Terrance Donte Cox, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Terrance Cox appeals the trial court's revocation of his probation. He argues that he is entitled to a new sentencing hearing because the trial court's confrontational remarks and numerous interruptions during the hearing amounted to bias and deprived him of his right to allocution. Finding that the trial court's comments did not exhibit partiality and Cox exercised his right to allocute, we affirm.

Facts and Procedural History

[2] In October 2017, Cox struck his live-in girlfriend, B.C., in the face with his hand during an argument about money and then threatened to hit her with a hammer. In March of 2019, he pled guilty to Level 5 felony Intimidation and Level 6 felony Domestic Battery pursuant to a plea agreement in Cause 49G01-1712-F5-47838 (“Cause F5-47838”). In exchange for his guilty plea, he received a suspended sentence of four years for the intimidation conviction concurrent with a one-year suspended sentence for the domestic battery conviction.

[3] On March 4, 2022, the State filed a notice of probation violation against Cox for committing new criminal offenses in Cause number 49D27-2203-F5-5906 (“Cause F5-5906”). After a jury trial in that Cause, the trial court entered judgment of conviction for Level 6 felony Domestic Battery.

[4] On December 14, 2023, the trial court combined the sentencing hearing in Cause F5-5906 with the probation revocation hearing in Cause F5-47838.¹ Cox's mother, Carla Taylor (“Taylor”), spoke on her son's behalf. She stated that Cox was involved in “positive things[,]” including being a good father, being employed, ministering to youth, and teaching people the skills of conflict resolution. Tr. Vol. 4 at 55. The trial judge interjected, asking “[w]hy does he keep getting in trouble for fighting or beating people up or battery[?]” Id. The judge listed off Cox's past offenses of criminal recklessness with the use of body armor, Level C felony battery, domestic battery, intimidation, as well as another domestic battery offense during his period of probation and noted, “[h]e was on probation, and he continues to commit crimes. And it's always violent in nature.” Id. at 57. Taylor attempted to describe an incident where Cox hit a boy at school when he was seventeen, but the trial judge interrupted and clarified, “I'm talking about the women that he ․ continues to beat up.” Id. Cox's mother insisted that the female victim knew Cox had been on probation and that it was “her way of getting even[.]” Id. The judge rejected Taylor's explanation and informed her that the victim “ended up in the hospital.” Id.

[5] Taylor stated that her son was “trying to turn his life around[,]” but the trial judge remarked that “he's not ․ doing it the right way” and asked if she knew about Cox's 2019 intimidation conviction in which he pulled a deadly weapon on the victim. Id. at 58. Denying knowledge of the conviction, Taylor assured the judge that “there's an error somewhere” because she and her son “talk about everything.” Id.

[6] Taylor told the trial court her son takes court supervision seriously, to which the trial court interrupted, “[w]ho is [B.C.]?” Id. at 61. When Taylor responded that she had “no idea[,]” the trial court stated:

“Well, that's the one he pulled a deadly -- a hammer on, and threatened her. And – [he] -- plead guilty to five 2 [years for Level 5 felony intimidation and Level 6 felony domestic battery.] Threatened to commit -- told her he was going to kill her when confronting her about money. That's what he pled guilty to.

Id. Cox's mother assured the trial court that she understood and was “not trying to be confrontational.” Id. at 62. The trial court responded with more details, stating:

He stole $3,000 from her, and then tried to hide from her, and when she came to get her money back, he pulled a hammer on her, and he pled guilty to it. And he has 1440 days hanging over his head, and if he got that kind of sentence, that he was not going to prison for, and then the minute somebody makes him mad, he puts her in the hospital?

Id. at 63.

[7] After Cox was sworn in, the trial court turned to the information Cox provided in his presentence investigation report (“PSI”) and had the following dialogue with him:

COURT: So[,] did you go in the Navy?

COX: I was a recruit for the Navy Seals UDT program, underwater demolition technicians, the sniper program.

COURT: Why would you tell probation that you were honorably discharged, and you were in the Navy from 2010 to 2014, and you were a sniper, and that you were diagnosed with PTSD, and you left the military because you didn't want to be a killer?

COX: No, that's not what I told the lady.

․

COURT: Reported being in the Navy from 2010 to 2014. Indicated honorably discharged. ․ Also said stationed in San Diego and Virginia, which your mother has said is not true.

COX: I didn't say that, Your Honor. I did not say that I was stationed in there. I told her -- I told her about the places where I was to -- where I would be going to, and all those things. And I said I was not honorably discharged. I didn't go because I didn't want to be a killer.

Id. at 68-69, 73.

COURT: [You] were found guilty of domestic battery and you had a prior. It is a felony.

COX: Yes, ma'am. I –

COURT: While you were on probation for –

COX: Yeah.

COURT: -- a battery on someone else, and intimidating someone else, and using a hammer on somebody else.

COX: Oh, that situation where I signed that plea bargain? I was just hammering -- I was nailing up the [R]evelations in my prayer room. And I pled -- I signed the plea bargain with you.

Id. at 71.

[8] The trial court reprimanded Cox for blaming the victims of his offenses, “downplaying [his] role,” and lying to probation. Id. at 72. Cox expressed remorse “for everything [he] ever did in [his] life” and advised the court that if he was put on “GPS monitor[ing] or probation, [he] will do everything 100 percent” and would “never get in trouble again[.]” Id. at 74. The trial court replied, “[e]very woman that you are in a relationship with, you beat up.” Id. When questioned by his attorney, Cox stated that he was required to do twenty-six weeks of “[b]atter[ers] intervention” classes during his probationary period in Cause F5-47838. The trial judge interrupted and generally remarked:

But going to those classes is supposed to change his behavior, and his behavior doesn't change. That's what he doesn't get. He blames the victim and, according to [his mother], doesn't take accountability for any of his actions. He lies, which is clear, that he lied to probation, and twists, even to make himself look like a victim. And that was clear also from his mother's testimony.

Appellant's App. Vol. 2 at 23; Tr. Vol. 4 at 77.

[9] The trial court also read excerpts of the victim impact statement to Cox during his testimony. Asked by his attorney if there was anything he wished the trial court to know before the court pronounced his sentence, Cox pleaded his case:

Your Honor, if you give me a chance. I will complete house arrest. I will complete probation, and I would even check in with you to show you, and that -- in the time of whatever you sentence me to, you will see that I would never get in trouble. I will be married, and I will show you how well of a guy, that I am remorseful. I will be a role model citizen, and I will show you that I am very, very, very, very sorry for ever, ever being arrested in my life. Please give me a chance so I can raise my daughter, so I can get my surgeries done, so I can get my health together, and I will be willing to come and check in to you every week, while you can put me on house arrest and GPS and probation. I will check in with you, and I can guarantee that you will never ever have to see me again in your life. Once I complete it, I will never ever get in trouble again. I've learned my lesson, and I do want to show you that I am very sorry, and I'll be a role model citizen, and won't do anything and -- to ever be in trouble ever again. I am very, very sorry, Your Honor. I am. And I have a -- my daughter just turned three, and she needs me. If you give me house arrest and probation, I will come to your court and check in with you every week, and you will never ever have to see me again in your life. And it'll be a success story. And you'll be able to say, you know what, Terrance? I gave you a chance and you proved me right. You did the right thing and you've never come back to me ever again. I won't let you down. When you put me on house arrest, I completed it all.

Tr. Vol. 4 at 79-80. The trial court merely responded, “[a]ll right. You're not getting house arrest.” Id. at 80.

[10] At the close of the evidence, the trial court revoked Cox's 1,440-day suspended sentence for violating his probation and ordered him to serve 1,000 days at the Department of Corrections, with the last 440 days on work release.

Discussion and Decision

1. Judicial Bias

[11] Cox asserts that the trial judge's remarks during the sentencing hearing expressed bias and impartiality that placed him in jeopardy of receiving a higher sentence. He claims the trial court donned “the cap of the prosecutor” by asking questions that were intended to discredit the witnesses and by confronting them with evidence that countered their testimony. Appellant's Br. at 15.

[12] Conceding that he did not object to the trial judge's remarks, Cox waived the issue for our review. Woods v. State, 98 N.E.3d 656, 664 (Ind. Ct. App. 2018) (where a defendant fails to object to a judge's comments, the issue of bias is waived for our review), trans. denied. “An appellant who seeks to overcome waiver must demonstrate fundamental error[.]” Id. Fundamental error “is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Blaize v. State, 51 N.E.3d 97, 102 (Ind. 2016), cert. denied 580 U.S. 821 (2016).

[13] Judges are presumed to be unbiased. Rochefort v. State, 177 N.E.3d 113, 118 (Ind. Ct. App. 2021), trans. denied. To rebut this presumption, a mere assertion of judicial bias is not sufficient; rather, a defendant “must establish from the ‘judge's conduct actual bias or prejudice that place[d] the defendant in jeopardy.’ ” Id. (quoting Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002)). Such bias or prejudice exists only where there is an undisputed claim or where the judge has expressed an opinion on the merits of the pending controversy. Id. To assess whether a judge has exhibited partiality, “we examine both the judge's actions and demeanor.” Id. at 118-19. However, cases of fundamental error due to judicial bias are “rare,” and it would be incorrect to state that “any improper comment by a trial judge will constitute fundamental error[.]” Mitchell v. State 726 N.E.2d 1228, 1235-36 (Ind. 2000), reh'g denied.

[14] “[I]ntemperate comments may not necessarily demonstrate bias.” Woods, 98 N.E.3d at 664. As our Supreme Court recently stated:

‘[J]udicial remarks ․ that are critical or disapproving of, or even hostile to the parties, or their cases, ordinarily do not support a bias or partiality challenge.’ That is, unless ‘they reveal an opinion that derives from an extrajudicial source’ or ‘reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.’

State ex. rel. Allen v. Carroll Cir. Ct., 226 N.E.3d 206, 217-18 (Ind. 2024) (quoting Noble v. State, 725 N.E.2d 842, 848 (Ind. 2000), in turn quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The fact that a judge has an emotional reaction does not demonstrate that the judge is biased or prejudiced, and neither adverse rulings nor the imposition of the maximum possible sentence will support a claim of bias. Creager v. State, 737 N.E.2d 771, 783 (Ind. Ct. App. 2000), trans. denied.

[15] We agree with Senior Judge Baker, who authored the memorandum opinion in Cox's sentencing appeal in Cause F5-5906 on this identical issue. He wrote that the trial judge's interruptions and questions merely reflected her displeasure and exasperation with Taylor's justifications for her son's conduct and with Cox's explanations for his behavior, which were in direct contradiction to his PSI and criminal record. See Cox v. State, 2024 WL 4210913 (Ind. Ct. App. Sept. 17, 2024) (mem.) (“Cox I”). The trial court's informal interaction with the witnesses occurred in the format of a combined sentencing/probation revocation hearing in which the presumption of innocence no longer applied ³ and was directed at probing the reliability of Taylor's and Cox's statements. These statements and inquiries aid the judge's fact-finding process by clarifying inconsistencies between Cox's crimes and his character as painted by Taylor's testimony and the PSI. See, e.g., Singh v. State, 40 N.E.3d 981, 988 (Ind. Ct. App. 2015) (in the confines of a sentencing hearing, this court noted that “[t]rial judges are permitted to examine specific activities of the defendant at sentencing, where no presumption of innocence exists, to give the judge a feel for the kind of person defendant is through a thorough examination of his background.”) (internal quotation omitted), trans. denied.

[16] Even though the trial judge's remarks were critical and might even be characterized at times as blunt, Cox presents no evidence that the trial court was motivated by information derived from an improper source or by a degree of favoritism and antagonism necessary to establish judicial bias. Therefore, as there was no bias, there is no error, let alone fundamental error. See, e.g., Smith v. State, 770 N.E.2d 818, 823-24 (Ind. 2002) (finding insufficient evidence of bias because the judge's imposition of the maximum sentence, reference to the Bible, and comment on the heinous nature of the crime as an “act of an evil, mean, depraved, perverted animal,” did not represent an opinion on the merits of the sentence).

[17] Cox also contends that the trial court's categorical refusal of his request for home detention is indicative of the court improperly determining his sentence before the close of the evidence. We disagree. Cox fails to mention that after the trial court denied his request, the State read a victim impact letter, the parties made their final argument, and only then did the trial court announce Cox's sentence.

2. Right to Allocution

[18] As a second claim, Cox asserts that the trial court failed to advise him of his right to allocution. Rooted in the common law, the right to allocution is codified at Indiana Code section 35-38-1-5, which, in relevant part, provides:

When the defendant appears for sentencing, 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 statement.

“Through allocution, the defendant may explain his or her views of the facts and circumstances without being ‘put to the rigors of cross-examination.’ ” Strack v. State, 186 N.E.3d 99, 102 (Ind. 2022) (quoting Biddinger v. State, 868 N.E.2d 407, 413 (Ind. 2007)). Because the statutory right to allocution is based on “the verdict of the jury or the finding of the court[,]” it does not extend to sentencing on a probation revocation. Id.

