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
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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.
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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.
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[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.
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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.”
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[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:
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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
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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
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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
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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.
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[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).
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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
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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.
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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
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“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.
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