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COA: Lack of allocution notice demands resentencing

June 12, 2017

A divided Indiana Court of Appeals remanded a man’s sentencing because a judge failed to directly offer him a chance to speak before sentencing him, instead asking the man’s counsel, who said his client did not wish to speak.

The majority reversed Ivan Jones’ sentence of five years in prison, including a three-year habitual offender enhancement, for his conviction of Level 5 felony battery. Jones had been accused of stabbing a man during a confrontation, and he was found guilty after a bench trial in Marion Superior Court.

The COA majority found that failing to personally offer Jones a right of allocution amounted to fundamental error, and the case was remanded for a new sentencing hearing.

“In light of comparable mandatory statutory language in the allocution and jury waiver statutes, the long tradition of both the jury and allocution rights, and the low demand upon judicial resources of inquiring personally of the defendant relative to the risk of prejudice, we conclude that the trial court’s failure to inquire personally with the defendant concerning allocution was error,” Judge L. Mark Bailey wrote for the majority.

Chief Judge Nancy Vaidik dissented, saying in this case that the failure to directly ask Jones if he wished to speak before sentencing was not fundamental error. She would affirm the sentence.

“In addition, this is not a situation where the defendant was not informed of his right of allocution,” she wrote in Ivan Jones v. State of Indiana, 49A02-1611-CR-2513.
 
In March, another panel of the Court of Appeals reversed the revocation of a woman’s placement in work release after finding her right to allocution at a hearing regarding revocation. In that case, Judge John Baker urged the Indiana Supreme Court to revisit is interpretation of the right to allocution under I.C. 35-38-1-5.

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