Darlene Kay Herran v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jun 27 2019, 6:54 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dale W. Arnett Curtis T. Hill, Jr.
Winchester, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darlene Kay Herran, June 27, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3131
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Kit C. Dean Crane,
Appellee-Plaintiff. Judge
Trial Court Cause No.
33C02-1802-F5-9
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Darlene Herran (Herran), appeals the trial court’s Home
Detention Order and Agreement and its Order to Pay Transcription Costs
following her guilty plea to operating a motor vehicle after forfeiture for life, a
Level 5 felony, Ind. Code § 9-30-10-17(a)(1).
[2] We affirm.
ISSUES
[3] Herran presents three issues on appeal, which we restate as:
(1) Whether the trial court improperly ordered that it may assess the cost of
the preparation of the transcript to Appellate Counsel;
(2) Whether the trial court’s Home Detention Order and Agreement is
subject to reversal for failing to comply with statutory notice
requirements set out for electronic monitoring devices; and
(3) Whether the trial court abused its discretion when it imposed a condition
of Herran’s home detention that effectively prohibited her from living
with her husband.
FACTS AND PROCEDURAL HISTORY
[4] On February 22, 2018, Herran was observed driving north on 18th Street in New
Castle, Indiana, by an officer of the New Castle Police Department who
recognized her as a lifetime habitual traffic offender. After confirming that
Herran’s driver’s license was subject to an indefinite suspension, the officer
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performed a traffic stop and subsequently arrested Herran. On February 23,
2018, the State filed an Information, charging Herran with operating a motor
vehicle after forfeiture for life, a Level 5 felony. On February 23, 2018, the trial
court found Herran to be indigent and appointed a public defender to represent
her.
[5] On November 29, 2018, pursuant to a plea agreement with the State, Herran
pleaded guilty to Level 5 felony operating a motor vehicle after forfeiture for
life. According to the terms of the plea agreement, Herran would receive a
sentence of five years, with three years to be executed on home detention and
two years suspended to probation. A pending charge of conversion in another
criminal matter was also dismissed. The plea agreement further provided that
Herran could seek a modification of her placement after completing one and
one-half years of her home detention. Prior to the entry of her guilty plea, the
trial court reviewed Herran’s constitutional trial rights, which the trial court
found she understood and waived voluntarily. Herran affirmed to the trial
court that she had read the terms of her plea agreement, discussed it with her
attorney, signed it, and understood that she could not request any modification
of placement on home detention for 401 days. The trial court found that
Herran knowingly and voluntarily pleaded guilty and that it should accept the
plea agreement and be bound by its terms. The trial court accepted the plea
agreement and sentenced Herran according to its terms. In its written
sentencing order, the trial court granted the withdrawal of Herran’s public
defender.
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[6] On November 29, 2018, the trial court also entered its Home Detention Order
and Agreement which enumerated the conditions of Herran’s home detention.
The written standard conditions of Herran’s home detention provided that
“[n]o person convicted of a felony will be allowed to live at or visit your
residence.” (Appellant’s App. Vol. II, p. 47). Directly above the signature line
of the Home Detention Order and Agreement was the following averment:
I have read the above terms and conditions of home detention
and had those terms and conditions fully explained to me. I have
received a copy of said terms. I agree to comply with all terms
and conditions specified.
(Appellant’s App. Vol. II, p. 49). On November 29, 2018, Herran and Herran’s
public defender signed the Home Detention Order and Agreement. Home
detention was scheduled to commence on or before December 3, 2018. The
trial court’s Probation Order and Agreement, which Herran also executed on
November 29, 2018, did not contain any prohibition on her living with a felon.
[7] On December 7, 2018, Herran filed an unverified pro se motion with the trial
court seeking reconsideration of the conditions of her home detention to allow
her to live with her husband, who she stated had been on parole since July
2018. On December 18, 2018, the trial court denied Herran’s motion. On
December 18, 2018, Appellate Counsel filed his appearance along with
Herran’s unverified motion seeking to allow her to live with her husband while
on home detention. Herran claimed that the condition of her home detention
prohibiting her from living with a felon constituted an infringement upon her
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right to “society” with her husband and was an undue economic hardship.
