Samuel Jude Clark v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 27 2019, 10:37 am
regarded as precedent or cited before any
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.
Lafayette, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samuel Jude Clark, August 27, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-172
v. Appeal from the
Tippecanoe Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Kristen E. McVey, Judge
Trial Court Cause No.
79D05-1706-F6-589
Altice, Judge.
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Case Summary
[1] A jury found Samuel Jude Clark guilty of theft, conspiracy to commit
obstruction of justice, and obstruction of justice, all Level 6 felonies. Clark
admitted to being a habitual offender. He appeals and raises three issues that
we restate as:
I. Can Clark, who admitted to being a habitual offender,
challenge the habitual offender adjudication on direct appeal by
claiming that his trial counsel was ineffective?
II. Do Clark’s convictions for conspiracy to commit obstruction
of justice and obstruction of justice violate double jeopardy
principles?
III. In sentencing Clark, did the trial court fail to specify which
felony was being enhanced for the habitual offender
adjudication?
[2] We affirm and remand for sentence clarification.
Facts & Procedural History
[3] On November 21, 2016, Tony Goin was the acting manager of CD Land, an
electronics retail store in Lafayette that bought and sold CDs and DVDs. Perry
Baldridge, who was Clark’s roommate, entered the store around 11:30 a.m.
Also in the store at that time was a customer known to Goin as Jamal. Goin
recognized both Baldridge and Jamal and considered them to be frequent
customers. Clark entered the store a few minutes after Baldridge and stood
near the front door. After Baldridge and Goin finished their business, Clark left
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the store and Baldridge walked out right behind him. Goin then heard the
sound of breaking glass and a vehicle alarm. Jamal alerted Goin that the
vehicle alarm was Goin’s black Jeep. Goin called 911 as he rushed outside, and
as he reached the parking lot, Goin saw a black Chrysler sedan drive away.
Jamal told Goin that he had seen Clark and Baldridge, who Jamal knew, get
into the Chrysler. In Goin’s 911 call, he told police that the suspected
perpetrators were Clark and Baldridge.
[4] When Goin reached his Jeep, he saw that the front driver’s side window had
been smashed and that his briefcase was missing from the front passenger seat.
Inside the briefcase were the following: (1) $10,000 in cash and vehicle titles, as
Goin planned to buy a vehicle that day, (2) Goin’s wallet containing another
$1100, his credit cards, and his driver’s license, and (3) prescription medicines.
Lafayette Police Department Officer Steven Prothero arrived about six or seven
minutes after Goin made the 911 call and, based on Goin’s statements and
“distinctive description” of the suspects, Officer Prothero was able to identify
Baldridge “due to recent contact” with him. Id. at 95.
[5] Meanwhile, Baldridge and Clark drove to their residence, and, once inside,
Baldridge saw Goin’s briefcase and its contents including the cash, car titles,
credit cards, and Goin’s identification. Clark gave some of the cash to
Baldridge. As police cars began arriving, Clark grabbed “everything” and ran
out the back door. Id. at 72. Baldridge hid under a floorboard in the attic
before being discovered by police.
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[6] On June 6, 2017, the State charged Clark with Level 6 felony theft and alleged
he was a habitual offender. In March 2018, the State added Count II, Level 6
felony conspiracy to commit obstruction of justice, Count III, Level 6 felony
obstruction of justice, and Count IV, Level 6 felony conspiracy to commit
intimidation. The State dismissed the conspiracy to commit intimidation
charge on December 19, 2018.
[7] At the December 2018 jury trial, Goin testified to the above circumstances
surrounding the theft from his Jeep. Baldridge, who was under subpoena,
appeared and testified pursuant to a term in his plea agreement for Level 6
felony theft that required him to “testify truthfully in any hearing, trial, or court
proceeding involving the events in this case.” State’s Exhibit 12. Baldridge
testified that on November 21, 2016, he and Clark went to CD Land, with
Baldridge driving his sister’s black Chrysler sedan. Baldridge said that after he
was done with his transaction with Goin, he walked to his car. As he was
plugging in his phone and putting on his seatbelt, he heard a window shatter.
Clark then jumped into the back of the car and yelled, “go, go, go.” Transcript
Vol. 2 at 70, 78. Baldridge said that when Clark got in the car, he was carrying
a laptop-type of briefcase. Baldridge stated that, after they were back at their
residence and he saw all of Goin’s credit cards and vehicle titles, he “put two
and two together” and “figured [] out” that Clark had taken the briefcase from
Goin’s Jeep. Id. at 71. Baldridge said that he did not know beforehand that
Clark was going to break into Goin’s vehicle and steal from him, stating, “If I
could have prevented it I would’ve.” Id. at 83.
