(specially concurring).
I concur in the result but not in the opinion of the court, except with respect to the procedure on remand.
NMSA 1978, Section 32-l-27(A) (Repl. Pamp.1989) states, “A child subject to the provisions of the Children’s Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children’s Code.” (Emphasis added.) The statute did not afford the child a right to allocution in this case for two reasons. First, allocution is not a basic right for adults represented by counsel. Second, in New Mexico only felons, not misdemeanants, are entitled to allocution. When a right is afforded to some adults but not others, I would read Section 32-1-27(A) to say that a child is entitled to the right only if an adult accused of the same misconduct would be entitled to the right. Because the child’s misconduct here would not have constituted a felony, he was not entitled to allocution.
Nevertheless, I concur in reversal because the children’s court pronounced its disposition before the child or his counsel could address the court on the subject.
DEFINITION AND IMPORTANCE OF THE RIGHT OF ALLOCUTION
Allocution is not the right of the defendant to address the court. “At common law the defendant in a felony case had a right, called ‘allocution,’ to be asked formally whether he had ‘any thing to offer why judgment should not be awarded against him.’ ” Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 832 (1968) (quoting 4 W. Blackstone, Commentaries *375). “[Ajllocution is an authoritative address by the court to the prisoner as he stands at the bar for sentence.” Green v. United States, 365 U.S. 301, 307 n. 2, 81 S.Ct. 653, 657 n. 2, 5 L.Ed.2d 670 (1961) (quoting Barrett, Allocution, 9 Mo.L.Rev. 115, 232, at 254 (1944)).
Allocution is a peculiar right. In a sense, it is the right to be advised of another right.
To appreciate this peculiarity, consider what would seem to be an analogous situation. Just as a defendant has the right to address the court before imposition of sentence, a defendant has the right to testify at trial. Indeed, the right to testify at trial would seem to be a more important right than the right to personally address the court at sentencing. Yet, after the state rests its case, the court does not advise the defendant of the right to testify. This is not because courts do not value a defendant’s right to testify. Surely a court would set aside a conviction if the defendant could show that the reason for failure to testify at trial was that the defendant was ignorant of the right to testify. Why, then, when the'right to testify at trial is comparable to the right to speak at a sentencing hearing, is there no analogue to allocution in the former situation?
The answer is history. Allocution was first provided in a context quite different from modern criminal proceedings.
[SJince the common law judge generally had no discretion as to the quantum of punishment in felony cases, the point of his question to the defendant was not to elicit mitigating evidence or a plea for leniency, but to give the defendant a formal opportunity to present one of the strictly defined legal reasons which required the avoidance or delay of sentencing: he was not the person convicted, he had benefit of clergy or a pardon, he was insane, or if a woman, she was pregnant. [Footnotes omitted.]
Note, supra, 81 Harv.L.Rev. at 832-33. “[T]he right of allocution arose at a time when many crimes were punishable by death and when the defendant had no right to be represented by counsel or even to testify on his own behalf * * *.” 3 W. LaFave & J. Israel, Criminal Procedure § 25.1(f), at 118 (1984). See McGautha v. California, 402 U.S. 183, 217-18, 91 S.Ct. 1454, 1472-73, 28 L.Ed.2d 711 (1971). Of. course, since the defendant had no right to counsel and was not permitted to testify at trial, the court had no reason to presume that the defendant would know of the right to speak at sentencing unless the judge so advised.
In the present day, allocution still serves three purposes: (1) it informs defendants (presumably those not represented by counsel) who would otherwise not know of the right, that they have the right to speak before imposition of sentence; (2) it creates a record to avoid future questions about whether the defendant was aware of the right to speak; and (3) it may encourage defendants to speak by suggesting that the judge really cares, really wants to hear from the defendant. These are useful purposes, but they do not raise allocution to the level of a basic right for defendants represented by counsel. If allocution is a basic right, then a defendant also has a basic right to be advised by the court of every other right that may prove similarly useful at trial — not only the right of a defendant to testify, but the right to object to hearsay, the right to exclude witnesses from the courtroom before they testify, etc. The ancient provenance of a right does not make it “basic.”
The weight of authority also suggests that allocution is not essential to fairness for a defendant represented by counsel. In State v. Stenz, 109 N.M. 536, 540, 787 P.2d 455, 459 (Ct.App.1990), we noted the absence of reported decisions granting defendants in misdemeanor cases the right to allocution in the absence of a statute or rule. But see State in Interest of A.H., 115 N.J.Super. 268, 272, 279 A.2d 133, 135 (1971) (“fundamental fairness compels the allowance of allocution” to a juvenile who has been adjudicated delinquent); In re Virgil M., 46 Md.App. 654, 421 A.2d 105 (1980) (juvenile’s right of allocution). In Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), the Supreme Court stated that the failure of a' judge to ask a defendant represented by counsel whether he wished to say anything before imposition of sentence was neither constitutional error nor “a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.”