(Appellant’s App. Vol. II, p. 10). On December 20, 2018, the trial court denied
Herran’s second motion without a hearing and without entering any findings of
fact or conclusions of law.
[8] Herran filed a notice of appeal on December 31, 2018, in which Appellate
Counsel was identified as “pro bono” counsel. (Appellant’s App. Vol. II, p. 57).
In her notice of appeal, Herran requested that the Henry Circuit Court 2
Reporter prepare a transcript of the November 29, 2018, sentencing hearing and
furnish it to Appellate Counsel. Herran attached to her notice of appeal a copy
of the chronological case summary entry dated February 27, 2018, noting that
the trial court had found her indigent and had appointed her a public defender
for purposes of addressing the operating while forfeited for life charge.
[9] On January 11, 2019, we granted a motion by Herran to proceed in forma
pauperis and expressly relieved her of the obligation to pay the filing fee for her
appeal. On January 24, 2019, the Clerk of the Henry Circuit Court 2 filed a
notice indicating that the transcript had not yet been completed. 1 On January
25, 2019, the trial court entered its Order to Pay Transcription Costs as follows:
[Appellate Counsel] contacted court staff to request the
preparation of a transcript. Until just recently and after the
transcript had already been completed, [Appellate Counsel] did
not advise the [c]ourt that he expected that the transcript be
1
An invoice included in the Appendix indicates that the transcript was delivered by the court reporter on
January 8, 2019.
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prepared at no cost to [Herran]. In fact, the [c]ourt has never
received any pleading from [Appellate Counsel] requesting such
a finding, nor have there been any pleadings filed asserting
indigency. Due to high volume, the [c]ourt uses outside services
to prepare transcripts. Accordingly, the [c]ourt FINDS and
ORDERS as follows:
The Henry County Auditor shall pay . . . the sum of $94.50 as
costs of transcript service to [the ] Court Reporter . . . [Appellate
Counsel] however, is put on notice that the [c]ourt may assess
such costs against [Appellate Counsel].
(Appellant’s App. Vol. II, p. 61). On January 31, 2019, Herran filed a motion
to correct error requesting that the trial court not assess the cost of the transcript
preparation to Appellate Counsel. The trial court did not rule on the motion.
[10] Herran now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Costs of Transcript
[11] Herran first contends that the trial court erroneously ordered that Appellate
Counsel may be assessed the costs of the preparation of the transcript. The
State counters that the issue is not ripe for appeal because the trial court’s Order
to Pay Transcription Costs did not, in fact, assess those costs to Appellate
Counsel and merely warned that it may do so. The concept of ripeness refers to
the degree that the defined issues in a case are based on actual facts, not abstract
possibilities, and are capable of being decided on an adequately developed
record. Buck v. Grube, 833 N.E.2d 110, 118 n.7 (Ind. Ct. App. 2005). In ruling
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on ripeness, we consider the fitness of the issue for judicial decision as well as
the hardship to the parties of withholding a decision on the merits. Id.[12] We agree with the State that this issue is not ripe for appeal. The transcript was
paid for with public funds, and this appeal has proceeded in due course. The
trial court did not yet order Appellate Counsel to pay the costs of the
preparation of the transcript. Neither Herran nor Appellate Counsel have
sustained any injury, and, therefore, we decline to address the issue. 2
II. Notice Requirement for Electronic Surveillance
[13] Herran next briefly argues that the trial court failed to adequately notify her of
the use of an electronic monitoring device as part of her home detention. She
therefore asks us to determine “that any conditions of electronic monitoring in
this matter be declared null and void.” (Appellant’s Br. p. 9). The terms of
Herran’s home detention order and agreement provided that she “shall ensure
compliance with this [c]ourt’s order on home detention by wearing an
2
[1] We note that a party who was permitted to proceed in the trial court in forma pauperis may proceed in like
manner on appeal without prior authorization from the trial court or the appellate court. Ind. Appellate Rule
40(A)(1). If a party is granted in forma pauperis status by this court, the effect is that the party “is relieved of
the obligation to prepay filing fees or costs in either the trial court or the Court on Appeal or to give security
therefor[.]” App. R. 40(D)(1) (emphasis added). Costs are defined, in relevant part, in the Appellate Rules as
“the cost of preparing the Record on Appeal, including the Transcript[.]” App. R. 67(B)(2). Thus, a
defendant who has been determined to be indigent is entitled to a transcript on appeal at public expense. See
I.C. § 33-40-8-5; see also Hollowell v. State, 19 N.E.3d 263, 266-67 (Ind. 2014) (noting that, after the Court of
Appeals had granted him in forma pauperis status, Hollowell was entitled to a transcript of his post-conviction
relief hearing at public expense); Wright v. State, 772 N.E.2d 449, 461 (Ind. Ct. App. 2002) (“[C]riminal
defendants in Indiana who cannot afford to pay for a transcript are still entitled to one if they are found to be
indigent.”).
