Court of Appeals of Indiana | Opinion 49A02-1711-JV-2708 | August 8, 2018 Page 1 of 8

ATTORNEY FOR APPELLANT

Deborah Markisohn

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

D.M.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

August 8, 2018

Court of Appeals Case No.

49A02-1711-JV-2708

Appeal from the Marion Superior

Court

The Honorable Marilyn Moores, 

Judge

The Honorable Gary Chavers, 

Magistrate

Trial Court Cause No.

49D09-1710-JD-1487

Darden, Senior Judge.

Statement of the Case

[1] D.M. appeals the juvenile court’s disposition of his case following a 

determination that he is a juvenile delinquent. We affirm.
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Issue

[2] D.M. raises one issue, which we restate as: whether the juvenile court 

committed fundamental error by its failure to specifically ask D.M. whether he 

wanted to address the court to make a statement in allocution at the 

dispositional hearing.

Facts and Procedural History

[3] On October 19, 2017, the State submitted to the juvenile court a petition 

alleging that seventeen-year-old D.M. was a delinquent child for committing an 

act that, if committed by an adult, would have amounted to battery by bodily 

waste, a Level 6 felony. The State alleged that D.M. threw a cup of urine at an 

employee of the juvenile facility where he was being detained. The juvenile 

court found probable cause to support the State’s petition and approved it for 

filing.

[4] Next, the parties executed an admission agreement, wherein, D.M. agreed to 

admit that he committed the act described by the State in the delinquency 

petition. The parties further agreed that final disposition of the matter would be 

left to the discretion of the juvenile court, with both sides free to present 

argument. The juvenile court accepted the admission agreement and 

determined that D.M. was a juvenile delinquent.

[5] The juvenile court then held a dispositional hearing on November 3, 2017. 

Both the State and the probation department recommended to the juvenile 

court that wardship of D.M. be granted to the Indiana Department of 
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Correction (DOC). By contrast, D.M., through his attorney, asked that D.M.

be released to probation as the least restrictive and most safe environment, and 

to remain with his family. D.M.’s attorney further submitted a proposed 

community supervision plan and argued for the juvenile court’s approval.

[6] At that point, D.M.’s attorney stated, “I’ll defer to any comments today your 

Honor for – that [D.M.] or his family may have.” Tr. Vol. II, p. 7. The 

juvenile court specifically asked D.M.’s mother if she wanted to make a 

statement, and she declined. The juvenile court did not specifically ask D.M. if 

he wanted to make a statement. Rather, the juvenile court then announced its 

disposition, granting wardship of D.M. to the DOC for a period of time up to 

his twenty-first birthday, unless released earlier by the DOC. The juvenile court 

further stated that it would recommend that the DOC release D.M. after twelve 

months, thus showing some compassion, but the length of D.M.’s wardship 

would be left to the discretion of the DOC. This appeal followed.

Discussion and Decision

[7] D.M. argues that the juvenile court deprived him of his right to due process of 

law under the Fourteenth Amendment by failing to specifically ask him if he 

wanted to address the court prior to announcing its disposition of the case. 

D.M. concedes that he failed to raise this issue in the juvenile court and is 

entitled to reversal only if he demonstrates that the court’s omission amounted 

to fundamental error. Reply Br. p. 4.
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[8] Fundamental error is an “‘extremely narrow exception’” to the 

contemporaneous objection rule that allows a defendant to avoid waiver of an 

issue. Neville v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012) (quoting 

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)), trans. denied. Fundamental 

error occurs when an error constitutes a blatant violation of basic principles, the 

harm or potential for harm is substantial, and the error deprives a party of 

fundamental due process. S.D. v. State, 937 N.E.2d 425, 429 (Ind. Ct. App. 

2010), trans. denied. The fundamental error exception is available only in 

egregious circumstances. Id.

[9] In criminal cases involving adults, a defendant’s right to offer a statement on his 

or her behalf before the trial court pronounces sentence is known as the right of 

allocution, which has been recognized in the common law since at least 1682. 

Vicory v. State, 802 N.E.2d 426, 428 (Ind. 2004). As a general rule, “[t]he 

standard for determining what due process requires in a particular juvenile 

proceeding is ‘fundamental fairness.’” D.A. v. State, 967 N.E.2d 59, 64 (Ind. Ct. 

App. 2012) (quoting S.L.B. v. State, 434 N.E.2d 155, 156 (Ind. Ct. App. 1982)). 

The General Assembly has specifically explained who must be allowed to speak 

at juvenile dispositional hearings, as follows:

(a) The prosecuting attorney or probation department of the 

juvenile court shall provide notice of the date, time, place, and 

purpose of the dispositional hearing under this chapter to each:

(1) party or person for whom a summons is required to be issued 

under IC 31-37-12-2; and
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(2) foster parent or other caretaker with whom the child is placed 

for temporary care;

at the time the dispositional hearing is scheduled.

