Opinion
24A-CR-58
09-17-2024
Terrance Donte Cox, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT Talisha R. Griffin Casey A. Farrington Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court Trial Court Cause No. 49D27-2203-F5-5906 The Honorable Angela Dow Davis, Judge
ATTORNEYS FOR APPELLANT Talisha R. Griffin Casey A. Farrington Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Baker, Senior Judge
Statement of the Case
[¶1] Terrance Cox appeals, contending he is entitled to a new sentencing hearing. Finding no error, we affirm.
Issues
[¶2] Cox presents two issues for our review, which we restate as:
I. Whether the trial court exhibited bias and prejudice against Cox at sentencing.
II. Whether the trial court erred by depriving Cox of his right of allocution.
Facts and Procedural History
[¶3] In March 2022, Cox was charged with domestic battery resulting in serious bodily injury, a Level 5 felony, and domestic battery, a Class A misdemeanor. The State also alleged that Cox had a prior, unrelated battery conviction, which would elevate the misdemeanor offense to a Level 6 felony.
[¶4] A jury determined Cox was guilty of the misdemeanor battery, and he admitted to having a prior conviction. The trial court sentenced him to 910 days. He now appeals.
Discussion and Decision
I. Judicial Bias or Prejudice at Sentencing
[¶5] Cox first asserts that the judge's remarks at the sentencing hearing demonstrate her bias and prejudice and placed him in jeopardy. Cox concedes he did not object to the judge's remarks. Where a defendant fails to object to a judge's comments, the issue of bias is waived for review. Woods v. State, 98 N.E.3d 656, 664 (Ind.Ct.App. 2018), trans. denied.
[¶6] "An appellant who seeks to overcome waiver must demonstrate fundamental error[.]" Id. Fundamental error is extremely narrow and available only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the defendant is denied due process. Blaize v. State, 51 N.E.3d 97, 102 (Ind. 2016) (quoting Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013)).
[¶7] 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 a judge's conduct actual bias or prejudice that placed 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. Rochefort, 177 N.E.3d at 118-19. Yet, "intemperate comments may not necessarily demonstrate bias." Woods, 98 N.E.3d at 664. Furthermore, the fact that a judge has an emotional reaction does not demonstrate that she 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.
[¶8] Here, at sentencing, Cox's mother spoke on his behalf. She began by stating that she sees the "positive things" Cox does, including being a good father, going to work, doing for others, ministering to the youth, and teaching people how to resolve conflict. Tr. Vol. 4, p. 54. The judge interjected and asked, "Why does he keep getting in trouble for fighting or beating people up or battery?" Id. The judge listed offenses of criminal recklessness with the use of body armor, battery with injury as a C felony, domestic battery, and intimidation, as well as domestic battery during a period of probation. The judge stated: "He was on probation and he continues to commit crimes. And it's always violent in nature." Id. at 56. Cox's mother referred to Cox hitting a boy at school when he was seventeen, but the judge responded, "I'm talking about the women that he - continues to beat up." Id. Cox's mother attempted to explain by saying the victim provoked Cox as "her way of getting even" but the judge interrupted, stating the woman "ended up - in the hospital." Id.
[¶9] When Cox's mother stated she knew Cox was trying to turn his life around, the judge responded that he was not "doing it - the right way" and asked his mother if she knew about his conviction for intimidation in which he pulled a deadly weapon on someone. Id. at 57. Cox's mother responded that she knew nothing of that conviction and that there must be an error because her sons tell her everything. The judge later interrupted to ask, "Who is Britt Carroll?" Id. at 61. When his mother responded that she had no idea, the judge informed her it is the woman Cox threatened to kill with a hammer. And later the judge interrupted with more details, stating that Cox pleaded guilty to stealing $3,000 from the woman, hiding from her until she came to get her money, and then threatening her with a hammer. The judge continued that Cox was on probation from that case with "1,440 days hanging over his head" "and then the minute somebody makes him [m]ad, he puts her in the hospital[.]" Id. at 62.
[¶10] Cox also testified, and the judge asked him about some information he provided for his presentence investigation report:
THE COURT: So did you go in the Navy?
THE DEFENDANT: I was a recruit for the Navy SEALs UDT program, Underwater Demolition [T]echnicians. The sniper program.
THE 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?
THE DEFENDANT: No, that's not what I told the lady. ....
THE COURT: You 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.
THE DEFENDANT: 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 in 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.
THE COURT: You were found - guilty - of domestic battery and you had a prior. It is a felony.
THE DEFENDANT: Yes, ma'am. I -
THE COURT: While you were on probation -
THE DEFENDANT: Yeah.
THE COURT: -- for a battery on someone else and intimidating someone else and using a hammer on somebody else.
THE DEFENDANT: Oh, that situation where I signed that plea bargain, I was just hammering -- I was nailing up the Revelations
in my prayer room. And I pled -- I signed the plea bargain with you.Id. at 71.