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[8] Baldridge testified that, while in jail in January 2018, he met fellow inmate
Michael Tunis, who knew Clark. According to Baldridge, Tunis told him that,
since he (Baldridge) had already pled guilty, he needed to sign a note saying
that “Jude Clark was innocent” and “did not commit the crime” because “it
would be stupid for two people to go down” and, instead, Baldridge needed to
“take the fall for it.” Id. at 74. Baldridge said that Tunis wrote the note and
handed it to Baldridge for his signature. It read:
Samual Jude Clark had nothing to do with the theft that occured
at CD Land on November of 2016. I am the one who committed
this crime on my own occord.
State’s Exhibit 5 (spelling in original). Baldridge testified that the contents of the
note were not accurate, but he signed it because he was scared. Tunis told
Baldridge he had to contact the jail’s notary public and get it notarized and that,
if he did not do so, Tunis and others “were going to jump” him. Transcript Vol.
2 at 74. Baldridge got his signature notarized and gave the note back to Tunis. 1
[9] Prior to trial and as part of discovery in Clark’s case, the false statement was
submitted to the Tippecanoe County Prosecutor’s Office. After receiving
information that the letter was not actually authored by Baldridge, Investigator
Brad Hayworth began an investigation into the matter. Hayworth testified that
he met with Baldridge and his attorney, and he listened to recorded jail phone
1
We note that Tunis also appeared at trial under subpoena but refused to testify and was held in contempt.
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calls that Tunis made to Clark in January and February 2018, in which the two
discussed getting Baldridge to sign a statement saying that Clark did not
commit the theft. After listening to the calls, Hayworth met with Tunis, who
confirmed that it was him speaking to Clark in the calls, which related to a plan
to have Baldridge sign a false statement. The phone calls were played for the
jury.
[10] The jury found Clark guilty of Counts I, theft, Count II, conspiracy to commit
obstruction of justice, and Count III, obstruction of justice. Clark waived his
right to a trial by jury on the habitual offender enhancement and admitted to
being a habitual offender. Following a sentencing hearing, the trial court
sentenced Clark to one and one-half years for each conviction, enhanced by
four years on the habitual offender adjudication, ordering the sentences in
Counts II and III to be served concurrently but consecutive to the sentence
imposed in Count I, for a seven-year aggregate sentence. The trial court
ordered six years executed and one year served at a level to be determined by
community corrections. Clark now appeals.
Discussion & Decision
I. Habitual Offender Adjudication
[11] Clark asserts that we should reverse his habitual offender adjudication because
he received ineffective assistance of trial counsel, arguing that his trial counsel
was ineffective by allowing Clark to admit to the habitual offender status when
the charging information allegedly did not list three prior unrelated felonies as
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required by statute. Clark’s habitual offender charging information alleged the
following four prior convictions:
On or about September 27, 2006, Samuel Jude Clark was
convicted and sentenced of the crime of Resisting Law
Enforcement (Class D felony) and Receiving Stolen Property
(Class D felony), in Cause No. 4lD03-0410-FB-24 committed on
or about October 19, 2004.
On or about September 27, 2006, Samuel Jude Clark was
convicted and sentenced of the crime of Auto Theft (Class D
felony), in Cause No. 4lD03-0410-FD-272 committed on or
about October 19, 2004.
On or about February 27, 2007, Samuel Jude Clark was
convicted and sentenced of the crime of Possession of Stolen
Property (Class D felony), in Cause No. 79D06-0608-FD-l90
committed on or about August 29, 2006.
On or about February 29, 2012, Samuel Jude Clark was
convicted and sentenced of the crime of Possession of
Methamphetamine (Class C felony), Theft (Class D felony) and
Theft (Class D felony), in Cause No. 79D02-1108-FB-35
committed on or about August 26, 2011.
Appellant’s Appendix Vol. II at 14 (emphasis added). The crux of Clark’s
appellate claim is that the habitual offender information was “defective on its
face” because, due to overlapping dates of offenses, it did not demonstrate that
Clark had three prior unrelated felonies as required by Ind. Code § 30-50-2-8
and that, as a result, there was “insufficient evidence to demonstrate that he
was a habitual offender.” Appellant’s Brief at 12, 14.
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[12] As Clark acknowledges, our Supreme Court in Tumulty v. State, 666 N.E.2d
394, 395-96 (Ind. 1996), held that where a defendant admitted to being a
habitual offender, he or she may not challenge a habitual offender enhancement
on direct appeal and that, instead, the appropriate avenue to challenge a
habitual offender adjudication after admitting to it was to petition for post-
conviction relief. This court reaffirmed that principle in Robey v. State, 7 N.E.3d
371 (Ind. Ct. App. 2014), trans. denied.
