Defendant Who Requests Right To Speak Should Be Allowed To Speak, COA Rules

Olivia Covington for www.theindianalawyer.com

A Marion County woman will be given an opportunity to urge the court not to revoke her placement in a work release program after the Indiana Court of Appeals held Thursday that the trial court had violated her right to allocution by refusing to let her speak.

In Larenda Jones v. State of Indiana, 49A05-1606-CR-1433, Larenda Jones pleaded guilty to Level 5 felony battery against a public safety officer and was sentenced to three years, with two years on home detention through Marion County Community Corrections and one year suspended to probation.

A few months after her sentencing, Jones admitted to violating the terms of her home detention, so the Marion Superior Court revoked her home detention placement and instead ordered her to a work release program at the Craine House Residential Center. However, the state soon presented evidence alleging that Jones had gotten into physical and verbal altercations with other inmates at the center, requiring the intervention of the Craine House staff.

Jones testified at a subsequent hearing that she had not been taking her medications for her mental health issues and further claimed that the two incidents in question were not as bad as the state had presented them to be. However, the trial court once against found that Jones had violated the terms of her placement, so she was ordered to serve two years in the Department of Correction and one year on “strict compliance” probation.

During a discussion about credit time, the trial court denied Jones’ request to interject and further told her that it could not provide her with a specific release date from the DOC. On appeal, Jones claimed that the court was required to inform her of possible release dates under Indiana Code 35-38-1-1, but the Indiana Court of Appeals disagreed in a Thursday opinion.

Judge Paul Mathias, writing for the appellate court, said the panel agreed with the state’s argument that I.C. 35-38-1-1 only applies to when the trial court is pronouncing an initial sentence, not a sentence related to probation revocation proceedings.  The appellate court based that decision on the Indiana Supreme Court’s holding in Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004), which dealt with a similar issue under I.C. 35-38-1-5.

However, the appellate panel agreed that the court had denied Jones’ right to allocution.  Under Vicory, the court 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.”

“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,” Mathias wrote.

The appellate court, therefore, reversed the revocation of Jones’ placement in work release and remanded with instructions to allow her to make a statement to the court as to why her placement should not be revoked.

Judge John Baker, writing in a separate concurring opinion, urged the Indiana Supreme Court to revisit its interpretation of the right of allocution under I.C. 35-38-1-5.