Attorneys for Appellant Attorneys for Appellee
Kurt Young Steve Carter
Nashville, Indiana Attorney General of
Indiana
Ann M. Sutton Zachary J. Stock
Indianapolis, Indiana Deputy Attorney General
Office of the Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S05-0304-CR-00153
Chad E. Vicory,
Appellant (Defendant below),
v.
State of Indiana.
Appellee (Plaintiff below).
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Appeal from the Marion Superior Court, No. 49G02-9812-CF-197275
The Honorable Robert Altice, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0204-
CR-165
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January 29, 2004
Shepard, Chief Justice.
Chad Vicory had multiple problems complying with the terms of his
probation, and the trial court held a hearing on a petition to revoke. The
court heard evidence and argument and announced that probation was revoked.
Vicory asked permission to read a statement, which the court declined. He
now questions whether the right of allocution should extend to include
probation revocation hearings. We hold that it should.
Statement of the Facts and Procedural History
On October 4, 1999, the Marion Superior Court convicted Chad Vicory of
sexual misconduct with a minor, a Class C felony. The court sentenced
Vicory to six years with four years suspended and two years executed at the
Department of Correction. The Court placed Vicory on probation after his
release from incarceration.
The court ordered Vicory to enroll at AGAPE House, a halfway house.
AGAPE House terminated his stay for a probation violation. The court gave
Vicory two weeks to enter another halfway house, one of the conditions of
his probation. Two probation officers spoke to Vicory about entering
another halfway house, and he said he was accepted into another program but
did not present any evidence to demonstrate that this was so. (R. at 4, 8,
9.)
On February 12, 2002, a petition to revoke Vicory’s probation was
filed, alleging that Vicory failed to comply with the AGAPE House program,
maintain full-time employment, and submit to a urinalysis test. Vicory had
said he was employed at a restaurant, but probation officer Melanie Payne
learned that Vicory had been fired three weeks prior. Moreover, on
February 7, 2002, Vicory did not report for a drug test when called
because, according to him, he did not drive.
Finding that Vicory violated his probation, the court ordered his
previously suspended sentence to be executed. It then asked Vicory if he
wanted to appeal. Vicory responded by asking if he could read a statement.
The court denied his request and asked Vicory again if he wished to
appeal. Vicory replied affirmatively.
The Court of Appeals affirmed the trial court’s decision and held that
Vicory was not denied the right to allocution because he was not being
“sentenced” under Ind. Code § 35-38-1-5. Vicory v. State, 781 N.E.2d 766,
769 (Ind. Ct. App. 2003). The Court further noted that the right to
allocution does not apply to probation revocation hearings. Id. We
granted transfer.
Right of Allocution
In claiming that he was entitled to make a statement at his
revocation hearing, Vicory relies on Indiana Code § 35-38-1-5, which says:
“the defendant may . . .make a statement personally on his own behalf and,
before pronouncing sentence, the court shall ask him whether he wishes to
make such a statement.” Vicory argues that such statements give the court
an opportunity to learn about his mental state, his view of the facts and
circumstances that surround the violation, and affords him a chance to
plead for leniency. (Appellant Br. at 5-10.) The State replies that
Indiana does not recognize a right of allocution at a probation revocation
hearing. (Appellee Br. at 2, 6.)
The State also asserts that Vicory waived his claim of error because
he failed to object to the denial of his alleged right to allocution during
the trial. It relies on Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct.
App. 1998), in which the Court of Appeals noted that a person cannot sit
idly by, permit the trial court to make an error, and attempt to take
advantage of the error at a later time. Once the court denied Vicory’s
request to read his statement, however, the right to appeal was properly
preserved.
The common law recognized the right of allocution as early as 1682.
Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996) (citing Jonathan Scofield
Marshall, Comment, Lights, Camera, Allocution: Contemporary Relevance or
Director’s Dream?, 62 Tul. L. Rev. 207, 209 (1987)). The right of
allocution generally presents itself as a pre-sentencing procedure and we
have addressed the right of allocution in such settings.[1] Whether one is
entitled to the right to allocution during a probation revocation hearing,
however, is an issue of first impression.
