                                                                  FILED
                                                              Jan 31 2017, 8:53 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Suzy St. John                                              Curtis T. Hill, Jr.
Marion County Public Defender                              Attorney General of Indiana
Indianapolis, Indiana
                                                           Katherine Modesitt Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Devonte Owens,                                             January 31, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1605-CR-1142
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Clayton A.
Appellee-Plaintiff                                         Graham, Judge
                                                           Trial Court Cause No.
                                                           49G07-1508-CM-28999



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017              Page 1 of 9
[1]   Devonte Owens appeals his sentence for Carrying a Handgun Without a

      License,1 a Class A Misdemeanor, arguing that he was denied due process at his

      sentencing hearing. Finding that Owens did not receive due process, we reverse

      and remand for a new sentencing hearing.2


                                                        Facts
[2]   On August 15, 2015, Officer Brett Bousema of the Indianapolis Metropolitan

      Police Department made a traffic stop after observing a car make several traffic

      violations. Officer Bousema asked the driver, Quina Simon, and the two

      occupants in the car for identification. One passenger identified himself as

      Owens, and the other identified himself as a juvenile. Officer Bousema asked

      whether there were any weapons in the car, and each of the occupants said

      there were not. After finding that Simon’s driver’s license was suspended but

      that Owens had a valid driver’s license, Officer Bousema asked Simon and

      Owens whether they could switch seats. When Officer Bousema opened the

      door to the vehicle, he observed a handgun between the passenger seat and the

      car door.




      1
          Ind. Code § 35-47-2-1.
      2
        Owens also argues that his probation fees must be vacated, but because we are reversing and remanding on
      the first issue, we need not discuss this second issue in detail here. We note that the trial court’s original
      sentencing order provided for “[p]robation on a sliding fee scale,” Appellant’s App. p. 11, but the amended
      sentencing order omitted this part about probation fees to be paid on a sliding fee scale. We encourage the
      trial court to clarify any probation fees assessed to Owens.

      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017                        Page 2 of 9
[3]   The State charged Owens with carrying a handgun without a license, a Class A

      misdemeanor. After an April 25, 2016, bench trial, the trial court found Owens

      guilty as charged. The trial court remanded Owens to the custody of the

      Marion County Sheriff, at which time the following exchange occurred:


              Defense Counsel: Judge, Mr. Owens is working, he’s a college
              student, he will lose the job that he just received. We would ask
              that we either proceed to sentencing today, or that he be allowed
              to self-report. He’s not missed work.


              The Court: Who says he’s going to be going to Community
              Corrections?


              Defense Counsel: No, self-report for sentencing. He’s not
              missed court. He does not have a significant criminal history.


              The Court: Well, when you go to trial, you expect to go to jail
              today. Why are we—self-report for what?


              Defense Counsel: If we’re not proceeding to sentencing today,
              that he could report to sentencing.


              The Court: All right. Right. Well, we will—he has two days
              credit, 365 days Marion County Jail—he has two actual days
              credit, so that would be four, so it will be 271 suspended. He’ll
              be placed on probation for 275 days and that will be reporting
              probation. He’ll be assessed a statutory Safe School fee of $200,
              fine in the amount of $100 and court costs in the amount of $183.
              Public defender recoupment fee—did he pay his public defender
              recoupment fee? He was assessed back on August the 16 of 2015.
              Did you pay your public defender recoupment fee, Mr. Owens?



      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017   Page 3 of 9
        The Defendant: No.


        The Court: All right. Well, that can be paid during probation,
        $50 public defender recoupment fee. The gun will be disposed
        of. I need an order. What I’ll do—you’ll be remanded to
        custody. However, I will release you to Marion [C]ounty,
        Community Corrections so that you can serve the balance of
        your sentence on the Marion County Community Corrections
        Home Detention Component. You will be placed on a sliding
        fee scale and/or reduced fee schedule, but you will-be going into
        custody right now. We’ll place him on the list so they’ll either
        pick you up tomorrow or the next day.


        Defense Counsel: Judge, may we be heard as to sentencing,
        Judge, the mitigating factors.


        The Court: We just submitted the sentencing.


        Defense Counsel: Understand, but we didn’t have an
        opportunity to argue, or to present argument for sentencing.


        The Court: Go ahead.


        Defense Counsel: I can’t elicit testimony from my client?


        The Court: I mean, the Court has made its ruling. The Court
        has made its ruling.


        Defense Counsel: If he gets taken into custody today, he’s going
        to lose—


        The Court: Well, he’s going to get an opportunity to go to
        Community Corrections.

Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017   Page 4 of 9
        Defense Counsel: And there’s been individuals that pled guilty
        here today for the same offense and—


        The Court: That is not—that is not—


        Defense Counsel: —were not taken into custody.


