Court: Connecticut Appellate Court; March 20, 2001; Connecticut; State Appellate Court
The court found Edward Hedman in violation of his probation, revoked it, and sentenced him to serve the remaining term of his original sentence for failing to obtain required alcohol abuse testing, treatment, and counseling. The sole issue on appeal is whether the court was required to offer Hedman the opportunity to personally address the court before sentencing, as outlined in Practice Book 43-10 (1) and (3). Hedman argues that his right to allocution necessitates that the court inquire if he wishes to make a statement, rather than allowing only his counsel to speak on his behalf. The court agrees that, although the issue was not preserved, it is reviewable under the plain error doctrine.
A probation hearing consists of two phases: an evidentiary hearing to determine if a violation occurred, followed by a discretionary phase where the court assesses whether the purposes of probation are still being served. The appellate court will uphold a sentence unless there is a manifest abuse of discretion. Hedman contends that an injustice occurred during the dispositional phase, asserting the court violated his right to allocution by not asking him if he wanted to speak. Although defense counsel did not claim that Hedman waived this right, the court only asked counsel if they wished to speak.
The critical legal question is whether the trial court has an affirmative duty to ask the defendant if he wants to address the court at sentencing or if the defendant's opportunity to speak hinges on a request from himself or his attorney. The interpretation of Practice Book 43-10 indicates that the defendant has at least the right to be heard upon request. The court confirms that Practice Book 43-10 (3) is applicable during probation violation hearings.
In State v. Strickland, 243 Conn. 354, the court determined that a defendant must be afforded a reasonable opportunity for allocution following a violation of probation. If a court imposes a sentence and adjourns immediately afterward, it may infringe upon this right, as established in State v. Johnson, 50 Conn. App. 46. The court asserted that neither the defendant's testimony nor counsel's arguments during the hearing can substitute for the right of allocution. If a new dispositional phase hearing is warranted due to a violation of this right, it should be presided over by a different judge.
The ruling also highlights the lack of a definitive appellate court decision on whether Practice Book 43-10 mandates a trial court to inquire if a defendant wishes to speak before imposing a sentence during probation violation hearings. The discussion extends to the concept of plain error review, indicating that statutory noncompliance, particularly regarding fundamental rights, can constitute plain error, as supported by several precedents. The right of allocution is recognized as a fundamental right, deeply rooted in common law and codified in Practice Book 43-10, allowing defendants to make statements and present mitigating information before sentencing. This right, while not explicitly guaranteed by the federal constitution, significantly impacts personal liberty and is upheld by the traditions of common law.
Allocution is defined as a formal inquiry where a court asks defendants if they have anything to say before sentencing, as established in Ballentine’s Law Dictionary. The case of State v. Strickland highlights the importance of this right, where the court denied a defendant the opportunity to speak despite asking defense counsel. The Connecticut Supreme Court, referencing Green v. United States, emphasized that defendants should have the chance to personally address the court, as effective counsel cannot fully represent a defendant's perspective.
In the current case, the court neither denied a request for allocution nor inquired if the defendant wished to speak prior to sentencing. Citing Practice Book 43-10 (3), the court must ask defendants if they want to provide a personal statement or submit mitigating information before sentencing. Notably, cases like Green and Hill, while not directly appealing sentencing, affirm the right to allocution, rooted in Federal Rule of Criminal Procedure 32(a), which mandates that defendants be given an opportunity to speak before sentencing.
Connecticut's Practice Book 43-10 parallels the federal rule, enhancing the requirement for personal statements from defendants. The court concludes that the right to allocution, as recognized in common law, is still relevant, and any failure to provide this opportunity necessitates a review for plain error. The analysis of whether plain error exists in this case diverges from traditional assessments, indicating the need for corrective measures.
The existence of plain error is determined by whether failing to reverse a judgment would lead to injustice or if a specific trial error significantly affected the trial's outcome. In this case, the focus is on a posttrial omission of a mandated right rather than trial errors. Not all situations necessitate a harmless error analysis; some plain errors, particularly those involving structural defects, do not require such analysis. The omission in this case is deemed non-harmless, as it can never be harmless. The failure to allow the defendant to speak before sentencing raises questions about its impact on the sentence, as it is unclear how the defendant's input might have influenced the court. For errors mandated by rules or statutes linked to constitutional rights, automatic reversal may be warranted without a harmless error analysis. Even if a harmless error analysis were applicable, the state bears the burden of proving the error's harmlessness beyond a reasonable doubt. In this instance, the court's failure to give the defendant the opportunity to speak is significant, as it is uncertain whether the sentence would have been the same had the defendant been allowed to address the court. The right of allocution, as established in State v. Strickland, requires the trial court to ask defendants if they wish to speak before sentencing. Thus, the failure to inquire if the defendant wished to speak necessitates an automatic remand for resentencing.
Strickland does not reference State v. Carr, which determined that a sentencing court's denial of a defendant's request to speak before sentencing does not constitute a constitutional violation. In Carr, the relevant rule of practice (Practice Book 2330 (2)) was not applicable as it was enacted after the defendant's sentencing. While Carr acknowledged the Federal Rules of Criminal Procedure, which require an opportunity for defendants to speak, it clarified that any error regarding allocution would lead to a sentence reversal only, requiring remand for reimposition after the opportunity for allocution is provided. Strickland's case questions whether Connecticut's Practice Book 43-10 (3) mandates a court to ask defendants if they wish to speak prior to sentencing. Although Carr does not directly address this, it supports the notion that the procedural right to allocution is important. The judgment was reversed solely regarding the sentence, with remand ordered for a different court to address the defendant's allocution rights. The court affirmed all other aspects of the judgment, as there was sufficient evidence for a violation found by the court. Golding review requires a constitutional claim, which was not present here due to the procedural nature of the allocution rule. However, a potential state constitutional right exists under Connecticut law, asserting a defendant's right to be heard in criminal prosecutions.
The courts have not yet recognized the right of allocution under the relevant section but have affirmed the right of self-representation, as established in State v. Day. The current case is subject to plain error review, and the question of whether the Connecticut constitution's Article First, Section 8 supports Golding review is not addressed. In State v. Johnson, a claim regarding the right of allocution was assessed under supervisory powers before the Supreme Court’s decision in State v. Strickland, which later confirmed this right during probation violation hearings. The present case follows Strickland and could potentially be reviewed under supervisory powers due to its significance. Practice Book 43-10 mandates that before sentencing, defendants must be afforded an opportunity to speak and present mitigating information. The ruling in this case is confined to timely direct appeals from sentencing. Federal Rule of Criminal Procedure 32(a), amended in 1966, requires courts to personally address defendants about making statements before sentencing, supported by precedents in Green and Hill, which stress the necessity of this procedure but do not classify a violation as rendering a sentence illegal. Notably, State v. Carr does not cite Green, and Strickland does not reference Hill.
