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Allocution – Timing of Exercise of Right – Remedy for Violation

State v. Quantae T. Hines, 2007 WI App 39
For Hines: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: A defendant has a right to allocute during a reconfinement proceeding, the remedy for violation of which is resentencing, ¶¶18-20.

The outcome is largely controlled by State v. John C. Brown, 2006 WI 131, which held that reconfinement is essentially a sentencing proceeding. True, Brown didn’t discuss allocution, so this is a slight— very slight—extension of that holding. That said, the result is much more interesting when the facts are taken into account. After the reconfinement sentence was announced, Hines spoke up and made a pitch for leniency, ¶9. The trial judge was unmoved; as she later said, on postconviction motion, ¶10:

… Even assuming arguendo that the defendant had a due process right to allocution … he was clearly afforded that right…. The court considered the defendant’s statement but was not persuaded to alter its reconfinement decision. Any failure … to ask the defendant before ordering reconfinement whether he had anything to say was harmless….

And so, the question is really one of harmless error. The defendant was afforded an opportunity to speak, it’s just that this was immediately after rather than before pronouncement of sentence. The court of appeals might have said that such a violation was a mere trifle, but that’s decidedly not what it said. Instead, the result is comprehensible only as a bright-line rule, which the court barely hints at, in a passing remark, ¶18: “Part of the court’s consideration at a sentencing includes the defendant’s right to allocute before the court pronounces its decision. See Wis. Stat. § 972.14(2); Greve, 272 Wis. 2d 444, ¶35.” Thus, “before” means exactly that, and not a moment later.

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