[13] In Robey, a defendant appealed his habitual offender adjudication contending
that it lacked a sufficient factual basis. Specifically, Robey asserted that one of
the predicate felonies used to establish his habitual offender status, which he
had admitted to, did not qualify under I.C. § 35-50-2-8. The State did not
dispute Robey’s claim. Even so, the Robey court affirmed the trial court’s
adjudication, explaining:
In Indiana, [] it is well-settled that a person who pleads guilty
cannot challenge his convictions by means of direct appeal, see
Kling v. State, 837 N.E.2d 502, 504 (Ind. 2005), and the same is
true of one who admits to habitual offender status. See Stanley v.
State, 849 N.E.2d 626, 630 (Ind. Ct. App. 2006).
****
There is, quite simply, no room in Tumulty’s holding for any
exceptions to the rule that you cannot challenge a habitual
offender adjudication on direct appeal after pleading guilty. If
Robey wishes to further challenge the factual basis underlying his
admission to being a habitual offender, he will have to do so in a
PCR petition.
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7 N.E.3d at 383-84.
[14] Clark presents his claim as one for ineffective assistance of counsel, asserting
that his trial counsel was ineffective by both failing to object to a deficient
habitual offender charging information and “having Clark admit he was a
Habitual Offender,” when it was “evident on the face of the document” that
Clark did not qualify as such. Reply Brief at 6. Clark’s ineffectiveness claim
effectively asks us to decide whether the habitual offender charging information
was deficient for failing to identify three unrelated prior convictions. However,
Indiana courts have made clear that where a defendant admitted to being a
habitual offender as charged, he may challenge the resulting adjudication,
including the sufficiency of the charging information, only by filing a petition
for post-conviction relief. See Robey, 7 N.E.3d at 383.
[15] We thus decline Clark’s request to bootstrap his habitual offender challenge into
a direct appeal by labeling it an ineffective assistance of counsel claim. See, e.g.,
Stanley v. State, 849 N.E.2d 626, 629 (Ind. Ct. App. 2006) (although defendant
framed issue on direct appeal as a sentencing error – arguing that his thirty-year
sentence was erroneous because one of the predicate offenses supporting his
habitual offender enhancement did not count as a prior unrelated felony
conviction – appellate court found that the crux of defendant’s argument was
that the factual basis supporting his admission as habitual offender was
insufficient, and therefore defendant’s claim needed to be brought by a petition
for post-conviction relief). Accordingly, we affirm the trial court’s habitual
offender adjudication. Robey, 7 N.E.3d at 384 (affirming habitual offender
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adjudication, even though there was no dispute that one of the predicate
felonies used to establish his habitual status did not qualify, because defendant
needed to seek relief through post-conviction remedies).
II. Double Jeopardy
[16] Clark asserts that his convictions for Count II, conspiracy to commit
obstruction of justice, and Count III, obstruction of justice, violate the Double
Jeopardy Clause of the Indiana Constitution, which provides: “No person shall
be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.
“Indiana’s Double Jeopardy Clause ... prevent[s] the State from being able to
proceed against a person twice for the same criminal transgression.” Lumbley v.
State, 74 N.E.3d 234, 241 (Ind. Ct. App.), trans. denied. The Indiana Supreme
Court has held that “two or more offenses are the ‘same offense’ in violation of
Article 1, Section 14 of the Indiana Constitution, if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.” Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999).
[17] Clark does not assert a violation under the statutory elements test. Instead, he
claims that his convictions constitute double jeopardy under the actual evidence
test. “The actual evidence test prohibits multiple convictions if there is ‘a
reasonable possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have been used to
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establish the essential elements of a second challenged offense.’” Gibson v. State,
111 N.E.3d 247, 254-55 (Ind. Ct. App. 2018) (quoting Richardson, 717 N.E.2d at
53), trans. denied. A “reasonable possibility” requires “substantially more than a
logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008).
“‘[R]easonable possibility’ turns on a practical assessment of whether the jury
may have latched on to exactly the same facts for both convictions.” Id. Here,
Clark contends that the evidence used to support the conspiracy charge “was
the same evidence used to demonstrate the actual Obstruction of Justice”
charge, more specifically, that the overt act in furtherance of their agreement
was Clark’s submission of the letter to the prosecutor’s office, which was the
same act that supported the obstruction charge. Appellant’s Brief at 18.
