Devonte Owens v. State of Indiana

FILED

Jan 31 2017, 8:53 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Suzy St. John Curtis T. Hill, Jr.

Marion County Public Defender Attorney General of Indiana

Indianapolis, Indiana

Katherine Modesitt Cooper

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Devonte Owens, January 31, 2017

Appellant-Defendant, Court of Appeals Case No.

49A02-1605-CR-1142

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Clayton A.

Appellee-Plaintiff Graham, Judge

Trial Court Cause No.

49G07-1508-CM-28999

Baker, Judge.

Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017 Page 1 of 9

[1] Devonte Owens appeals his sentence for Carrying a Handgun Without a

License,1 a Class A Misdemeanor, arguing that he was denied due process at his

sentencing hearing. Finding that Owens did not receive due process, we reverse

and remand for a new sentencing hearing.2

Facts

[2] On August 15, 2015, Officer Brett Bousema of the Indianapolis Metropolitan

Police Department made a traffic stop after observing a car make several traffic

violations. Officer Bousema asked the driver, Quina Simon, and the two

occupants in the car for identification. One passenger identified himself as

Owens, and the other identified himself as a juvenile. Officer Bousema asked

whether there were any weapons in the car, and each of the occupants said

there were not. After finding that Simon’s driver’s license was suspended but

that Owens had a valid driver’s license, Officer Bousema asked Simon and

Owens whether they could switch seats. When Officer Bousema opened the

door to the vehicle, he observed a handgun between the passenger seat and the

car door.

1

Ind. Code § 35-47-2-1.

2

Owens also argues that his probation fees must be vacated, but because we are reversing and remanding on

the first issue, we need not discuss this second issue in detail here. We note that the trial court’s original

sentencing order provided for “[p]robation on a sliding fee scale,” Appellant’s App. p. 11, but the amended

sentencing order omitted this part about probation fees to be paid on a sliding fee scale. We encourage the

trial court to clarify any probation fees assessed to Owens.

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[3] The State charged Owens with carrying a handgun without a license, a Class A

misdemeanor. After an April 25, 2016, bench trial, the trial court found Owens

guilty as charged. The trial court remanded Owens to the custody of the

Marion County Sheriff, at which time the following exchange occurred:

Defense Counsel: Judge, Mr. Owens is working, he’s a college

student, he will lose the job that he just received. We would ask

that we either proceed to sentencing today, or that he be allowed

to self-report. He’s not missed work.

The Court: Who says he’s going to be going to Community

Corrections?

Defense Counsel: No, self-report for sentencing. He’s not

missed court. He does not have a significant criminal history.

The Court: Well, when you go to trial, you expect to go to jail

today. Why are we—self-report for what?

Defense Counsel: If we’re not proceeding to sentencing today,

that he could report to sentencing.

The Court: All right. Right. Well, we will—he has two days

credit, 365 days Marion County Jail—he has two actual days

credit, so that would be four, so it will be 271 suspended. He’ll

be placed on probation for 275 days and that will be reporting

probation. He’ll be assessed a statutory Safe School fee of $200,

fine in the amount of $100 and court costs in the amount of $183.

Public defender recoupment fee—did he pay his public defender

recoupment fee? He was assessed back on August the 16 of 2015.

Did you pay your public defender recoupment fee, Mr. Owens?

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The Defendant: No.

The Court: All right. Well, that can be paid during probation,

$50 public defender recoupment fee. The gun will be disposed

of. I need an order. What I’ll do—you’ll be remanded to

custody. However, I will release you to Marion [C]ounty,

Community Corrections so that you can serve the balance of

your sentence on the Marion County Community Corrections

Home Detention Component. You will be placed on a sliding

fee scale and/or reduced fee schedule, but you will-be going into

custody right now. We’ll place him on the list so they’ll either

pick you up tomorrow or the next day.

Defense Counsel: Judge, may we be heard as to sentencing,

Judge, the mitigating factors.

The Court: We just submitted the sentencing.

Defense Counsel: Understand, but we didn’t have an

opportunity to argue, or to present argument for sentencing.

The Court: Go ahead.

Defense Counsel: I can’t elicit testimony from my client?

The Court: I mean, the Court has made its ruling. The Court

has made its ruling.

Defense Counsel: If he gets taken into custody today, he’s going

to lose—

The Court: Well, he’s going to get an opportunity to go to

Community Corrections.

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Defense Counsel: And there’s been individuals that pled guilty

here today for the same offense and—

The Court: That is not—that is not—

Defense Counsel: —were not taken into custody.