(b) The court shall:

(1) provide a person who is required to be notified under 

subsection (a) an opportunity to be heard; and

(2) allow a person described in subdivision (1) to make 

recommendations to the court;

at the dispositional hearing.

Ind. Code § 31-37-18-1.3 (2007). Indiana Code section 31-37-12-2 (2015) 

requires a juvenile court to issue summons to the child, the child’s parent, 

guardian, custodian, or guardian ad litem, and “any other person necessary for 

the proceeding.”

[10] We find it to be indisputable that the better practice in this case would have 

been for the juvenile court to have specifically asked D.M. if he wanted to make 

a statement before pronouncing disposition of the case. It would not have 

taken more than a few minutes and would have ensured that the court directly 

heard one of the most important perspectives—that of the juvenile. As has been 

stated in criminal cases, “‘The right of allocution is minimally invasive of the 

sentencing proceeding; the requirement of providing the defendant a few 

moments of court time is slight.’” Vicory, 802 N.E.2d at 429 (quoting United 

States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)). However, our analysis does 

not end here. We must look at the totality of the facts and circumstances in this 
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case in determining whether the trial court denied D.M. fundamental fairness 

herein.

[11] After reviewing the arguments and recommendations of both parties, and 

taking into consideration the totality of the facts and circumstances herein, we 

cannot conclude that the juvenile court’s failure to specifically ask D.M. if he 

wanted to make a statement prior to disposition amounted to fundamental 

unfairness requiring reversal. During the dispositional hearing, it appears that 

D.M.’s attorney vigorously argued in favor of placing D.M. on probation and 

submitted a plan for the juvenile court’s review. The plan provided, among 

other provisions, that D.M. would live with his mother, who would supervise 

him and agreed to report D.M. to a probation officer if he violated any terms of 

probation. It does not appear that D.M. was substantially harmed by not being 

given an opportunity to personally address the court at the hearing. See S.L.B., 

434 N.E.2d at 157 (juvenile court did not violate juvenile’s due process rights by 

not asking if she had a statement; juvenile’s attorney presented argument to the 

court).

[12] Further, D.M.’s juvenile record is extensive, and it is thus highly unlikely that 

allocution by D.M. would have persuaded the juvenile court to release him to 

probation or some other commitment less strict than the DOC. D.M.’s record 

began at age thirteen, when he was found to be a runaway. In 2014, D.M. was 

determined to be a juvenile delinquent for two acts of resisting law 

enforcement, both Class A misdemeanors, and criminal mischief, also a Class 

A misdemeanor. In 2015, he was adjudicated a juvenile delinquent for 
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committing an act that, if committed by an adult, would have constituted Level 

5 felony robbery. In the current case, he admitted to committing an act of 

battery by bodily waste while in juvenile detention. Further, while he was 

being detained for the current case, the State alleged D.M. committed another 

juvenile act, specifically battery resulting in injury to a public safety official. 

D.M.’s misconduct is ongoing and escalating in severity.

[13] In addition, juvenile courts had imposed less restrictive alternatives than the

placement in DOC in the past, but D.M. persisted in his course of misconduct. 

He was placed on formal probation in 2014, but he failed to comply with the 

terms of probation and he was sent to an out-of-home placement. In 2015, 

D.M. was returned to the out-of-home placement at the conclusion of another 

juvenile case, but he violated the terms of his placement and was sent to the 

DOC for fourteen months. Upon his release, he fled from another placement 

and was sent to juvenile detention.

[14] Finally, D.M.’s proposed probation plan stated that he would live with his 

mother and be subject to her oversight, but she had previously told probation 

officers that D.M. had refused to comply with her curfews and had frequently 

left home without permission. Based on this record, the juvenile court had 

ample reason to conclude a placement less restrictive than the DOC would not 

succeed, and it is unlikely D.M. could have changed the court’s mind via a 

personal statement at the dispositional hearing.
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[15] We conclude that under the particular facts and circumstances of this case, the 

juvenile court’s failure to specifically ask D.M. if he wanted to make a 

statement was not a blatant violation of basic principles, did not pose a 

potential of substantial harm, and did not deprive D.M. of fundamental due 

process. We thus decline to apply the doctrine of fundamental error and/or 

fundamental fairness in considering D.M.’s due process claim. On the other 

hand, we strongly encourage juvenile courts to take into consideration affording 

juvenile delinquents the opportunity to address the court before final 

disposition.

Conclusion

[16] For the reasons stated above, we affirm the judgment of the juvenile court.

[17] Affirmed.

Pyle, J., and Altice, J., concur.