Mathias, J.
Larenda Jones (“Jones”) appeals the order of the Marion Superior Court revoking her placement in community correction and sentencing her to serve the remainder of her executed sentence at the Department of Corrections (“DOC”). …
… the State charged Jones with one count of resisting law enforcement … and one count of battery against a public safety official … Jones entered into a plea agreement with the State … Pursuant to the agreement, Jones was to receive a sentence of three years, with two years on home detention through Marion County Community Corrections and one year suspended to probation. The trial court … sentenced Jones as provided in the plea agreement.
… Jones admitted to violating the terms of her placement on home detention. As a result, the trial court revoked this placement and instead ordered Jones to serve her sentence on work release at the Craine House Residential Center (“Craine House”).
… the State filed an allegation that Jones had violated the terms of her placement at Craine House. The trial court held a hearing on the matter …
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As the State was attempting to discuss credit time, Jones herself interjected and asked the court, “May I please say something?” The trial court responded, “Ms. Jones that time is up.”
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Jones claims that the trial court was required to inform her of the possible release dates for her incarceration. She bases this argument on Indiana Code section 35-38-1-1 …
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Our reading of Indiana Code section 35-38-1-1 is supported by our supreme court’s holding in Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004). In Vicory, the court held that Indiana Code section 35-38-1-5 did not apply to probation revocation hearings because that statute, by its own terms, applied only when the court “pronounce[d] [its] sentence.” … Thus, section 35-38-1-5 does not apply to revocation hearings.
Jones also claims that the trial court denied her the right to allocution. …
… the trial court is not required to ask the defendant at a probation revocation whether he wants to make a statement. However, the court also 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.”
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… Accordingly, we reverse the trial court’s decision to revoke Jones’s placement in work release and remand with instructions that Jones be given the opportunity to make a statement to the court regarding why her placement should not be revoked and why she should not be placed in DOC. The trial court will of course still be free to exercise its considerable discretion in how to weigh Jones’s statement, but Jones nevertheless has a right to personally make a statement.
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Reversed and remanded.
Pyle, J., concurs.
Baker, J., concurs with a separate opinion.
Baker, Judge, concurring.
… I write separately to urge our Supreme Court to revisit its interpretation of the right of allocution as codified in Indiana Code section 35-38-1-5. … First, the right of allocution, in my view, is a fundamental right of every criminal defendant who faces a potential loss of freedom. …
Second, … it would simplify matters considerably to hold, across the board, that trial courts must make this inquiry on any occasion when the court is about to impose incarceration on a defendant. In that way, the inquiry becomes a routine that cannot be overlooked or questioned. …