The Court: And that was by plea agreement.

Defense Counsel: That’s correct.

The Court: This is not a plea agreement, lest I remind you,

Ms.—this is a trial.

Defense Counsel: That’s correct. He exercised his right to trial.

The Court: And that’s fine. And the Court made its ruling. So

he will be taken into custody. The Court will allow him to go to

Community Corrections, but they’re going to pick him up. But

he is going in to custody today. And then he’s going to report to

probation. He’ll be allowed to report to Community Corrections

then he’s going to report to probation when they pick him up.

Defense Counsel: We would just ask that he be allowed to self-

report to Community Corrections tomorrow morning, it would

save the county expenses from him being taken into custody

tonight, having to be picked up tomorrow, which does not

usually occur within one day.

The Court: I’ve made my ruling.

Defense Counsel: He’d be able to maintain his employment to

pay for court costs.

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The Court: He is going to jail. He is going to jail and he’ll be

picked up and that’s my ruling. Thank you.

Tr. p. 105-109.

[4] The trial court sentenced Owens to 365 days, with four days of credit for time

served, 271 days suspended to be served on probation, and 90 days to be served

through Marion County Community Corrections. The trial court amended the

sentence, changing the 90 days to be served through Marion County

Community Corrections to 90 days to be served through Marion County

Community Corrections Home Detention. The trial court also imposed a fine

and fees. Owens now appeals.

Discussion and Decision

[5] Owens argues that the trial court denied him due process during sentencing

when it failed to advise him of his right to speak on his own behalf, failed to

give him an opportunity to make a statement, and failed to allow his counsel to

make a meaningful sentencing argument. We agree.

[6] To resolve the issue, we turn to our statute governing the right of allocution.

Indiana Code section 35-38-1-5 provides that:

When the defendant appears for sentencing, the court shall

inform the defendant of the verdict of the jury or the finding of

the court. The court shall afford counsel for the defendant an

opportunity to speak on behalf of the defendant. The defendant

may also make a statement personally in the defendant’s own

behalf and, before pronouncing sentence, the court shall ask the

defendant whether the defendant wishes to make such a

Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017 Page 6 of 9

statement. Sentence shall then be pronounced, unless a sufficient

cause is alleged or appears to the court for delay in sentencing.

Emphases added. “‘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.’” Vicory v. State, 802 N.E.2d 426, 429 (Ind.

2004) (quoting United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). The

right of allocution serves “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.” Id. (citation and quotation marks omitted). A defendant who claims

that he was denied his right to allocution bears a strong burden in establishing

his claim. Id.

[7] Here, the record reveals that, prior to the sentencing portion of the hearing,

Owens’s counsel made a very brief statement on Owens’s behalf, when counsel

stated that “Mr. Owens is working, he’s a college student, he will lose the job

that he just received. We would ask that we either proceed to sentencing today,

or that he be allowed to self-report. He’s not missed work.” Tr. p. 105. The

record also reveals that the trial court did not advise Owens of his right to speak

on his own behalf or give him an opportunity to make a statement, despite his

attorney’s efforts to secure for Owens an opportunity to speak on his own

behalf. We do not find that the brief, pre-sentencing statement made by

Owens’s attorney qualifies as a meaningful sentencing argument made on

behalf of Owens. The record indicates that the trial court judge had made up

his mind before pronouncing the sentence and did not feel obligated or

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interested to hear what defense counsel or Owens had to say, beyond the brief,

curtailed statement defense counsel had already made on Owens’s behalf. The

trial court’s failure to allow Owens’s counsel to make a meaningful sentencing

argument, advise Owens of his right to speak on his own behalf, or provide

Owens an opportunity to make a statement constitutes a clear denial of

Owens’s right to due process and an abdication of the trial court’s statutory

obligations.

[8] We are dismayed by the trial court’s disregard for the statute 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 to 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.” I.C. § 35-38-1-5 (emphasis added). Thus, a trial court

must advise a defendant of this right and provide him with an opportunity to

speak, if he so chooses. 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 our

taxpayers. See Ind. Judicial Conduct Rule 2.8(B) (“A judge shall be patient,

dignified, and courteous to litigants . . . lawyers . . . and others with whom the

judge deals in an official capacity . . .”). 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.

Court of Appeals of Indiana | Opinion 49A02-1605-CR-1142 | January 31, 2017 Page 8 of 9

[9] The judgment of the trial court is reversed and remanded for a new sentencing

hearing.

Mathias, J., and Pyle, J., concur.

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