‘Dismayed’ by trial court, COA orders resentencing

An Indianapolis judge who sentenced a defendant to jail without permitting him to speak on his own behalf disregarded state law and violated the defendant’s rights, a panel of the Indiana Court of Appeals held in a stern ruling.

“We are dismayed by the trial court’s disregard for the statutes that governs a defendant’s rights during sentencing. Our General Assembly clearly intended for a defendant to be advised of his right to speak at sentencing and be able to speak if he wanted to do so; the statute mandates that, ‘before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement,” Court of Appeals Judge John Baker wrote in Devonte Owens v. State of Indiana, 49A02-1605-CR-1142.

Owens was convicted of Class A misdemeanor carrying a handgun without a license after an April 2016 bench trial before Marion Superior Judge Clayton Graham. The judge proceeded to sentence Owens and remand him into the sheriff’s custody over his defender’s pleas. His public defender argued Owens was in college and would lose a job for which he had not missed work and urged the judge to allow Owens to self-report to community corrections.

After Graham sentenced Owens to 365 days in jail with 271 days with four days suspended and ordered him into custody, his defender asked if Owens could offer testimony, the judge refused. According to the record, Graham ultimately said, “He is going to jail. He is going to jail and he’ll be picked up (by community corrections) and that’s my ruling. Thank you.”

The COA agreed with Owens’ argument on appeal that he and his counsel were denied due process, citing Indiana Code 35-38-1-5, which requires a judge to ask a defendant before pronouncing sentence whether the defendant wishes to make a statement. 

“The record indicates that the trial court judge had made up his mind before pronouncing the sentence and did not feel obligated or interested to hear what defense counsel or Owens had to say, beyond the brief, curtailed statement defense counsel had already made on Owens’ behalf,” Baker wrote. This resulted in “a clear denial of Owens’s right to due process and abdication of the trial court’s statutory obligations.”

“We understand that trial courts are busy, but to be so curt with defendants and their counsel, as the trial court was here, is penny wise and pound foolish — the denial of due process only leads us back to where defense counsel wanted us to be during sentencing, but at the expense of taxpayers. … We take this opportunity to remind trial courts of their statutory duty to afford criminal defendants the rights that our General Assembly intended them to have during sentencing,” Baker wrote, reversing and remanding the case for resentencing.


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