State v. Keathly5/21/2003
Law Dictionary 75 (7th ed. 1999); see also United States v. Gilbert, 244 F.3d 888, 924 (11th Cir. 2001).
Tennessee Code Annotated Section 40-35-210(b)(6) mandates that, in a non-capital case, a defendant be allowed allocution before a sentencing judge or jury. This section provides, "To determine the specific sentence and the appropriate combination of sentencing alternatives that shall be imposed on the defendant, the court shall consider . . . ny statement the defendant wishes to make in the defendant's own behalf about sentencing." Tenn. Code Ann. § 40-35-210(b)(6) (Supp. 2002). Note 9 to this section, titled Allocution, states, "The trial judge, in determining the appropriate sentence . . ., shall consider, among several factors, any statement the defendant wishes to make in his own behalf about sentencing. . . ." Tenn. Code Ann. § 40-35-210 note 9 (1997) (citing Stephenson, 878 S.W.2d at 551). Based upon the foregoing, we conclude that the trial court erred by denying the Appellant his statutory right of allocution.
Next, we must determine whether the trial court's failure to comply with Tennessee Code Annotated Section 40-35-210(b)(6) constitutes reversible error. In doing so, we find the rationale of United States v. Pagan, 33 F.3d 125, 129-30 (1st Cir. 1994), which follows, persuasive.
hile we do not attach talismanic significance to any particular string of words, a defendant must at least be accorded the functional equivalent of the right. And, moreover, functional equivalency should not lightly be assumed. Though there may be cases in which a defendant, despite the absence of the focused inquiry that the language of the rule requires, can be said to have received its functional equivalent, such cases will be few and far between. Doubts should be resolved in the defendant's favor.
To achieve functional equivalency (or, put another way, substantial compliance with the imperative of Rule 32 (a)(1)(C)), it is not enough that the sentencing court addresses a defendant on a particular issue, see, e.g., United States v. Walker, 896 F.2d 295, 300-01 (8th Cir. 1990), affords counsel the opportunity to speak, see, e.g., United States v. Posner, 868 F.2d 720, 724 (5th Cir. 1989), or hears the defendant's specific objections to the presentence report, see, e.g., United States v. Phillips, 936 F.2d 1252, 1255-56 (11th Cir. 1991). Rather, the court, the prosecutor, and the defendant must at the very least interact in a manner that shows clearly and convincingly that the defendant knew he had a right to speak on any subject of his choosing prior to the imposition of sentence. See Green v. United States, 365 U.S. 301, 304-05, 81 S. Ct. 653 (1961).
We say "reversible" because, in this type of situation, we cannot dismiss the error as harmless. As early as 1689, the common law acknowledged that a court's failure to invite a defendant to speak before sentencing required reversal. See United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991) (citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.B. 1689)). This axiom has survived the passage of time. It is settled that a failure to comply with the mandate of Rule 32(a)(1)(C) ordinarily requires vacation of the sentence imposed without a concomitant inquiry into prejudice. See United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1993); Barnes, 948 F.2d at 332; Phillips, 936 F.2d at 1256; Walker, 896 F.2d at 301; Posner, 868 F.2d at 724; United States v. Buckley, 847 F.2d 991, 1002 (1st Cir. 1988), cert. denied, 488 U.S. 1015, 109 S. Ct. 808 (1989); United States v. Navarro- Flores, 628 F.2d 1178, 1184 (9th Cir. 1984); cf. United States v. Miller, 849 F.2d 896, 897-98 (4th Cir. 1988) (remanding for failure to
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