        The Court: And that was by plea agreement.


        Defense Counsel: That’s correct.


        The Court: This is not a plea agreement, lest I remind you,
        Ms.—this is a trial.


        Defense Counsel: That’s correct. He exercised his right to trial.


        The Court: And that’s fine. And the Court made its ruling. So
        he will be taken into custody. The Court will allow him to go to
        Community Corrections, but they’re going to pick him up. But
        he is going in to custody today. And then he’s going to report to
        probation. He’ll be allowed to report to Community Corrections
        then he’s going to report to probation when they pick him up.


        Defense Counsel: We would just ask that he be allowed to self-
        report to Community Corrections tomorrow morning, it would
        save the county expenses from him being taken into custody
        tonight, having to be picked up tomorrow, which does not
        usually occur within one day.


        The Court: I’ve made my ruling.


        Defense Counsel: He’d be able to maintain his employment to
        pay for court costs.

Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017   Page 5 of 9
              The Court: He is going to jail. He is going to jail and he’ll be
              picked up and that’s my ruling. Thank you.


      Tr. p. 105-109.


[4]   The trial court sentenced Owens to 365 days, with four days of credit for time

      served, 271 days suspended to be served on probation, and 90 days to be served

      through Marion County Community Corrections. The trial court amended the

      sentence, changing the 90 days to be served through Marion County

      Community Corrections to 90 days to be served through Marion County

      Community Corrections Home Detention. The trial court also imposed a fine

      and fees. Owens now appeals.


                                    Discussion and Decision
[5]   Owens argues that the trial court denied him due process during sentencing

      when it failed to advise him of his right to speak on his own behalf, failed to

      give him an opportunity to make a statement, and failed to allow his counsel to

      make a meaningful sentencing argument. We agree.


[6]   To resolve the issue, we turn to our statute governing the right of allocution.

      Indiana Code section 35-38-1-5 provides that:

              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
      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017   Page 6 of 9
              statement. Sentence shall then be pronounced, unless a sufficient
              cause is alleged or appears to the court for delay in sentencing.


      Emphases added. “‘The right of allocution is minimally invasive of the

      sentencing proceeding; the requirement of providing the defendant a few

      moments of court time is slight.’” Vicory v. State, 802 N.E.2d 426, 429 (Ind.

      2004) (quoting United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). The

      right of allocution serves “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. (citation and quotation marks omitted). A defendant who claims

      that he was denied his right to allocution bears a strong burden in establishing

      his claim. Id.


[7]   Here, the record reveals that, prior to the sentencing portion of the hearing,

      Owens’s counsel made a very brief statement on Owens’s behalf, when counsel

      stated that “Mr. Owens is working, he’s a college student, he will lose the job

      that he just received. We would ask that we either proceed to sentencing today,

      or that he be allowed to self-report. He’s not missed work.” Tr. p. 105. The

      record also reveals that the trial court did not advise Owens of his right to speak

      on his own behalf or give him an opportunity to make a statement, despite his

      attorney’s efforts to secure for Owens an opportunity to speak on his own

      behalf. We do not find that the brief, pre-sentencing statement made by

      Owens’s attorney qualifies as a meaningful sentencing argument made on

      behalf of Owens. The record indicates that the trial court judge had made up

      his mind before pronouncing the sentence and did not feel obligated or

      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017   Page 7 of 9
      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. The

      trial court’s failure to allow Owens’s counsel to make a meaningful sentencing

      argument, 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.


[8]   We are dismayed by the trial court’s disregard for the statute that governs a

      defendant’s rights during sentencing. Our General Assembly clearly intended

      for a defendant to be advised of his right to speak at sentencing and to be able to

      speak if he wanted to do so; the statute mandates that, “before pronouncing

      sentence, the court shall ask the defendant whether the defendant wishes to

      make such a statement.” I.C. § 35-38-1-5 (emphasis added). Thus, a trial court

      must advise a defendant of this right and provide him with an opportunity to

      speak, if he so chooses. We understand that trial courts are busy, but to be so

      curt with defendants and their counsel, as the trial court was here, is penny wise

      and pound foolish—the denial of due process only leads us back to where

      defense counsel wanted us to be during sentencing, but at the expense of our

      taxpayers. See Ind. Judicial Conduct Rule 2.8(B) (“A judge shall be patient,

      dignified, and courteous to litigants . . . lawyers . . . and others with whom the

      judge deals in an official capacity . . .”). We take this opportunity to remind

      trial courts of their statutory duty to afford criminal defendants the rights that

      our General Assembly intended them to have during sentencing.


      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017   Page 8 of 9
[9]   The judgment of the trial court is reversed and remanded for a new sentencing

      hearing.


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017   Page 9 of 9
