out personally in the courtroom[.]’” Id. (quoting Sanchez v.

       State, 749 N.E.2d 509, 520 (Ind. 2001)). The court also noted that the right of

       allocution is “‘minimally invasive of the sentencing proceeding’” and that “‘the

       requirement of providing the defendant a few moments of court time is slight.’”

       Id. (quoting United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). Because

       the purpose of allocution is to give the trial court the opportunity to consider

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017    Page 7 of 15
       the facts and circumstances relevant to sentencing the defendant, and because a

       probation revocation “is indeed relevant to the defendant’s sentencing,” the

       court held that, even though the statute did not apply at probation revocation

       hearings, “the right of allocution should apply to probation revocation

       hearings.” Id.


[15]   Our supreme court addressed a similar question in Woods v. State, 892 N.E.2d

       637 (Ind. 2008). In Woods, the question before the court was whether a

       probationer had the right to make a statement regarding why he violated his

       probation even though he, like Jones in the present case, was on “strict

       compliance” probation. The defendant in Woods admitted that he had violated

       the terms of his probation (by missing a scheduled drug screen), but when he

       asked if he could explain his failure, the trial court cut him off. Woods

       appealed and claimed that the trial court denied him due process by preventing

       him from explaining why he violated the terms of his probation. On transfer,

       our supreme court held that “strict compliance” was no excuse for not allowing

       the probationer to explain why he should not have his probation revoked. Id. at

       641. Indeed, the court observed that “the very notion that violation of a

       probationary term will result in revocation no matter the reason is

       constitutionally suspect.” Id. at 641. The court further held:


               We acknowledge that telling a defendant that he is on ‘‘strict
               compliance’’ is a dramatic way of putting him on notice that he is
               on a short leash and has been given one final chance to ‘‘get his
               act together.’’ Nonetheless due process requires that a defendant be
               given the opportunity to explain why even this final chance is deserving of


       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017         Page 8 of 15
               further consideration. By denying Woods this opportunity, the trial
               court erred.


       Id. (emphasis added).


[16]   Jones argues that, based upon the holdings in Vicory and Woods, the trial court

       was required to permit her to make a statement on her own behalf. We agree.


[17]   First, we note that although Jones was in a work release program, the holdings

       of Vicory and Woods still apply even though those cases involved probation. The

       due process requirements expressed by our supreme court for probation

       revocation proceedings are also required when the trial court revokes a

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

       work release programs. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).


[18]   Thus, although the trial court was not required to ask Jones if she wished to

       make a statement, once she expressed a desire to make such a statement, the

       trial court should have allowed her to do so, as due process required that she be

       permitted to speak. Vicory, 802 N.E.2d at 429; Woods, 892 N.E.2d at 641.

       However, the trial court’s failure to allow Jones to speak separately in

       allocution does not automatically entitle her to reversal.

[19]   The Vicory court also held that “[w]hen the defendant is given the opportunity

       to explain his view of the facts and circumstances, the purpose of the right of

       allocution has been accomplished,” because “the right of allocution was not

       given to ‘seek mitigating evidence or a plea for leniency, but rather to give the

       defendant a formal opportunity to show one of the strictly defined legal grounds
       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017   Page 9 of 15
       for avoidance or delay of the sentence.’” Id. at 429-30 (quoting Minton v. State,

       400 N.E.2d 1177, 1180 (Ind. Ct. App. 1980)).

[20]   The defendant in Vicory testified at his probation revocation hearing and

       explained why his probation should not be revoked and gave the trial court the

       opportunity to consider facts and circumstances relevant to the revocation of his

       probation. Id. He also failed to identify any statement or argument that he

       would have made had the trial court granted his request to make a statement.

       Id. Thus, “the court’s refusal did not affect his substantive rights such that

       reversal is warranted.” Id.


[21]   The State claims that Jones’s testimony during the probation revocation hearing

       obviated the need for her to make a statement before sentencing, citing Vicory.

       However, we do not read Vicory to mean that any time the defendant testifies at

       a probation revocation hearing, that this extinguishes her right to make a

       statement regarding why her probation should not be revoked. Instead, we read

       the holding in Vicory to mean that, if the testimony satisfies the purpose of

       allocution, i.e., the defendant was adequately able to explain why his or her

       probation should not be revoked, then there is no harm if the defendant is

       denied the opportunity to make a further statement in allocution. In Vicory, the

       defendant “did in fact address the court and was able to tell his side of the

       story,” which is “essentially what the right of allocution would have allowed

       him to do.” Id. at 430. Moreover, Vicory was able to speak about why his

       probation should not be revoked and gave the trial court the opportunity to

       consider facts and circumstances relevant to the revocation of his probation. Id.

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017   Page 10 of 15
[22]   Here, Jones’s testimony at the revocation hearing explained her side of the story

       as to the allegations that she violated the terms of her placement. An important

       part of her testimony was her assertion that her failure to take the medication

       prescribed for her mental health issues played a part in the causation of her

       objectionable behavior. The trial court inferentially noted the critical nature of

       this issue when it suggested that Jones be assigned a mental health probation

       officer after she served two years of her sentence balance in DOC.4


[23]   In addition, Jones complains that, in her testimony, she was not afforded an

       opportunity to explain to the trial court why her placement should not be

       revoked, i.e., because of the impact incarceration would have on her ability to

       parent her child. Pursuant to Woods,5 even a probationer on “strict compliance”

       should be afforded an opportunity to explain to the trial court “why even this

       final chance is deserving of further consideration.” 892 N.E.2d at 641.

[24]   When Jones understood that she would be serving part of her sentence in DOC,

       she attempted to speak up on her own behalf to request alternative sentencing.



