State v. Strickland

LANDAU, J.,

dissenting. I disagree with the majority’s reliance on United States v. Barnes, 948 F.2d 325 (7th Cir. 1991), in determining, in part III, that a defendant has no right of allocution in a probation revocation hearing.

The right of allocution affords a criminal defendant the opportunity to address the court on his own behalf prior to sentencing. See United States v. Behrens, 375 U.S. 162, 165, 84 S. Ct. 295, 11 L. Ed. 2d 224 (1963). “It is designed to temper punishment with mercy in appropriate cases, and to ensure that sentencing reflects individualized circumstances.” United States v. *787De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). “As early as 1689, it was recognized that the court’s failure to ask the defendant if he had anything to say before sentence was imposed required reversal.” Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961), citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (KB. 1689).

The broad language in State v. Carr, 172 Conn. 458, 474, 374 A.2d 1107 (1977), that the right of allocution in some jurisdictions is a “technical formality” and is of “little importance in modem criminal procedure” is misleading. In fact, the right of allocution “remains deeply embedded in our criminal jurisprudence.” United States v. De Alba Pagan, supra, 33 F.3d 129; see Practice Book § 919 (3);1 F .R. Crim. P. 32 (a) (1) (c);2 Boardman v. Estelle, 957 F.2d 1523, 1529-30, cert. denied, 506 U.S. 904, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992) (holding that allocution is right guaranteed by due process clause of constitution). In Green v. United States, supra, 365 U.S. 304, for example, the Supreme Court stated that “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

The majority is correct that Practice Book § 943 does not expressly provide a defendant the right of allocution at a probation revocation hearing. The majority also relies on United States v. Barnes, supra, 948 F.2d 325. Barnes was convicted of conspiracy to possess with intent to distribute cocaine and distribution of cocaine. *788The District Court sentenced Barnes to three years imprisonment, to be followed by a five year term of special parole for distributing cocaine, but suspended imposition of sentencing for his conspiracy conviction, and placed Barnes on a five year period of probation. After Barnes violated the terms of his release, the District Court conducted a probation revocation hearing at which the court sentenced Barnes to five years imprisonment on the conspiracy count. The Seventh Circuit Court of Appeals vacated the sentence and remanded for resentencing because the District Court denied Barnes his right of allocution.

The Court of Appeals distinguished cases in which sentence has been imposed, but its execution suspended, from cases where the defendant is convicted but imposition of the sentence is postponed. The important distinction is that in the latter cases the scope of punishment is not preordained.

I write separately to highlight a different approach adopted by the First Circuit Court of Appeals, and offer the First Circuit’s approach for consideration in lieu of that of Barnes. In United States v. Buckley, 847 F.2d 991 (1st Cir. 1988), cert. denied, 488 U.S. 1015, 109 S. Ct. 808, 102 L. Ed. 2d 798 (1989), the defendant, Buckley, pleaded guilty to one of two drug charges against him. The court accepted Buckley’s plea and continued the case so that a presentence investigation report could be prepared. At the initial sentencing hearing, after giving Buckley an opportunity to address the court, the court imposed a provisional five year sentence and committed him for observation pursuant to 18 U.S.C. § 4205 (c) and (d). At the hearing on the final imposition of sentence, the court denied Buckley an opportunity to address the court. The court reasoned that Buckley had his right of allocution at the provisional sentencing hearing, and, thus, no such right existed at the final sentencing hearing.

*789The First Circuit Court of Appeals acknowledged that the District Court had denied Buckley his right of allocution. The Court of Appeals reasoned that the right of allocution arises when a defendant is,finally sentenced. Thus, the denial of Buckley’s right of allocution at the final sentencing could not be cured by what transpired at the prior provisional sentencing. The Court of Appeals remanded for resentencing in accordance with rule 32 (a) (1) (c) of the Federal Rules of Criminal Procedure, stating that “[t]he rule mandates precisely what it appears to mandate: a personal inquiry directed to the defendant himself.” United States v. Buckley, supra, 847 F.2d 1002, citing United States v. Dickson, 712 F.2d 952, 956 (5th Cir. 1983).

Ultimately, both cases turn on the fact that the scope of punishment is not preordained at the time allocution is requested. See United States v. Barnes, supra, 948 F.2d 329; United States v. Buckley, supra, 847 F.2d 1002. In Connecticut, General Statutes § 53a-32 (b) provides in pertinent part: “If [a] violation [of probation or conditional discharge] is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. . . .” Section 53a-32 (b) bestows on the trial court broad discretion in deciding whether to revoke probation. See State v. March, 39 Conn. App. 267, 278, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995). As a result, the sentence imposed following a violation of probation or conditional discharge is not preordained.

Although Buckley is a federal provisional sentencing case, I would adopt the First Circuit’s analysis. Even though the defendant was afforded his right of allocution when he was provisionally sentenced, that right should be extended at his final sentencing. The burden *790on the trial court, in allowing a defendant a right of allocution at a probation revocation hearing, is outweighed by concerns of fundamental fairness.

Practice Book § 919 provides in pertinent part: “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence.”

Rule 32 (a) (1) of the Federal Rules of Criminal Procedure provides in pertinent part that “[b]efore imposing sentence, the court shall also . . . address the defendant personally and [determine if the defendant] wishes to malte a statement . . . and to present any information in mitigation [of the sentence].”