As the State correctly points out, at a probation revocation hearing,
a sentence has already been imposed on a defendant but it has been
suspended. (Appellee Br. at 3; see also Mingle v. State, 182 Ind. App.
653, 660, 396 N.E.2d 399, 405 (1979) (the imposition of a suspended
sentence following a violation of the probation hearing is not a
“sentencing”). Vicory had already been sentenced to six years, with four
years suspended. The trial court did not “pronounce a sentence” within the
meaning of Indiana Code § 35-38-1-5 at the probation revocation hearing.
Rather, it decided that the previously suspended sentence should be
executed.
Because the court does not “pronounce a sentence” at a probation
revocation hearing, the judge is not required to ask the defendant whether
he wants to make a statement, as provided by Indiana Code § 35-38-1-5. But
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.
Article 1, section 13 of the Indiana Constitution provides in part:
“In all criminal prosecutions, the accused shall have the right . . . to be
heard by himself and counsel.” The Indiana Constitution “places a unique
value upon the desire of an individual accused of a crime to speak out
personally in the courtroom and state what in his mind constitutes a
predicate for his innocence of the charges.” Sanchez v. State, 749 N.E.2d
509, 520 (Ind. 2001) (citing Campbell v. State, 622 N.E.2d 495, 498 (Ind.
1993))[2]. As the Seventh Circuit has observed, “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.” United
States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991). Notwithstanding, a
defendant claiming that he was denied his right to allocution carries a
strong burden in establishing his claim. Minton v. State, 400 N.E.2d 1177,
1178 (Ind. Ct. App. 1980).
“The purpose of the right of allocution is 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.” Ross, 676 N.E.2d at
343. A probation revocation hearing is indeed relevant to the defendant’s
sentencing in that it reinstates an existing sentence that returns the
offender back into the confined quarters of jail. Thus, we conclude that
the right of allocution should apply to probation revocation hearings.
At common law, 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 for avoidance or delay of the sentence.” Minton, 400 N.E.2d at
1180. When 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. Id. (citation omitted).
The fact that Vicory was given the opportunity to testify at his
probation revocation hearing demonstrates that the goal of allocution was
largely accomplished. Vicory did in fact address the court and was able to
tell his side of the story. This is essentially what the right of
allocution would have allowed him to do. Vicory testified 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. (See R. at 9-13.) There is no question that Vicory spoke on
his own behalf.
In the present case, the trial court was not “pronouncing a sentence”
and was therefore not required under the statute to ask the defendant
directly whether he wished to make a statement on his own behalf. We
conclude that because Vicory made a specific request to make a statement,
the court should have granted it.
Nevertheless, because Vicory testified at his hearing and because he
has not identified any statement or argument he would have made had the
court permitted him to read his statement, the court’s refusal did not
affect his substantive rights such that reversal is warranted. Ind. Trial
Rule 61.
Conclusion
We affirm the trial court.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in result, agreeing with the analysis of the Court of
Appeals in this case. 781 N.E.2d 766 (Ind. Ct. App. 2003). Accord,
Applewhite v. United States, 614 A.2d 888 (D.C. 1992); State v. Carlsen, 3
P.3d 50 (Haw. 2000); State v. Germaine, 564 A.2d 604 (Vt. 1989).
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[1] After the trial is over and the jury has reached a guilty verdict, but
before the court pronounces the sentence, the court addresses the defendant
and asks him, “Do you know of any reason why judgment should not be
pronounced upon you?” See Ross, 676 N.E.2d at 343 (citing Paul W. Barrett,
Allocution, 9 Mo. L. Rev. 115 (1944)).
[2] Campbell was disapproved on other grounds by Richardson v. State, 717
N.E.2d 32, 49 n.36 (Ind. 1999).