IN Supreme Court: Father’s substantive rights not violated in OWI case involving minor child

A father who was convicted of driving under the influence while his young daughter was in the car will not have his sentence reversed by the Indiana Supreme Court on allocution violation grounds.

Without a plea agreement, Cole Strack in 2021 pleaded guilty to four charges, including operating a vehicle while intoxicated and possession of marijuana, and admitted to being a habitual vehicular substance offender.

The plea related to an incident in March 2020, when Strack was pulled over for an inoperable license plate. An officer smelled alcohol as he spoke to Strack and another passenger in the vehicle, which also held Strack’s toddler-aged daughter.

At the sentencing hearing, the trial judge told Strack’s counsel that if the defendant had “anything to say he needs to testify.” Strack then took the stand and was cross-examined, over objection, about his continued alcohol use, both related to domestic battery charges pending separately and the OWI case.

After closing arguments, the Wells Superior Court allowed Strack to speak, stating, “Mr. Strack, you’re not required to say anything at the time of sentencing, but you have that right. Is there anything additional you’d like to say, sir?”

Strack responded, “I’d just like to say that most of my criminal history was before I had a child. And, this was a real eye-opener for me. Being in jail for three months is, is for lack of a better word, very sobering. And I, I think I’ve learned my lesson and I’d like to move on with, with my life, with my daughter and I.”

The trial court dismissed two of the counts on double jeopardy grounds, entering judgment against Strack on the OWI and marijuana possession charges and sentencing him to a total of six years, with two suspended to probation.

The Court of Appeals of Indiana affirmed in November, finding that Strack’s right to allocution was not denied and that resentencing was not warranted.

In a per curiam opinion handed down Monday, the Supreme Court concluded any error by the trial court was harmless and didn’t affect Strack’s substantive rights.

The court pointed to Biddinger v. State, 868 N.E.2d 407 (Ind. 2007), and Vicory v. State, 802 N.E.2d 426 (Ind. 2004), in its reasoning.

“At sentencing, a criminal defendant who enters an open guilty plea has a right to allocution distinct from the right to present evidence on his or her behalf. We grant transfer to clarify this distinction,” the court held. “But finding the trial court’s error was not reversible, we ultimately affirm Strack’s sentence.”

Strack argued the trial court committed fundamental error by incorrectly advising him that he “need[ed] to testify” before he took the stand, thus forcing him to testify and submit to cross-examination “or lose the ability to speak on his own behalf.”

“…(W)here the defendant has pleaded guilty without a plea agreement, as here, this right to allocution is separate and distinct from the right to present sentencing testimony,” the court wrote. “Here, though, Strack ultimately exercised both these discrete rights — first testifying for evidentiary purposes, then after closing arguments, accepting the trial court’s invitation to give allocution.

“… Strack complains that cross-examination elicited evidence that he endangered his young daughter riding with him when he operated a vehicle while intoxicated and that he continued using alcohol after the incident,” the justices wrote. “But other sentencing testimony had already introduced that information. Likewise, the presentence investigation report disclosed Strack’s pending domestic battery charges, and the trial court took care not to allow testimony about the elements of that charged offense.

“… We find that Strack has not proved his sentence would have been different had he not testified and been subject to cross-examination,” the court concluded. “As we did in Williams v. State, 164 N.E.3d 724, 725 (Ind. 2021), we remind trial courts to be clear and accurate in their sentencing hearing colloquies.”

In a footnote, the justices summarily affirmed the Court of Appeals as to Section II of its November 2021 opinion, which rejected Strack’s argument “that the trial court erred by failing to consider the negative impact of his incarceration on his daughter and his open guilty plea as mitigating factors.”

“On Strack’s assertion of cumulative error,” the footnote continued, “we find any errors here in sentencing taken together do not justify reversal. Strack has a substantial history of alcohol-related crimes, including three other convictions for operating while intoxicated. Almost all of his previous sentences were suspended, which the trial court found relevant when imposing a partially executed sentence

The case is Cole G. Strack v. State of Indiana, 22S-CR-137.