       4
        There is no evidence as to whether she was assigned a mental health probation officer at the time of her
       violation of her placement in the work release center.
       5
         The State also argues that, as in Woods, Jones is not entitled to relief because she failed to make an offer to
       prove what she would have said had he been given the chance to make a statement to the court. See Woods,
       892 N.E.2d at 642. Jones acknowledges that she did not make a formal offer of proof regarding what she
       would have said to the trial court. She instead argues that her “inartful attempts to inform the trial court of
       her concerns that revocation would impact her ability to continue to parent her daughter” were sufficient to
       preserve the issue for appeal. Appellant’s Br. p. 12. We agree. Jones informed the trial court that she wished
       to speak and mentioned that placement in DOC would impair her ability to parent her daughter. Although
       she did not make a formal offer of proof, the content of her proposed statement is sufficiently clear in context
       for us on appeal to determine the admissibility of the statement and whether prejudice resulted from its
       exclusion. See Woods, 892 N.E.2d at 641 (noting that the purpose of an offer of proof is to convey the point of
       the testimony and provide the trial court the opportunity to reconsider the evidentiary ruling).

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017                           Page 11 of 15
       In response, the trial court indicated that Jones’s “time [to speak] [wa]s up.” Tr.

       p. 32. In the face of silence from her counsel, Jones continued to speak, in

       panicked bursts between statements from the bench, in order to inform the trial

       court that incarceration would end her ability to be a parent. Specifically, she

       said that incarceration would mean that she was “no longer my daughter a

       mother [sic] anymore,” and that her daughter would be taken from her. Id. at

       36. However, her statements were made at a time when the trial court had

       clearly made up its mind.

[25]   Considering the important allocution issues that were not allowed to be fully

       developed, we believe that Jones should be afforded a new and full opportunity

       for allocution. We find support for our conclusion in the recent case of Owens v.

       State, ___ N.E.3d ___, 2017 WL 410217, No. 49A02-1605-CR-1142 (Ind. Ct.

       App. Jan. 31, 2017). In Owens, the trial court denied the defendant a right to

       speak on his own behalf at sentencing despite his attorney’s efforts to secure such

       an opportunity for the defendant. The Owens court held that the brief, pre-trial

       statement made by Owens’s attorney did not cure the error of refusing to let the

       defendant make a statement in allocution. Id. at slip op. p. 7. The Owens court

       continued: “The record indicates that the trial court judge had made up his mind

       before pronouncing the sentence and did not feel obligated or interested to hear

       what defense counsel or Owens had to say, beyond the brief, curtailed statement

       defense counsel had already made on Owens’s behalf.” Id. at 7-8. The Owens

       court therefore held that the trial court’s failure to permit Owens or his counsel to

       make a statement prior to sentencing “constitute[d] a clear denial of Owens’s

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017   Page 12 of 15
       right to due process[.]” Id. at 8. Therefore, the court reversed and remanded for a

       new sentencing hearing at which Owens and his counsel could be heard. Id. at 9.


[26]   The same is true here. Jones was denied the right to speak on her own behalf

       because the trial court had already made up its mind and was not inclined to

       listen to what Jones had to say. Accordingly, we reverse the trial court’s

       decision to revoke Jones’s placement in work release and remand with

       instructions that Jones be given the opportunity to make a statement to the

       court regarding why her placement should not be revoked and why she should

       not be placed in DOC. The trial court will of course still be free to exercise its

       considerable discretion in how to weigh Jones’s statement, but Jones

       nevertheless has a right to personally make a statement.


                                                  Conclusion

[27]   We reject Jones’s argument that the trial court erred by failing to inform her of

       her release date, as the statute on which she relies is inapplicable to revocation

       proceedings. However, the trial court should have permitted Jones to make an

       allocution statement when she requested to speak. We therefore reverse the trial

       court’s revocation of Jones’s placement and remand with instructions to allow

       Jones a full and clear opportunity for allocution.


[28]   Reversed and remanded.


       Pyle, J., concurs.

       Baker, J., concurs with a separate opinion.

       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017   Page 13 of 15
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Larenda Jones,                                            Court of Appeals Case No.
                                                                 49A05-1606-CR-1433
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, concurring.


[29]   I fully concur with the majority opinion. I write separately to urge our Supreme

       Court to revisit its interpretation of the right of allocution as codified in Indiana

       Code section 35-38-1-5. For two reasons, I believe that a broader interpretation

       of “sentencing” would be the best practice. First, the right of allocution, in my

       view, is a fundamental right of every criminal defendant who faces a potential

       loss of freedom. Furthermore, every trial judge who is about to order said loss

       of freedom is aided when a defendant is permitted to explain to the court the

       potential consequences of a prison term. This is no less true in the context of a

       revocation of probation than it is in the context of the original pronouncement

       of the defendant’s sentence. I believe that a broader interpretation of


       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017              Page 14 of 15
       “sentencing” should encompass probation revocation proceedings so that this

       fundamental right is secure during each point in time when the defendant faces

       a loss of freedom.


[30]   Second, I believe that a consistent rule will be easier for trial judges to manage.

       In other words, trial courts already have to ask the defendant at the initial

       sentencing hearing whether he wants to make a statement on his own behalf but

       are not currently required to do so at probation revocation hearings. In my

       view, it would simplify matters considerably to hold, across the board, that trial

       courts must make this inquiry on any occasion when the court is about to

       impose incarceration on a defendant. In that way, the inquiry becomes a

       routine that cannot be overlooked or questioned. For these two reasons, I hope

       that our Supreme Court will revisit this issue, holding that Indiana Code section

       35-38-1-5 does, in fact, apply to probation revocation proceedings.




       Court of Appeals of Indiana | Opinion 49A05-1606-CR-1433 | March 2, 2017   Page 15 of 15
