An Indiana law giving every convicted criminal the opportunity to personally address the judge prior to sentencing increasingly is seen as merely a nice touch instead of a statutory obligation.
On Friday, a divided Indiana Supreme Court agreed to let stand an October 2024 Court of Appeals ruling where Braven Harris, 21, a convicted murderer from Indianapolis, was not asked by his trial judge whether he wanted to exercise his right of allocution before being sentenced to 60 years in prison.
Judge Elizabeth Tavitas, a Lake County native writing for the appellate court, said the failure of Marion Superior Judge Jane Spencer Craney to fulfill her duty to ask Harris if he wanted to personally make a statement on his own behalf was not subject to appellate review because Harris did not object to the omission during his sentencing hearing.
Tavitas also said there's no indication Harris' sentence would have been any different if he did speak, so the judge's failure to ask Harris if he wanted to does not rise to the level of fundamental error warranting correction.
Three of the five members of the Indiana Supreme Court — Justices Christopher Goff, Mark Massa and Geoffrey Slaughter — agreed with that reasoning and voted to deny Harris' petition for transfer, leaving the Court of Appeals decision intact.
However, Chief Justice Loretta Rush, in an 11-page dissent from denial joined by Justice Derek Molter, a Newton County native, said she believed the high court was passing up an opportunity to clarify the right to allocution, clean up conflicting appellate rulings and eliminate Indiana's outlier status of doing nothing when this statutory requirement is ignored.
"Public trust in our courts relies not only on actual fairness and impartiality, but also on the appearance of fairness and impartiality. And so, to uphold these ideals after trial and before a sentence is imposed, our trial courts must comply with their statutory duty to ask the defendant whether they wish to make a statement personally on their own behalf," Rush said.
Rush also rejected the idea that the right to appeal is waived if a convicted criminal fails to object at sentencing when a trial judge omits the opportunity for allocution as required by state law since 1852 to ensure the judge considers all the facts and circumstances the defendant considers relevant before sentencing.
"This is not a case where Harris' counsel was asked whether Harris wished to make a statement and counsel declined; the trial court informed neither Harris nor his attorney of Harris' statutory right to speak," Rush said.
"When the record is devoid of evidence that a defendant knew of their statutory right, it follows that they cannot waive that right by failing to object."
The chief justice said in this case she would have preferred the Supreme Court grant transfer, vacate Harris' sentence, and order a new sentencing hearing at the trial court that complied with state law.
"Declining to grant transfer dilutes a defendant's right to allocution and effectively renders the Allocution Statute advisory," Rush said.
© Copyright 2025, nwitimes.com, Munster, IN