Attorneys for Appellant Attorneys for Appellee
Kurt Young Steve Carter
Nashville, Indiana Attorney General of Indiana
Ann M. Sutton Zachary J. Stock
Indianapolis, Indiana Deputy Attorney General
Office of the Attorney General
Appeal from the Marion Superior Court, No. 49G02-9812-CF-197275
The Honorable Robert Altice, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0204-CR-165
January 29, 2004
Chad Vicory had multiple problems complying with the terms of his probation, and the trial court held a hearing on a petition to revoke. The court heard evidence and argument and announced that probation was revoked. Vicory asked permission to read a statement, which the court declined. He now questions whether the right of allocution should extend to include probation revocation hearings. We hold that it should.
The court ordered Vicory to enroll at AGAPE House, a halfway house.
AGAPE House terminated his stay for a probation violation. The court gave
Vicory two weeks to enter another halfway house, one of the conditions of
his probation. Two probation officers spoke to Vicory about entering another halfway
house, and he said he was accepted into another program but did not
present any evidence to demonstrate that this was so. (R. at 4,
On February 12, 2002, a petition to revoke Vicorys probation was filed, alleging that Vicory failed to comply with the AGAPE House program, maintain full-time employment, and submit to a urinalysis test. Vicory had said he was employed at a restaurant, but probation officer Melanie Payne learned that Vicory had been fired three weeks prior. Moreover, on February 7, 2002, Vicory did not report for a drug test when called because, according to him, he did not drive.
Finding that Vicory violated his probation, the court ordered his previously suspended sentence
to be executed. It then asked Vicory if he wanted to appeal.
Vicory responded by asking if he could read a statement. The
court denied his request and asked Vicory again if he wished to appeal.
Vicory replied affirmatively.
The Court of Appeals affirmed the trial courts decision and held that Vicory was not denied the right to allocution because he was not being sentenced under Ind. Code § 35-38-1-5. Vicory v. State, 781 N.E.2d 766, 769 (Ind. Ct. App. 2003). The Court further noted that the right to allocution does not apply to probation revocation hearings. Id. We granted transfer.
The State also asserts that Vicory waived his claim of error because he
failed to object to the denial of his alleged right to allocution during
the trial. It relies on Robles v. State, 705 N.E.2d 183, 187
(Ind. Ct. App. 1998), in which the Court of Appeals noted that a
person cannot sit idly by, permit the trial court to make an error,
and attempt to take advantage of the error at a later time.
Once the court denied Vicorys request to read his statement, however, the right
to appeal was properly preserved.
The common law recognized the right of allocution as early as 1682.
Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996) (citing Jonathan Scofield Marshall,
Comment, Lights, Camera, Allocution: Contemporary Relevance or Directors Dream?, 62 Tul. L.
Rev. 207, 209 (1987)). The right of allocution generally presents itself as
a pre-sentencing procedure and we have addressed the right of allocution in such
See footnote Whether one is entitled to the right to allocution during a probation
revocation hearing, however, is an issue of first impression.
As the State correctly points out, at a probation revocation hearing, a sentence
has already been imposed on a defendant but it has been suspended.
(Appellee Br. at 3;
see also Mingle v. State, 182 Ind. App. 653,
660, 396 N.E.2d 399, 405 (1979) (the imposition of a suspended sentence following
a violation of the probation hearing is not a sentencing). Vicory had
already been sentenced to six years, with four years suspended. The trial
court did not pronounce a sentence within the meaning of Indiana Code §
35-38-1-5 at the probation revocation hearing. Rather, it decided that the previously
suspended sentence should be executed.
Because the court does not pronounce a sentence at a probation revocation hearing,
the judge is not required to ask the defendant whether he wants to
make a statement, as provided by Indiana Code § 35-38-1-5. But 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.
Article 1, section 13 of the Indiana Constitution provides in part: In
all criminal prosecutions, the accused shall have the right . . . to
be heard by himself and counsel. The Indiana Constitution places a unique
value upon the desire of an individual accused of a crime to speak
out personally in the courtroom and state what in his mind constitutes a
predicate for his innocence of the charges. Sanchez v. State, 749 N.E.2d
509, 520 (Ind. 2001) (citing Campbell v. State, 622 N.E.2d 495, 498 (Ind.
See footnote . As the Seventh Circuit has observed, The right of allocution is
minimally invasive of the sentencing proceeding; the requirement of providing the defendant a
few moments of court time is slight.
United States v. Barnes, 948
F.2d 325, 331 (7th Cir. 1991). Notwithstanding, a defendant claiming that
he was denied his right to allocution carries a strong burden in establishing
his claim. Minton v. State, 400 N.E.2d 1177, 1178 (Ind. Ct. App.
The purpose of the right of allocution is to give the trial court
the opportunity to consider the facts and circumstances relevant to the sentencing of
the defendant in the case before it. Ross, 676 N.E.2d at 343.
A probation revocation hearing is indeed relevant to the defendants sentencing in
that it reinstates an existing sentence that returns the offender back into the
confined quarters of jail. Thus, we conclude that the right of allocution
should apply to probation revocation hearings.
At common law, the right of allocution was not given to seek mitigating
evidence or a plea for leniency, but rather to give the defendant a
formal opportunity to show one of the strictly defined legal grounds for avoidance
or delay of the sentence. Minton, 400 N.E.2d at 1180. When
the defendant is given the opportunity to explain his view of the facts
and circumstances, the purpose of the right of allocution has been accomplished.
Id. (citation omitted).
The fact that Vicory was given the opportunity to testify at his probation
revocation hearing demonstrates that the goal of allocution was largely accomplished. Vicory
did in fact address the court and was able to tell his side
of the story. This is essentially what the right of allocution would
have allowed him to do. Vicory testified about why his probation should
not be revoked and gave the trial court the opportunity to consider facts
and circumstances relevant to the revocation of his probation. (See R. at
9-13.) There is no question that Vicory spoke on his own behalf.
In the present case, the trial court was not pronouncing a sentence and was therefore not required under the statute to ask the defendant directly whether he wished to make a statement on his own behalf. We conclude that because Vicory made a specific request to make a statement, the court should have granted it.
Nevertheless, because Vicory testified at his hearing and because he has not identified
any statement or argument he would have made had the court permitted him
to read his statement, the courts refusal did not affect his substantive rights
such that reversal is warranted. Ind. Trial Rule 61.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in result, agreeing with the analysis of the Court of Appeals in this case. 781 N.E.2d 766 (Ind. Ct. App. 2003). Accord, Applewhite v. United States, 614 A.2d 888 (D.C. 1992); State v. Carlsen, 3 P.3d 50 (Haw. 2000); State v. Germaine, 564 A.2d 604 (Vt. 1989).