[¶11] The judge also reprimanded Cox for blaming the victims of his crimes, "downplaying" his actions, and lying to probation. Id. at 72, 77. And when Cox told the judge that he was "very sorry" for everything he has done and that if she put him on "GPS monitoring or probation, I will do everything 100 percent. I will never get in trouble again[,]" she replied, "Every woman that you were in a relationship with you beat up." Id. at 75. Again, when Cox stated he was required to do twenty-six weeks of classes for his probationary period, the judge interjected that going to the classes is supposed to change Cox's behavior, but his behavior has not changed. Id. at 77.
[¶12] As our Supreme Court recently reiterated,
judicial remarks during the course of a trial 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)). Here, the judge's comments clearly expressed displeasure and exasperation with Cox's explanations and the positions he was advancing because they did not square with his presentence report or his prior record. With no evidence the court derived its information from an improper source or was motivated by the type of hostility necessary to establish judicial bias, we conclude there was no error, let alone fundamental error. See, e.g., Smith, 770 N.E.2d at 823-24 (finding insufficient evidence of bias because trial judge's imposition of maximum sentence, reference to the Bible, and comment on heinous nature of crime as "act of an evil, mean, depraved, perverted animal," did not represent expression of judge's opinion on merits of sentence).
[¶13] To the extent Cox asserts the court's statement concerning house arrest is indicative of the court improperly determining his sentence before all the evidence had been presented, we disagree. At the end of his presentation of evidence, Cox requested house arrest, and the court responded that he would "not [be] getting house arrest." Tr. Vol. 4, p. 80. The State then read a letter from the victim, the parties made their final argument, and the court announced Cox's sentence.
II. Deprivation of Right of Allocution
[¶14] For his second claim of error, Cox contends the court failed to advise him of his right of allocution. The right to allocution is codified at Indiana Code section 35-38-1-5 (2013), which provides as follows:
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.
As long as a defendant is provided with the opportunity to explain his view of the facts and circumstances, the purpose of the right of allocution has been accomplished. Vicory v. State, 802 N.E.2d 426, 430 (Ind. 2004), disapproved of on other grounds by Strack v. State, 186 N.E.3d 99, 103 n.1 (Ind. 2022). A defendant who asserts that his right to allocution was denied labors under a heavy burden to establish his claim. Id. at 429.
[¶15] In this case, there was no objection lodged by Cox when the trial court proceeded to sentencing without offering him an opportunity for allocution. Thus, we conclude, and Cox concedes, that he waived his claim for failing to object and that he must therefore establish fundamental error, the extremely narrow exception to the waiver rule. See Blaize, 51 N.E.3d at 102.
[¶16] Beyond the deprivation of the right itself, Cox asserts the court's failure to advise him of this right supports his claim of bias and deficient process he maintained in Issue I. We did not find judicial bias in Issue I, above, and Cox offers nothing new to augment this argument.
[¶17] Cox further complains that during his testimony, the judge cross-examined him and elicited statements from him-what he refers to as "prejudicial facts"-that were likely to lead the judge to aggravate his sentence. Appellant's Br. p. 22. First, we note that most of these "prejudicial facts" had already been introduced before Cox testified. His mother testified prior to him and refuted his assertions of military service and being shot in the face. Tr. Vol. 4, pp. 66, 65. Notably, Cox's counsel asked him at the beginning of his testimony if there was anything his mother testified to with which he disagreed, and he responded, "Nothing[.]" Id. at 68. Further, Cox made a choice to testify at sentencing, which is separate from his right of allocution, and he does not contend that had he not been deprived of his right of allocution, he would not have testified and thereby been subject to cross-examination.
[¶18] Moreover, at the end of his testimony, Cox addressed the judge, apologizing for his actions, requesting house arrest and probation, and promising to successfully complete his sentence. Tr. Vol. 4, pp. 79-80. Indeed, Cox acknowledges that he "was able to make statements about his remorse, his ability to follow the law in the future, his children and how they would be affected if he went to prison, his community service work, and his health issues." Appellant's Br. p. 22. He fails to assert, however, content that he would have included in a statement in addition to or different from the information in his testimony and statements he made to the judge, or how that content may have benefited him. Accordingly, while it is undisputed that the trial court failed to follow the statutory procedure in this case, we conclude that, in addition to waiving his claim, Cox has failed to demonstrate that he was prejudiced by the trial court's error.
Conclusion
[¶19] We conclude that, waiver notwithstanding, there was neither evidence to establish judicial bias nor fundamental error. Further, we conclude that, waiver notwithstanding, though the trial court erred when it failed to afford Cox an opportunity for allocution, the error was harmless.
[¶20] Affirmed.
May, J., and Vaidik, J., concur.