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State v. Shuler9/19/1989
wise. There was, however, no reversible error in this irregularity.
RIGHT TO ALLOCUTION
The last issue raised by the defendant relates to an alleged deprivation of his right to allocution at sentencing. The defendant urges that, although he was given his right to allocution at the presentence hearing on August 5, 1987, Rule 26.10, Arizona Rules of Criminal Procedure, 17 A.R.S., requires that he be given this right at the actual sentencing, which occurred on August 7, 1987.
The right of allocution is the defendant's personal statement to the trial court prior to sentencing. State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (App.1980). This defendant made a statement at the end of the presentence hearing. At the end of his statement, he said, "that's about all I have to say." At the sentencing, two days later, the court began immediately with the pronouncement of sentence. While it would have been better practice to ask the defendant if he had anything more to say just before sentencing, no reversible error was committed. We find it very unlikely under the circumstances that the court did not consider the defendant's statement. In fact, in denying the petition for post-conviction relief, the court specifically stated, "This court has been guided in sentencing defendants by the presentence report, the comments of the state, and by the statements of defendants and their counsel."
The case cited by the defendant, State v. Nelson, 122 Ariz. 1, 592 P.2d 1267 (1979), is readily distinguishable. There, the substituted judge made clear to the defendant that he would not consider what the defendant said, but rather would sentence him based on the original judge's notes and the presentence report. The Arizona Supreme Court held the defendant had a right to make a statement and have it considered by the court before sentencing. Id. That occurred here.
Moreover, to achieve a resentencing because of an error regarding the defendant's right to allocution, the defendant must show that he would have added something of significance to the record if he had been given his full right to allocution. E.g., State v. Starr, 110 Ariz. 580, 521 P.2d 1126 (1974). Here the defendant did address the court and finished with, "that's about all I have to say." Defendant has not indicated what he would have said to the court on August 7, 1987, that could have affected the sentence he received. Because there was no prejudice to defendant's substantial rights, resentencing is unnecessary. State v. Maddasion, 24 Ariz. App. 492, 539 P.2d 966 (1975), aff'd 130 Ariz. 306, 636 P.2d 84 (1981). Furthermore, because there was no prejudice, there was no ineffective assistance of counsel at sentencing. E.g., State v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985).
Pursuant to A.R.S. § 13-4035, we have reviewed the record for fundamental error and have found none. For the above reasons, the conviction and sentence are affirmed.
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