Defendants can speak during allocution before sentencing

Michael W. Hoskins
January 1, 2007
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Criminal defendants who plead guilty have the right to make statements in allocution prior to sentencing, the Indiana Supreme Court has ruled.

The unanimous opinion authored by Justice Robert D. Rucker came late Wednesday in Nicholas Biddinger v. State of Indiana, No. 49S05-0608-CR-305.

Biddinger was arrested and charged with various felonies, including murder, in 2004; he pleaded guilty to aggravated battery during the trial in October that year. The agreement provided that parties could argue positions on sentencing, but the executed range could be 10 to 20 years.

At his sentencing hearing, Biddinger's counsel answered "no" when asked about mitigating evidence, but he later said his client wanted to make a statement. The trial court determined that he had no right to allocution where he'd pled guilty. The court allowed a four-page written statement to be introduced as evidence and then allowed Biddinger to give an oral statement expressing his remorse.

Then-Marion Superior Judge Jane Magnus-Stinson sentenced him to 12 years in prison with two years suspended to probation for a total of 10 years executed. Biddinger appealed on grounds that the court erred in refusing to permit him to make a statement in allocution. The Court of Appeals addressed that issue and ruled that even if the trial court had erred, it was harmless because the full written statement had been introduced and no additional information would have affected the sentence. However, the appellate judges didn't address the case authority on the allocution right being good law, and the Supreme Court granted transfer to address that question of whether it's allowed.

"The answer is yes," Justice Rucker wrote. "A defendant who pleads guilty has a right to make a statement in allocution upon request prior to sentencing. In this case the trial court erred by not allowing Biddinger to make a statement in allocution. But the error was harmless. Further, Biddinger has not demonstrated that his 10-year executed sentence to be served in the Department of Correction requires revision. We therefore affirm the judgment of the trial court."

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  5. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise