Brandon R. Berry, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Brandon Berry appeals his sentence following the Brown Circuit Court's revocation of his probation. Berry presents a single issue for our review, which we restate as whether the trial court committed fundamental error when it did not sua sponte advise him of his right to allocution during the dispositional hearing.

[2] We affirm.

Facts and Procedural History

[3] On April 10, 2023, Berry pleaded guilty to Level 6 felony domestic battery. Pursuant to the terms of a plea agreement, the trial court sentenced Berry to 545 days, with eighty-two days executed, 463 days suspended, and 365 days on probation. On September 13, 2024, the State filed a petition to revoke Berry's probation alleging that he had been charged with domestic battery on September 1 ¹ and that he had failed to timely notify his probation officer of a change of address. Following a hearing, the trial court revoked Berry's probation and ordered him to serve the previously suspended 463-day sentence in the Department of Correction. This appeal ensued.

Discussion and Decision

[4] Berry argues that the trial court committed fundamental error when it did not sua sponte advise him that he had a right to allocution at the probation revocation disposition hearing. Berry concedes that he did not ask the court for permission to allocute, and so he alleges fundamental error.²

[5] Fundamental error is a “daunting” standard. Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017) (quoting Griffith v. State, 59 N.E.3d 947, 956 (Ind. 2016)). To establish fundamental error, a defendant must “show that the trial court should have raised the issue sua sponte due to a blatant violation of basic and elementary principles, undeniable harm or potential for harm, and prejudice․” Id.

[6] Berry acknowledges that the statutory right to allocution does not apply to probation revocation proceedings. But he asks that we hold that the trial court committed fundamental error when it did not advise him of his right to allocution under Article 1, Section 13 of the Indiana Constitution. We decline his invitation.

[7] As our Supreme Court has explained:

Though long recognized as a principle in common law, Indiana first codified the right of allocution in 1905. Today, the statutory right of allocution is found in Indiana Code section 35-38-1-5:

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 statement. Sentence shall then be pronounced, unless a sufficient cause is alleged or appears to the court for delay in sentencing.

Because this statutory right is based on “the verdict of the jury or the finding of the court[,]” it does not extend to sentencing on a guilty plea or probation revocation. See Biddinger[ v. State], 868 N.E.2d [407,] 412[ (Ind. 2007)]; Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004).

But 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, 802 N.E.2d at 429). 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 guilty plea and probation revocation cases also have the right to do so. Biddinger, 868 N.E.2d at 412; Vicory, 802 N.E.2d at 429.

Strack v. State, 186 N.E.3d 99, 102-03 (Ind. 2022) (emphases added).

[8] Our Supreme Court precedent is clear that a trial court has no obligation to advise a defendant in a probation revocation hearing that he has a right to allocution. Because Berry did not ask for an opportunity to allocute, he cannot now complain. See Strack, 186 N.E.3d at 102-03. And the trial court did not commit fundamental error when it did not sua sponte advise Berry of that right.

[9] Affirmed.

FOOTNOTES

1.   Berry ultimately pleaded guilty to Level 5 felony domestic battery, and the trial court sentenced him to three years executed in Case No. 07C01-2409-F5-302.

2.   Berry's primary argument on appeal is a request that we reverse twenty-one years of Supreme Court precedent holding that “a defendant waives for appellate purposes his ability to vindicate his right to allocution in if he did not request its exercise.” Appellant's Br. at 14. However, this is beyond our authority. See Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (noting that we are bound by precedent of our supreme court until it is changed either by that court or by legislative enactment), trans. denied.

Mathias, Judge.

May, J., and Felix, J., concur.