Stephonn T. Sutton v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 10 2019, 10:04 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stephonn T. Sutton, May 10, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2430
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Kristine A.
Appellee-Plaintiff Osterday, Judge
Trial Court Cause No.
20D01-1710-F6-1508
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2430 | May 10, 2019 Page 1 of 3
[1] Stephonn T. Sutton appeals his conviction for level 6 felony failure to return to
lawful detention. Sutton failed to appear at his jury trial and was tried in
absentia.1 He concedes that he knowingly and voluntarily waived his right to
counsel and had elected to represent himself at his jury trial. He now asserts
that the trial court violated his right to counsel in failing to order standby
counsel to represent him and try his case in his absence. Sutton has failed to
satisfy Indiana Appellate Rule 46’s requirement of providing a cogent argument
supported by citation to authority. See Ind. Appellate Rule 46(A)(8)(a)
(providing that each contention made in argument section of appellant’s brief
“must contain the contentions of the appellant on the issues presented,
supported by cogent reasoning” and “citations to the authorities … relied on.”).
Accordingly, he has waived appellate review of this issue. See Foutch v. State, 53
N.E.3d 577, 581 n.1 (Ind. Ct. App. 2016) (waiving issue for lack of cogent
argument).
[2] Waiver notwithstanding, Sutton’s claim is without merit. Despite the knowing
and voluntary waiver of his right to counsel, Sutton appears to suggest that the
trial court abused its discretion in failing to reassert his right to counsel for him
and to direct standby counsel to take over when he failed to appear. We
1
Although criminal defendants have the constitutional right to be present at all stages of their trial, a
defendant may be tried in absentia if the trial court determines that the defendant knowingly and voluntarily
waived the right to be present. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007). Sutton does not assert that
his constitutional right to be present was violated or that he did not knowingly and voluntarily waive that
right. Indeed, it is undisputed that he knew of the scheduled trial date but failed to appear. See Brown v. State,
839 N.E.2d 225, 227 (Ind. Ct. App. 2005) (trial court may presume defendant voluntarily, knowingly, and
intelligently waived right to be present upon showing defendant knew scheduled trial date but failed to
appear), trans denied (2006).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2430 | May 10, 2019 Page 2 of 3
initially note that the appointment of standby counsel for a pro se defendant is
discretionary, as is the trial court’s decision to direct standby counsel to take
over at any point during the proceedings. Sherwood v. State, 717 N.E.2d 131,
135 n.2 (Ind. 1999). Moreover, it is within the trial court’s discretion to
determine whether a defendant may abandon his pro se defense after the trial
has begun and reassert his right to counsel. Koehler v. State, 499 N.E.2d 196,
198-99 (Ind. 1986). We do not equate Sutton’s voluntary failure to appear as a
reassertion of the right to counsel, and the trial court was under absolutely no
obligation to direct standby counsel to take over the proceeding in Sutton’s
absence. We find no abuse of discretion and affirm the conviction.
[3] Affirmed.
Bradford, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2430 | May 10, 2019 Page 3 of 3