Gary Gentner v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 03 2017, 6:29 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary Gentner, March 3, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1609-CR-2120
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1511-F5-63
Bailey, Judge.
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Case Summary
[1] Gary Gentner (“Gentner”) was convicted after a jury trial of Operating a Motor
Vehicle while Privileges Are Forfeited for Life, a Level 5 felony, 1 and Resisting
Law Enforcement, as a Class A misdemeanor.2 The trial court sentenced
Gentner to an aggregate term of imprisonment of six years. He now appeals.
[2] We affirm.
Issues
[3] Gentner raises two issues for our review. We restate these as:
I. Whether the trial court abused its discretion when it
proceeded with trial and sentencing with Gentner in
absentia; and
II. Whether the sentence imposed was inappropriate under
Appellate Rule 7(B).
Facts and Procedural History
[4] In 2005, Gentner was convicted of Operating a Vehicle as a Habitual Traffic
Violator, as a result of which his driving privileges were forfeited for life in the
State of Indiana. (App’x Vol. 2 at 105.)
1
Ind. Code § 9-30-10-17.
2
I.C. § 35-44.1-3-1(a)(3).
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[5] On the night of November 22, 2015, Officer Austin Schutter (“Officer
Schutter”), of the Lafayette Police Department, observed in operation on a road
a silver Buick with North Dakota plates that he knew to be registered to
Gentner. Officer Schutter was en route to a dispatched call, and reported
information concerning the vehicle to police dispatch; he then proceeded on to
the other call.
[6] Police dispatch notified Officer Alexander Feistel (“Officer Feistel”) of
Gentner’s vehicle and where it was being operated. Officer Feistel proceeded to
the location, observed the vehicle in operation, and ran the North Dakota
license plate through a Bureau of Motor Vehicles (“BMV”) database. The
database records indicated that the license plate belonged to a Chevrolet
Suburban, not the silver Buick to which the plate had been affixed. Officer
Feistel also obtained the BMV record for Gentner. Officer Feistel then initiated
a traffic stop.
[7] The silver Buick stopped and, before Officer Feistel could exit his own vehicle,
Gentner had opened the driver’s door of the Buick, gotten out of the car, and
stood looking squarely at Officer Feistel’s police car. Having seen Gentner’s
BMV photograph, Officer Feistel immediately recognized Gentner, and,
quickly getting out of the police car, Office Feistel instructed Gentner to sit back
down in the Buick.
[8] Rather than comply with this instruction, Gentner instead began to flee Officer
Feistel on foot. Officer Feistel pursued Gentner through the neighborhood in
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which the traffic stop had been initiated until Gentner proceeded down an alley.
Eventually, Gentner encountered a fence. Officer Feistel caught up and,
concerned for his safety and seeking to end the pursuit, tackled Gentner to the
ground, handcuffed him, and placed him under arrest.
[9] On November 23, 2015, the State charged Gentner with Operating a Motor
Vehicle while Privileges Are Forfeited for Life and Resisting Law Enforcement.
Gentner was subsequently released on bond.
[10] On March 10, 2016, a pretrial conference was conducted, during which the trial
court announced a trial date of May 31, 2016, and a final pretrial conference
date of May 13, 2016. On April 7, 2016, the trial court rescheduled the jury
trial to June 1, but left the pretrial conference scheduled for May 13. Gentner’s
counsel left a voicemail for Gentner in advance of the pretrial conference, but
Gentner did not appear for the conference. The trial court then revoked
Gentner’s bond and issued a warrant for Gentner’s arrest.
[11] Gentner’s counsel again left a message for Gentner notifying him of the trial
date. On June 1, 2016, a trial was conducted; Gentner did not appear for the
trial. Gentner’s counsel moved for a continuance, which the trial court denied.