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electronic non-removable anklet twenty-four (24) hours a day during the period
of detention[.]” (Appellant’s App. Vol. II, p. 47).
[14] Herran directs us to Indiana Code section 35-38-2.5-11, which provides that
[b]efore entering an order for home detention that requires the
use of a monitoring device described in section 3.3 of this chapter
the court shall inform the offender and other persons residing in
the home of the nature and extent of electronic surveillance
provided by the monitoring device in the home.
Assuming, without deciding, that she preserved this claim, section 35-38-2.5-11
applies to Herran’s electronic monitoring device, and the trial court failed to
provide adequate notice, we conclude that, on the record before us, Herran is
unable to demonstrate that she has suffered any prejudice. We will not reverse
any order or action by a trial court unless it impacts the defendant’s substantial
rights. See App. Rule 66(A). Herran alleges a lack of notice, and her claim of
prejudice is that “electronic monitoring should be disallowed because more
expansive terms of that condition may be applied than were noticed to the
probationer.” Our review of the conditions of the home detention order and
agreement leads us to conclude that Herran was put on notice that her presence
and absence from her home would be monitored by the anklet. Without any
evidence that some other form of monitoring was imposed in this case, we
cannot conclude that Herran’s substantial rights have been impacted by any
error on the part of the trial court. See id.Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 8 of 13
III. Prohibition on Living or Visiting with Felons in Home
[15] Herran’s final contention on appeal is that the condition of her home detention
prohibiting her from cohabitating or visiting with felons in her home infringes
upon her constitutionally-protected, fundamental right to marriage. Herran
essentially argues that the condition is unconstitutional as it applies to her
because its effect is to prevent her from living with her spouse, who she
represents is a convicted felon. Thus, Herran requests that we invalidate this
condition of her home detention.
[16] The State counters with a number of arguments as to why we should not
address the merits of Herran’s arguments, including that Herran has waived her
argument by failing to raise these issues below. Our review of the record
indicates that the Home Detention Order and Agreement was executed after the
conclusion of the sentencing hearing, and, therefore, Herran had no
opportunity to object at the trial level apart from raising the issue in her
subsequent motions. Although her argument was not as well developed below
as on appeal, we find it was sufficiently raised in her motions to preserve it for
our review. In addition, contrary to the State’s assertion that Herran invited
any error when she entered into her plea agreement and signed the Home
Detention Order and Agreement, we note that even when a defendant enters
into an agreement enumerating conditions as part of her conditional freedom,
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we will review the propriety of those agreed-upon conditions. See, e.g., Green v.
State, 719 N.E.2d 426, 430 (Ind. Ct. App. 1999) (finding the condition of work
release agreement that Green had signed obligating him to waive his 4th
Amendment rights as to any law enforcement officer to be overly broad).
