John Middleton v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Jun 21 2016, 5:40 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Brooklyn, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Middleton, June 21, 2016
Appellant-Defendant, Court of Appeals Case No.
28A05-1602-CR-282
v. Appeal from the Greene Superior
Court
State of Indiana, The Honorable Dena A. Martin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28D01-1601-F6-6
Altice, Judge.
Case Summary
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[1] John Middleton appeals the sentence imposed following his guilty plea to two
counts of Level 6 felony theft. He appeared at sentencing via a two-way video
from the jail without a written waiver of his right, under Ind. Code § 35-38-1-
4(a), to be present in person for sentencing. This procedure was a clear
violation of statute, Indiana Administrative Rule 14(A), and our Supreme
Court’s recent directive. Because Middleton did not object to utilization of this
improper procedure, however, he labors under the heavy burden of establishing
fundamental error.
[2] We affirm.
Facts & Procedural History
[3] On January 7, 2016, the State charged Middleton with two counts of Level 6
felony theft for stealing televisions from Walmart on two separate occasions.
Middleton appeared for his initial hearing by two-way video from the jail on
Friday, January 8, 2016. Middleton informed the trial court that he wished to
proceed without counsel and to plead guilty. The court informed Middleton
that it was not prepared to accept his guilty plea that day but could set a hearing
for the following Monday, January 11, 2016. Middleton agreed and requested
that he also be sentenced on Monday. The court then set the hearing as
discussed and indicated “we will just do it by vie [sic] the two way video just
like we are today okay?” Transcript at 11. Middleton did not object.
[4] On January 11, 2016, Middleton appeared, pro se, for his change of plea
hearing and sentencing via two-way video from the jail. Once again, Middleton
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expressed his desire to plead guilty and “get it over with.” Id. at 13. The court
advised Middleton of his right to an attorney and the benefits of being
represented by counsel. Middleton indicated that speaking with an attorney
might be in his best interest but stated “I am ready to proceed.” Id. at 15. The
court then inquired as to whether the decision was being made freely and
voluntarily and as to Middleton’s experience with the criminal justice system.
Middleton responded that he was acting freely and voluntarily and stated, “I
believe this is the best decision I could possibly make at this time your honor.”
Id. at 16. The trial court then proceeded with the plea hearing, during which
the court thoroughly advised and questioned Middleton, the State established a
factual basis, and Middleton freely and voluntarily pled guilty without the
benefit of a plea agreement. The trial court accepted Middleton’s plea.
[5] With respect to sentencing, Middleton provided the following in allocution:
I know I am not making any excuses, I want to take
responsibility for my actions I did take the stuff, it did not belong
to me, I should have not taken it, I do have a criminal history,
but I am much more responsible than that now, I am on
probation in Daviess county, but not for stealing, I will cooperate
with the law, but roughly two and half years ago I severely
injured myself and I have had six surgeries since that date, June
26, 2013, I have been opiate addict since and an alcoholic and I
just kind of lost my way again and that is why I stole the stuff
was to partially support Christmas for my children and to support
a drug addict and I am sincerely sorry and I am just ready to take
responsibility, to get clean, I am kind of glad I am where I am at
right now, I am glad I couldn’t afford to bond out because I am
starting to feel better about myself and better, you know, the
withdraws are easing up a little bit, I just want to get clean, I just
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want to get clean and be happy and get back home that is all I
have to say Judge and I am sorry.
Id. at 24-25. The State then went through Middleton’s lengthy criminal history
with Middleton to ensure its accuracy. After this colloquy, Middleton stated, “I
was doing pretty good I just kind of lost my way, I have been clean for almost 8
years and I got this injury and I just fell off face first.” Id. at 27.
[6] At the conclusion of the hearing, the trial court addressed the aggravating and
mitigating factors, including Middleton’s guilty plea, acceptance of
responsibility, extensive criminal history, and probationary status at the time of
these offenses. The court then imposed two years executed in the Greene
County Jail on each count and ordered the sentences to be served consecutively
for an aggregate sentence of four years. Middleton now appeals.