This authority does not disparage the importance of a defendant’s, or child’s, address to the court before imposition of sentence or disposition. As Justice Frankfurter wrote, “The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. at 304, 81 S.Ct. at 655. Yet, Justice Frankfurter joined in the Supreme Court’s opinion in Hill. The United States Supreme Court has distinguished, as should this court, between the importance of the defendant’s statement and the lesser value of the court’s advising a defendant represented by counsel of the right to speak.
WHAT ADULT RIGHTS ARE AVAILABLE TO CHILDREN UNDER SECTION 32-1-27(A)?
Moreover, even if allocution were a “basic right,” it is not a right afforded all adults. An adult convicted of a felony has the right to allocution. See Tomlinson v. State, 98 N.M. 213, 647 P.2d 415 (1982). An adult convicted of a misdemeanor does not. See State v. Stem.
Thus, it is not immediately apparent whether allocution would be provided under Section 32-1-27(A), which states that a child is “entitled to the same basic rights as an adult.” What “adult” is the statute referring to — a felon or a misdemeanant? The statute must mean “the same basic rights as an adult in a comparable circumstance."
What features of the proceeding against the child should be used to determine whether the “comparable” proceeding against an adult is one that resulted in a felony conviction? The majority looks to the maximum period for which a delinquent child can be committed to state custody— two years — and concludes that the analogous adult proceeding must be one leading to a felony conviction, because an adult can be imprisoned for two years only if convicted of a felony. This approach has some appeal, but it ignores the fact that the consequences — both in terms of the decrease in freedom and later collateral penalties — are substantially less for a child adjudicated delinquent than for a convicted felon.
More importantly, the Children’s Code itself emits a strong signal regarding what criterion is to be used to compare a children's court proceeding to an adult proceeding. The Code provides that a child’s statutory right to a jury trial (children have no constitutional right to a jury trial, at least when the alleged misconduct would not constitute a felony if committed by an adult, see State v. Doe, 90 N.M. 776, 568 P.2d 612 (Ct.App.1977)) depends on the nature of the misconduct with which the child is charged. The child has a right to a jury only if the alleged delinquent acts “would be triable by jury if committed by an adult.” NMSA 1978, § 32-l-31(A) (Repl.Pamp.1989). An adult is entitled to a jury trial if the offense carries a possible penalty in excess of six months. See State v. Sanchez, 109 N.M. 428, 786 P.2d 42 (1990). In other words, a child is not entitled to a jury trial if the alleged misconduct would be a petty misdemeanor if committed by an adult, see State v. Benjamin C., 109 N.M. 67, 781 P.2d 795 (Ct.App.1989); State v. Doe, even though the potential penalty for a child is the same whether the misconduct would be a felony, a misdemeanor, a petty misdemeanor, or even no offense at all if committed by an adult.
An adult’s right to trial by jury is no less precious than the right of allocution. The treatment by the Children’s Code of the right to trial by jury implies that in determining what class of adults the delinquent child should be compared to in determining the rights of the child, the Children’s Code looks to the nature of the misconduct committed by the child rather than to the disposition that could be imposed upon the child. Because the misconduct committed by the child in this case would not be a felony if committed by an adult, Section 32-l-27(A) would not entitle the child to allocution even if the right of allocution afforded a convicted felon were deemed a “basic” right.
GROUNDS FOR REVERSAL
Nevertheless, I would set aside the sentence in this case. Although the United States Supreme Court has not considered whether it is a “constitutional right,” see McGautha v. California, 402 U.S. at 218, 91 S.Ct. at 1472, the right to address the court (either personally or through counsel) before pronouncement of the sentence or disposition should be deemed a “basic right” when life or liberty is at stake, except, perhaps, when the sentence or disposition is mandatory. Cf. State v. Doe, 90 N.M. 404, 564 P.2d 207 (Ct.App.1977) (court violated former statute by denying children’s attorney an opportunity to be heard). That right apparently was violated in this case.
Unfortunately, the recording of the proceeding has vanished. From the rendition of facts upon which we must rely, however, it appears that, in substance, the children’s court announced the disposition before the child or his counsel could have spoken on the issue. Later comment would be, as the children’s court assured those present, “an empty gesture.” Tomlinson v. State, 98 N.M. at 215, 647 P.2d at 417. In these circumstances, reversal is appropriate. We have more than just a failure of the court to advise a child who is represented by counsel of the child’s rights. See In re Doe, 88 N.M. 481, 542 P.2d 61 (Ct.App.1975).