Gentner was tried in absentia, and the jury found him guilty as charged. On
July 22, 2016, a sentencing hearing was conducted, again with Gentner in
absentia. The court entered judgments of conviction against Gentner and
sentenced him to an aggregate sentence of six years: a six-year term of
imprisonment for Operating a Motor Vehicle while Privileges Are Forfeited for
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Life, and a one-year term of imprisonment for Resisting Law Enforcement,
with the sentences run concurrently.
[12] On August 3, 2016, police apprehended Gentner. On August 18, 2016,
Gentner appeared in front of the trial court and requested appellate counsel.
[13] This appeal ensued.
Discussion and Decision
Trial In Absentia
[14] In this appeal, Gentner first argues that the trial court abused its discretion
when it conducted his trial in absentia. The United States Constitution and the
Indiana Constitution both afford defendants in a criminal proceeding the right
to be present at all stages of the trial. U.S. Const. amend. VI; Ind. Const. art. 1,
§ 13. If a defendant knowingly and voluntarily waives that right, however trial
may occur in absentia. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007). As the
Indiana Supreme Court has stated:
When a defendant fails to appear for trial and fails to notify the
trial court or provide it with an explanation of his absence, the
trial court may conclude that defendant’s absence is knowing and
voluntary and proceed with trial when there is evidence that the
defendant knew of his scheduled trial date.
Id. (quoting Freeman v. State, 541 N.E.2d 533, 535 (Ind. 1989)).
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[15] “The best evidence that a defendant knowingly and voluntarily waived his or
her right to be present at trial is ‘the defendant’s presence in court on the day
the matter is set for trial.’” Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind.
1997). Thus, when a defendant knows of the trial date but fails to appear, the
trial court may presume that the defendant knowingly and voluntarily waived
the right to be present at the trial. Brown v. State, 839 N.E.2d 225, 227 (Ind. Ct.
App. 2005), trans. denied. However, “waiver can also be implied when a
defendant is voluntarily absent from the trial.” Hagenmeyer v. State, 683 N.E.2d
629, 630 (Ind. Ct. App. 1997) (citing James v. State, 613 N.E.2d 15, 24 (Ind.
1993)). Further, “a defendant who has been tried in absentia ‘must be afforded
an opportunity to explain his absence and thereby rebut the initial presumption
of waiver.’” Brown, 839 N.E.2d at 227. Upon appellate review, we look to the
entire record to determine whether waiver of the right to be present at trial was
voluntary, knowing, and intelligent. Id. at 228.
[16] Here, Gentner, who had posted bond, attended a pretrial conference on March
4, 2016. During that conference, a final pretrial conference was set for May 13,
2016, and a jury trial was set for May 31, 2016. Gentner was ordered at the
March 4, 2016 conference to appear in person at both the May 13, 2016
conference and the May 31, 2016 trial.
[17] On April 7, 2016, the trial court issued an order rescheduling the May 31, 2016
trial by postponing it for one day—to June 1, 2016. The order reiterated the
court’s instruction for Gentner to appear in person at both the May 13, 2016
pretrial conference, which had not been rescheduled, and the trial.
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[18] Gentner failed to appear at the May 13, 2016 conference, and the trial court
issued a warrant for Gentner’s arrest. The court also reaffirmed the June 1,
2016 trial date. Counsel for Gentner filed an affidavit with the court averring
that he had attempted to contact Gentner by phone and was unable to leave a
voicemail message, but left a message with “a close associate” of Gentner and
was unable to confirm whether that message had been passed along. (App’x
Vol. 2 at 33.)
[19] Ultimately, Gentner did not appear at trial, which was conducted in his
absence. Gentner was eventually apprehended on August 3, 2016, and Gentner
appeared in court on August 18, 2016. The trial court reviewed the sentencing
order with Gentner at that time. Gentner requested appointment of appellate
counsel, but the record is silent as to whether Gentner provided any explanation
for his absence. There are no additional filings reflected on the trial court’s
docket that suggest any supplemental information concerning Gentner’s
absence was provided. On appeal, Gentner acknowledges that the record is
silent on that point and offers no explanation for his absence.
