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The right to allocution

There are a lot of rules and statutes that are impenetrably complex, or fraught with ambiguity.  CrimR 32(A)(1), which governs the procedure for a court to use in imposing a sentence in a criminal case, isn't one of them.  It's quite specific:

At the time of imposing sentence, the court shall. . . address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment

Last week, the 8th and 12th Districts took a look at the rule, with widely differing results.

Rafael Martinez wasn't a particularly sympathetic figure, from the record.  While driving drunk with his kids in the car, he'd lost control of the car and had plowed into a house.  Some poor guy was sitting on the porch, and it collapsed around him, leaving him with substantial injuries.  And this wasn't Martinez' first brush with the law:  he had prior convictions for breaking and entering and drug possession, and both times he'd violated probation.

So I'm not sure what Martinez would've said if given the chance to speak freely at sentencing, or whether the judge would've given it any consideration.  He didn't get the chance, though.  I handled the appeal, and was figuring that the only argument I had was the doomed one that the judge had abused her discretion in giving him a three-year sentence.  But when I read the sentencing transcript again, I noticed something:  the only time Martinez had spoken was in response to questions, and usually pointed ones, by the judge. Fourteen questions, all directed toward the details of the offense, all but two eliciting an answer of no more than eight words. At no time did the judge ask him what he had to say.

So I ran with that, and argued that the judge had denied Martinez his right to allocution. The 8th shot that down last week in State v. Martinez, devoting barely two paragraphs to the argument, holding that a "full review of the record illustrates that during the sentencing hearing, the trial court addressed both defense counsel and Martinez directly, and afforded both a full opportunity to address the court."  Unless a "full opportunity to address the court" means "answering the questions I ask you, and nothing else," the court was apparently working from a different record than the one I saw.  There were other avenues for the court to take in affirming the judgment:  it could have held that the attorney's plea on Martinez' behalf -- which took up four pages of the transcript -- fulfilled that purpose, or that Martinez had waived the contention by not objecting.  There are problems with both those arguments, but they at least are more consistent with what actually happened.

A far more comprehensive treatment of the issue is given in 12th District's decision in State v. HaynesHaynes had been convicted of rape and aggravated burglary, and at sentencing his attorney made a short statement acknowledging that while he believed the jury's decision was in error, he respected it.  He argued for a minimum sentence, based on Haynes' lack of a prior record, noted that Haynes had sent a letter to the court, and stated "he would rest on that."

That's where things ended, and the court decides that wasn't enough.  I don't think any regular reader of this blog is unaware of my normally liberal leanings, but I'm pretty much a strict constructionist when it comes to rules and statutes.  If the rule says the judge "shall address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf," well then, that's what the judge does.  The 12th is of the same mind.  In the court's view, the requirement of allocution is fulfilled only "when the conduct of the court clearly indicates to the defendant that he has a right to make a statement prior to the imposition of sentence."

The State made two arguments in response.  The first was that counsel had invited the error by saying that the "defendant will rest on that" (the letter).  The court finds the attorney's remark ambiguous, and says that the court could have resolved the ambiguity by performing its function and asking the defendant what he had to say.  The State also argued that the error was harmless because the defendant did provide the court with the letter.  Not so, said the court; it is "unfair to judge a defendant's mitigation plea on paper when he is entitled to make that plea in person to the court that is sentencing him."

I'm not so sure the result in Haynes is any more correct than the result in Martinez.  Of special note is that Haynes had gone to trial, and his attorney's remarks that he disagreed with the verdict leads to the inference that, had the judge afforded Haynes an opportunity to speak, he wouldn't have expressed contrition for what he claimed the jury had wrongly convicted him of.  I've been in those situations before, and I'll usually tell the judge that my client is foregoing his opportunity to address the court because he will be appealing the verdict.  I've also been on the other side of that process, and generally when you're writing an appeal you want to leave the court of appeals with at least the impression that the jury might have gotten it wrong.  That's hard to do when the client 'fesses up to his crimes at the sentencing hearing.  (Haynes did in fact appeal; the court rejected his other assignments of error, but remanded it for resentencing so that Haynes would have an opportunity for allocution.)

Where the Haynes court deserves credit is by not shrugging off the right of allocution as some mere formality.  The court notes that while it's not considered a constitutional right, it's firmly rooted in the common-law tradition, and is "both absolute and not subject to waiver due to a defendant's failure to object."  I've never been a trial judge, but based on what I've experienced one of the most important factors in a judge's decision on what sentence to impose is what the defendant says at sentencing, especially the judge's estimation of the defendant's remorse.  I've seen clients talk their way out of prison by sincerely expressing their acceptance of responsibility and sorrow at what they'd done.  I've seen clients talk their way into prison by offering excuses for their behavior and being indifferent to the effects of their actions.  I don't know where Rafael Martinez would have wound up on that spectrum, or even whether what he had to say would've done him any good.  But the rule says he deserved the opportunity to say it, and that's not what he got.

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