[17] The State also argues that we should not address Herran’s claim because she
waived her right to seek any modification of her placement when she entered
into the fixed-term plea agreement and the Home Detention Order and
Agreement. The General Assembly has recently amended the sentence
modification statute, Indiana Code section 35-38-1-17 (2018). As of the writing
of this opinion, the effect of these amendments on the ability of a defendant to
seek modification of a sentence imposed pursuant to a fixed-term plea
agreement is being reviewed by our supreme court. See State v. Stafford, 117
N.E.3d 621 (Ind. Ct. App. 2018), trans. granted; Rodriguez v. State, 116 N.E.3d
515 (Ind. Ct. App. 2018), trans. granted. However, we need not resolve the issue
because we conclude that, even if Herran had the ability to seek modification of
her sentence, she is not entitled to relief on the merits of her claim.
[18] It is well-established that, once a trial court accepts a plea agreement, it is
bound by its terms. I.C. § 35-35-3-3(e); State v. Smith, 71 N.E.3d 368, 370 (Ind.
2017). Our supreme court has held that if a plea agreement is silent as to the
conditions of probation and does not reserve to the trial court the discretion to
impose probation conditions, the trial court may impose only those conditions
that do not “materially add to the punitive obligation” provided for by the plea
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agreement. Freije v. State, 709 N.E.2d 323, 324-25 (Ind. 1999). For example,
even if not specifically provided for in the plea agreement, a trial court may
impose certain administrative or ministerial conditions, such as reporting
requirements, providing notification of changes in employment or address, and
remaining within the jurisdiction of the court. Id. at 325. These are the sort of
conditions that are regularly imposed upon a defendant subject to probation,
and a defendant who enters into a plea agreement that calls for a sentence to be
served on probation should reasonably expect that the county’s standard
conditions may apply. Id. However, if a condition materially adds to the
punitive obligation of a sentence, it may not be imposed in absence of a
provision in the plea agreement providing the trial court with discretion to set
the conditions of probation. Id.[19] Freije involved conditions of probation, as opposed to the conditions of home
detention at issue here. However, we have analogized home detention to
probation. Although different statutory schemes are involved in these two
forms of alternative commitment, we see no reason why Freije would not apply
equally to home detention conditions. See, e.g., Rodriguez v. State, 714 N.E.2d
667, 670 (holding that the same standard of review applies to home detention
conditions and conditions of probation).
[20] Here, Herran’s plea agreement did not specifically provide for the conditions of
home detention, and it did not reserve to the trial court the discretion to impose
those conditions. Thus, the discretion of the trial court to impose conditions of
home detention was limited to those which did not materially add to the
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punitive obligations of the sentence. See Freije, 709 N.E.2d at 325. The
condition at issue here was entered as part of the standard conditions of the
home detention order and agreement, which is the type of ministerial or
administrative condition which could be imposed without being expressly
provided for in the plea agreement. Id.
[21] Herran argues that the challenged condition unduly infringes upon her
fundamental right to be married. It has been recognized that citizens have a
fundamental right to enter into and maintain a marriage relationship. See, e.g.,
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113
(1942) (“Marriage and procreation are fundamental to the very existence and
survival of the race.”). However, the condition of Herran’s home detention
prohibiting her from living with a felon or having a felon visit her home did not
implicate Herran’s ability to remain legally married to her spouse, nor did it
materially add to the punitive obligations of her sentence. It does not require
her to divorce her husband, legally separate from him, or to alter her legal status
as to her spouse in any way. This was not a ‘no-contact’ order prohibiting
Herran from having any contact with her spouse. Because this standard
condition of home detention did not materially add to the punitive obligation of
Herran’s sentence, we conclude that the trial court did not abuse its discretion
when it entered its Home Detention Order and Agreement. See Freije, 709
N.E.2d at 325.
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CONCLUSION
[22] Based on the foregoing, we conclude that the issue of whether the trial court
could assess the cost of the transcript to pro bono Appellate Counsel is not ripe
for our consideration and that Herran has not demonstrated that she was
prejudiced by any failure on the part of the trial court to provide additional
notice to her regarding the electronic monitoring of her home detention. We
also conclude that the standard condition of the Home Detention Order and
Agreement having the effect of precluding Herran from living with her spouse
was not an abuse of the trial court’s discretion.
[23] Affirmed.
[24] Bailey, J. and Pyle, J. concur
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