[20] Simply put, Gentner failed to attend a pretrial conference that he had been
directed to attend, and evaded apprehension from that point until his arrest in
August 2016—a period of time lasting more than two months. The record
discloses that Gentner was afforded a hearing after his arrest, but he apparently
provided no explanation for his absence. The day of trial, Gentner’s trial
counsel requested a continuance, but was unable to offer any grounds other
than Gentner’s absence. Gentner has an extensive history of interaction with
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police and the courts in California, Washington, North Dakota, and Indiana.
Thus, even without a precise explanation from Gentner for his absence, the
record, viewed in its entirety, supports a conclusion that Gentner’s absence
from trial was voluntary, knowing, and intelligent. We accordingly find no
abuse of discretion in the trial court’s denial of the motion to continue to the
trial and to conduct the trial with Gentner in absentia.
Inappropriateness
[21] Gentner’s other contention on appeal is that his sentence was inappropriate and
requires revision under Appellate Rule 7(B). The authority granted to this
Court by Article 7, § 6 of the Indiana Constitution permitting appellate review
and revision of criminal sentences is implemented through Appellate Rule 7(B),
which provides: “The Court may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” Under this rule, and as interpreted by case law, appellate courts may
revise a sentence after due consideration of the trial court’s decision, if the
sentence is found to be inappropriate in light of the nature of the offense and the
character of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.
2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of
such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[22] Here, Gentner was convicted of one count each of a Level 5 felony and a Class
A misdemeanor. For Operating a Motor Vehicle while Privileges Are Forfeited
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for Life, a Level 5 felony, Gentner faced a sentencing range of one to six years
imprisonment, with an advisory sentence of three years. I.C. § 35-50-2-6(b).
For Resisting Law Enforcement, a Class A misdemeanor, Gentner faced a
sentence of up to one year of imprisonment. I.C. § 35-50-3-2. The trial court
sentenced Gentner to the maximum terms of imprisonment for each, and ran
the sentences concurrent with one another, yielding an aggregate term of
imprisonment of six years.
[23] Looking to the nature of Gentner’s offenses, we observe nothing particularly
remarkable about the nature of his offense of Operating a Motor Vehicle while
Privileges are Forfeited for Life. As to his offense of Resisting Law
Enforcement, Gentner caused Officer Feistel to engage in an extended foot-
chase down the middle of a public road and through several yards, leaving three
passengers in the vehicle and potentially subjecting Officer Feistel to danger
from one of the vehicle’s occupants. Moreover, Gentner’s conduct suggests
that he intended to flee as soon as the traffic stop occurred, as Gentner had
gotten out of his car before Officer Feistel had an opportunity to open the door
to his police car.
[24] With respect to his character, our review of the presentence investigation report
discloses that Gentner has a long history of criminal activity in California,
Washington, Indiana, and North Dakota. Gentner’s criminal history began in
1989 and continued unabated into 2016. The vast majority of his convictions
arose from substance- and vehicle-related offenses. These gradually escalated
from misdemeanor- to felony-level offenses. By 2005, Gentner’s driving
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privileges had been forfeited for life, but he continued to drive even after that
point, accruing multiple convictions in North Dakota, Washington, and
Indiana for driving and substance-related offenses. Gentner was arrested on
February 7, 2016—during the pendency of the charges in this case—for
Operating a Motor Vehicle while Privileges Are Forfeited for Life in Carroll
County. Gentner has a history of failing to appear for court dates, and has
previously been held in contempt of court for such conduct. Gentner has also
had his probation revoked on several occasions.
[25] Simply put, Gentner’s extensive criminal history and continued commission of
motor vehicle offenses, together with his failure to benefit from prior
opportunities for rehabilitation, speak ill of his character, and do nothing to
lighten the gravity of the offenses here. Gentner has not persuaded us that his
sentence in this case was inappropriate.
Conclusion
[26] The trial court did not abuse its discretion when it tried Gentner in absentia.
Gentner’s sentence is not inappropriate.
[27] Affirmed.
Najam, J., and May, J., concur.
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