[19] However, the “Indiana Constitution places a unique value upon the desire of an individual accused of a crime to speak out personally in the courtroom and state what in his mind constitutes a predicate for his innocence of the charges.” Biddinger, 868 N.E.2d at 412 (quoting Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004), rev'd on other grounds in Strack v. State, 186 N.E.3d 99 (Ind. 2022)). Article 1, Section 13 of the Indiana Constitution provides, “In all criminal prosecutions, the accused shall have the right ․ to be heard by himself and counsel[.]” “Informed by these principles, we have found that defendants who ask to give allocution in ․ probation revocation cases also have the right to do so.” Strack, 186 N.E.3d at 103.

[20] Cox exercised his right to allocution in the framework of his probation revocation proceeding.⁴ At the conclusion of the evidence and before the trial judge proceeded to sentencing, Cox's counsel asked Cox, “Is there anything else you'd like to say to Her Honor before she pronounces a sentence in this case?” Tr. Vol. 4 at 79. Cox replied affirmatively and addressed the trial court. He pleaded his case in a verbose and lengthy monologue assuring the trial court that he would complete probation and keep the court apprised of his positive progress and rehabilitation. Expressing his aspirations to get married and become a model citizen, he also shared his remorse “for ever, ever being arrested in [his] life.” Id. Accordingly, no error exists as the trial court allowed Cox his right to allocution.

Conclusion

[21] We conclude that, waiver notwithstanding, Cox failed to present any evidence to establish judicial bias, let alone fundamental error. Further, Cox's right to allocution was not violated because he addressed the trial court during the probation revocation proceeding after requesting to allocute.

[22] Affirmed.

FOOTNOTES

1.   Cox also timely appealed his conviction in Cause F5-5906 under Appellate Cause No. 24A-CR-58 and raised the exact same issues as in the present appeal. A different panel on this Court decided Cox's appeal in Cause F5-5906 by memorandum decision issued on September 17, 2024. See Cox v. State, 2024 WL 4210913 (Ind. Ct. App. Sept. 17, 2024) (mem.). Because Cox's current appellate brief mimics his appellate brief filed in Cause 24A-CR-58, we take persuasive guidance from our colleagues’ decision in Cox's related appeal. See Ind. Appellate Rule 65(D)(2).

2.   The trial court misstated Cox's sentence. Pursuant to the terms of his plea agreement, Cox received an aggregate sentence of four years, which consisted of a suspended sentence of four years for the intimidation conviction and a concurrent one-year suspended sentence for the domestic battery conviction.

3.   In support of his claim of judicial bias, Cox relies on four cases in which claims of bias were displayed during a jury trial: Abernathy v. State, 524 N.E.2d 12 (Ind. 1988); Fox v. State, 497 N.E.2d 221 (Ind. 1986); Bruce v. State, 375 N.E.2d 1042 (Ind. 1978), reh'g denied, cert. denied, 439 U.S. 988 (1978); and Kennedy v. State, 280 N.E.2d 611 (Ind. 1972). Four of Cox's other authorities examine judicial bias displayed during bench trials on the issue of guilt: Taylor v. State, 530 N.E.2d 1185 (Ind. 1988); Meyers v. State, 364 N.E.2d 760 (Ind. 1977); Owens v. State, 750 N.E.2d 403 (Ind. Ct. App. 2001); and Ware v. State, 560 N.E.2d 536 (Ind. Ct. App. 1990), trans. denied. We find these cases inapposite to the probation revocation proceeding before us where guilt was previously determined in the underlying matter, leaving sentencing for his admissions to be pronounced.

4.   We acknowledge that Cox I concluded that the trial court erred when it failed to afford Cox an opportunity for allocution but considered the error to be harmless. Cox I was decided in the framework of Cox's sentencing in Cause F5-5906 during which the trial court, “before pronouncing sentence,” failed to “ask” Cox if he “wishe[d] to make [ ] a statement.” See I.C. § 35-38-1-5. In the context of a probation revocation hearing, trial courts are not required to ask a defendant to allocute, rather, “defendants who ask to give allocution in ․ probation revocation cases [ ] have the right to do so” based on Article 1, Section 13 of the Indiana Constitution. Strack, 186 N.E.3d at 103 (emphasis added). In other words, in a sentencing hearing, the trial court must ask a defendant to allocute, while in a probation revocation hearing, the onus is on the defendant to express his wish for allocution.

DeBoer, Judge.

Judges May and Tavitas concur. [23] May, J., and Tavitas, J., concur.