Vicory v. State

SULLIVAN, Judge,

dissenting.

I respectfully dissent. At the outset, however, and before addressing the merits of Vicory's claim, I would venture my disagreement with the conclusion that by failing to object he waived the claimed error *770in the trial court's denial of his right to make a statement.

The cases cited by the majority for this proposition, Robles v. State, 705 N.E.2d 183 (Ind.Ct.App.1998) and Locke v. State, 461 N.E.2d 1090 (Ind.1984), are in my view inapposite. They both involve a claim upon appeal that the court erred in not asking the defendant whether he wished to make a statement. They did not involve, as here, a denial by the trial court of a specific request to make a statement.

The trial court's denial reflects that the court considered the defendant's request and for whatever reason denied the right of allocution. That denial does not call for an objection so that the court may consider the matter. The matter has been considered and the defendant's claim has been rejected. In this regard it is akin to a trial court's refusal to give a tendered instruction. In such instance, as stated in Brown v. State, 708 N.E.2d 1010, 1018 (Ind.1998) and in other cases there cited, "An objection to a rejection of a properly tendered instruction is not required...."

Turning to the merits, I would adopt the position stated in U.S. v. Core, 532 F.2d 40 (7th Cir.1976), to the effect that in probation revocation proceedings, the court should allow the defendant to personally address the court with reference to the disposition to be made of the matter. See also Ross v. State, 676 N.E.2d 339 (Ind.1996) (discussing the right of allocution at the time of sentencing).

I would reverse and remand for further proceedings.