Bailey, J.
After a bench trial, Jones was convicted of Battery, as a Level 5 felony. He admitted to his status as a habitual offender. Jones was subsequently sentenced to five years imprisonment, including a three-year habitual offender enhancement. He now appeals.
Jones raises a single issue for our review, which we restate as whether the trial court committed reversible error when it did not ask Jones directly whether he wished to exercise his right of allocution at sentencing, instead making that inquiry through counsel.
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On October 19, 2016, a hearing was conducted during which Jones admitted to being a habitual offender, in exchange for which the State agreed to a maximum sentence enhancement of three years to be added to whatever term of imprisonment the court fixed for the Battery conviction. Prior to hearing argument of counsel, the trial court asked counsel for Jones whether Jones wished to exercise his right of allocution. Jones’s counsel said that Jones did not wish to make a statement, and the court then heard argument of the parties concerning sentencing. At the end of the hearing, the trial court sentenced Jones to two years imprisonment for the Battery charge, enhanced by the agreed-to three year term for Jones’s habitual offender status, yielding an aggregate term of imprisonment of five years.
This appeal ensued.
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A defendant’s right of allocution has existed at common law since 1682, Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996), and was first codified in Indiana in 1905. Biddinger v. State, 868 N.E.2d 407, 410 (Ind. 2007). …
The purpose of the right of allocution is satisfied “[w]hen the defendant is given the opportunity to explain his view of the facts and circumstances.” Vicory, 802 N.E.2d at 426. The right to allocution is “‘minimally invasive,’” requiring only “‘a few moments of court time.’” Id. at 429 (quoting United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). But on appeal, “a defendant claiming that he was denied his right to allocution carries a strong burden in establishing his claim.” Id.
Jones contends that his right of allocution was denied because the trial court asked Jones’s counsel whether Jones intended to speak before sentencing, rather than asking Jones himself. The State argues that Jones lacked any right of allocution at all because, though he proceeded to trial on the underlying Battery conviction, he pled guilty to being a Habitual Offender and thus waived his right. Because Jones thus lacked a statutory right of allocution, the State contends, there was no deprivation of any right.
When a case proceeds to trial and either a jury verdict or a trial court’s finding results in the defendant’s conviction, a statutory right to allocution exists, but no such statutory right exists for a defendant who enters a guilty plea or to defendants in probation revocation proceedings. Biddinger, 868 N.E.2d at 412. The Indiana Supreme Court has held that although no statutory right to allocution exists in probation revocation proceedings and sentencing hearings following a guilty plea, it is error for a trial court to deny the defendant’s request where a defendant directly seeks to exercise the right to allocution. Id. (citing Ind. Const. art. I, § 13; Vicory, 82 N.E.2d at 429). …
We disagree with the State’s contention that Jones lacked a statutory right of allocution because of Jones’s admission of his habitual offender status. Jones’s admission of his status had as its predicate a guilty “finding of the trial court,” I.C. § 35-38-1-5, and the State acknowledges as much. … We think it far from unclear: the underlying offense of which Jones was convicted was the result of a trial to the court, and the statute’s language is mandatory with respect to defendants who proceed to trial. We accordingly conclude that Jones did not waive his right of allocution.
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The allocution statute provides that the court “shall” provide defense counsel an opportunity to make a statement, provides separately that the defendant “may” give a statement, and goes on to require that the court “shall ask the defendant whether the defendant wishes to make such a statement.” I.C. § 3538-1-5. The statute, then, clearly mandates that the trial court direct inquiries concerning statements at the time of sentencing to both defense counsel and the defendant personally.
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The right of allocution is satisfied “[w]hen the defendant is given the opportunity to explain his view of the facts and circumstances.” Vicory, 802 N.E.2d at 426. Jones was not afforded that opportunity in conformance with the statute, which provides that the right to waive allocution is personal to the defendant—not available for waiver by counsel. Thus we conclude that such error was fundamental and mandates reversal of Jones’s sentence.
Reversed and remanded.
Robb, J., concurs. Vaidik, C.J., dissents with separate opinion.
Vaidik, Chief Judge, dissenting.
I respectfully dissent from the majority’s conclusion that the trial court’s failure to personally ask Jones whether he wished to make a statement at sentencing constitutes fundamental error mandating reversal of his sentence.
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… the majority finds that the trial court’s failure to ask Jones personally amounts to fundamental error pursuant to Horton v. State, 51 N.E.3d 1154 (Ind. 2016). I disagree. In Horton, the Indiana Supreme Court found the right to a jury trial to be so important that the trial court must get a personal waiver from the defendant before proceeding to a bench trial and that the failure to do so cannot be waived and is fundamental error. Id. at 1158-60; see also Good v. State, 267 Ind. 29, 366 N.E.2d 1169, 1171 (1977). Our Supreme Court explained that the right to a jury trial is “a bedrock of our criminal justice system,” specifically guaranteed by Article 1, Section 13 of the Indiana Constitution. Horton, 51 N.E.3d at 1158. The same cannot be said about the right of allocution. Moreover, contrary to the right to a jury trial, the Court has held that the right to be personally addressed about the right of allocution can be waived. See Angleton, 714 N.E.2d at 159.
In addition, this is not a situation where the defendant was not informed of his right of allocution. Cf. Owens v. State, 69 N.E.3d 531, 534-35 (Ind. Ct. App. 2017) (reversing and remanding for a new sentencing hearing where the trial court did not ask either defense counsel or the defendant if the defendant wished to make a statement at sentencing). I would therefore affirm the trial court.