Discussion & Decision
[7] Middleton’s sole argument on appeal is that the trial court erred by conducting
the sentencing hearing via video conference without obtaining a written waiver
of his right to be present in person. Middleton acknowledges that he did not
object below. Accordingly, he argues that the error was fundamental.
[8] “Neither the United States Constitution nor the Indiana Constitution explicitly
or implicitly secure to a defendant the right to be present at sentencing.” Cleff v.
State, 565 N.E.2d 1089, 1091 (Ind. Ct. App. 1991), trans. denied. This non-
constitutional right is found in I.C. § 35-38-1-4(a), which provides that criminal
defendants “must be personally present at the time sentence is pronounced.” In
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other words, the statute requires a “defendant’s actual physical presence” at
sentencing. Hawkins v. State, 982 N.E.2d 997, 1002 (Ind. 2013).
[9] Indiana Administrative Rule 14(A)(2)(c) provides that a trial court “may use
audio visual telecommunication to conduct…[s]entencing hearings…when the
defendant has given a written waiver of his or her right to be present in person
and the prosecution has consented.” “Thus, a trial court may conduct a
sentencing hearing at which the defendant appears by video, but only after
obtaining a written waiver of his right to be present and the consent of the
prosecution.” Hawkins, 982 N.E.2d at 1002-03.
[10] In Hawkins, the defendant appeared at sentencing by video conference without
expressly waiving his right to be present in person. Like Middleton, the
defendant in Hawkins failed to object. Because the Supreme Court was
remanding for a new trial on another ground, the court determined: “we need
not decide the impact of Hawkins’s failure to contemporaneously object or
weigh the impact of denying a defendant the right to be physically present for
sentencing under fundamental error analysis.” Id. at 1003. The Court,
nevertheless, took the opportunity to caution trial courts as follows:
Going forward, though, we would expect to see what our rules
require reflected in the record, and would urge trial courts to be
cautious of using procedures—however efficient they may be—
without following all of the steps required to implement those
procedures in a way that is fair to all involved.
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Id. As this warning was not headed in the instant case, we are left to determine
whether the failure to obtain a written waiver from Middleton or have him
physically present at sentencing amounted to fundamental error.
[11] Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged error was so
prejudicial to the defendant’s rights as to make a fair trial impossible. Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014). To establish fundamental error, the
defendant must show that, under the circumstances, the error “constitute[d]
clearly blatant violations of basic and elementary principles of due process” and
“present[ed] an undeniable and substantial potential for harm.” Id. (quoting
Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). “Fundamental error is meant
to permit appellate courts a means to correct the most egregious and blatant
trial errors that otherwise would have been procedurally barred, not to provide
a second bite at the apple for [those] who ignorantly, carelessly, or strategically
fail to preserve an error.” Id.
[12] Middleton does not meet the heavy burden of establishing fundamental error.
His entire fundamental error argument is as follows:
Few rights afforded to a defendant require a waiver be made in
writing; a defendant’s waiver of his constitutional right to a jury
trial is one such example. It would seem, then, that the right of
one to be physically present at his sentencing is nearly as
fundamental as the right to be tried by a jury of one’s peers.
Appellant’s Brief at 6.
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[13] As set forth above, the right to be present at sentencing is not a constitutional
right. Cleff, 565 N.E.2d at 1091. Further, the record establishes that Middleton
received a thorough sentencing hearing at which he had the opportunity to be
heard, offer evidence, and present his sentencing argument via video
conference. While we do not condone the trial court’s failure to follow
Administrative Rule 14(A), we conclude that Middleton’s presence via video
conference without a written waiver did not violate basic and elementary
principles of due process.1 Accordingly, the error was not fundamental.
[14] Judgment affirmed.
[15] Bailey, J., and Bradford, J., concur.
1
A challenge to his sentence on this issue could have been avoided had waiver forms been available at the
jail for Middleton’s consideration.
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