[18] In determining the facts used by the jury to establish the elements of each
offense, we consider the charging information, jury instructions, and arguments
of counsel. Gibson, 111 N.E.3d at 255. In this case, the charging information
for the conspiracy count alleged an agreement between Clark and Tunis and a
number of overt acts in furtherance of their agreement:
Clark and/or Tunis made phone calls to each other; while
speaking on the phone, Clark and Tunis agreed to make Perry
Baldridge sign a letter stating that Clark was innocent of the
charges filed against him; Clark instructed Tunis to have said
letter notarized to make it a legal document; Tunis made
Baldridge sign said letter; Tunis made Baldridge order a notary to
notarize said letter; Tunis and/or Baldridge mailed said letter to
Clark’s mother’s house; Clark submitted said letter as discovery
in a pending criminal proceeding filed against Clark.
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Appellant’s Appendix Vol. II at 52. While we recognize that the charging
information for conspiracy identifies submission of the false letter in the
criminal proceeding as an overt act, it was one of several overt acts listed in the
charging information. Our Supreme Court faced a similar situation in Redman
v. State 743 N.E.2d 263, 267 (Ind. 2001). There, the defendant challenged his
convictions for criminal confinement and conspiracy to commit murder on
double jeopardy grounds, arguing that the jury used evidence of the victim’s
abduction to establish both the overt act of the conspiracy as well as criminal
confinement. In Redman, as in the present case, the charging information
identified four alternative overt acts, one of which was abduction, and Redman
argued that there was a reasonable possibility that the evidentiary facts used by
the jury to establish abduction in the conspiracy charge may also have been
used to establish the essential element of forceful removal in the criminal
confinement charge.
[19] Our Supreme Court rejected Redman’s claim, observing that the State, in
closing argument, argued that Reman and his accomplices “performed one or
more of the overt acts, either the abduction, the confinement, the rape or the
disposal of the body” and, while the State urged that all of them occurred, the
prosecutor reminded the jury “if you only believe one of them occur[red] and
not the others that’s sufficient to convict.” Id. at 268. The Redman Court also
reviewed the jury instructions, which instructed that to convict Redman of
conspiracy as charged the State must have proven, among other things, that
Redman and one or more others performed an overt act in furtherance “by
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either abducting, or confining, or raping, or disposing of the body.” Id. The
Court concluded that “in view of the extensive evidence of the protracted
criminal episode, the State’s closing argument, and the court’s instructions
which clearly authorized any one of several bases for finding the overt act
element,” there was no sufficiently substantial likelihood that the jury relied on
the evidence of the abduction to establish the overt act element of the
conspiracy charge. Id.
[20] Similarly, in the present case, the State in closing argument addressed the
evidence that supported the conspiracy charge, directing the jury to evidence
that Tunis performed a number of overt acts in furtherance of the agreement
with Clark:
Clark or Tunis made phone calls to each other. You heard that
when you listen to the four jail phone calls. Clark and Tunis
agreed to make Perry Baldridge sign[] a letter stating that Clark
was innocent of all charges filed against him. You heard
[Baldridge] testified [sic] to that and you saw the letter. Tunis
made Baldridge sign the letter. Tunis made Baldridge order a
notary to notarize said letter. Tunis and or Baldrige mailed said
letter to Clark’s mother’s house. Clark submitted [the] letter as . .
. discovery in pending criminal matter against Clark. We allege
all of those different overt acts. You only have to find that there was
one overt act in this to find conspiracy to commit obstruction of justice.
Transcript Vol. 2 at 121 (emphasis added).
[21] In rebuttal argument, the State again addressed the conspiracy charge, and
more specifically the overt acts performed in furtherance of the agreement. The
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prosecutor quoted from statements made by Clark and Tunis in their phone
calls, including that Tunis told Clark, “I made [Baldridge] sign it when he was
on his visit[.]” Transcript Vol. 2 at 124-25. Tunis bragged to Clark that, in
getting Baldridge to sign the statement, Tunis had told him, “You sign it and
I’m not going to do nothing to you but you don’t sign and this is your ass.” Id.
at 125. Clark asked Tunis if Baldridge “wrote it up real good,” and Tunis
replied, “oh bro, I wrote it” and “[Baldridge] just signed it[.]” Id. at 126. Clark
instructed Tunis that, in order “to make it legal,” Baldridge “has to have it
notarized[.]” Id. at 125. Tunis later assured Clark, “I got that done for you
bro,” explaining that although, at first, Baldridge “acted like he wasn’t going to
do it,” Tunis “took [Baldridge’s] head and slammed it into a . . . wall” at which
time Baldridge agreed to get it notarized. Id. at 126. Clark instructed Tunis,
“Send it to my mom . . . because I don’t want it going to my house.” Id. at 126.
The State concluded by reminding the jury:
Remember, conspiracy is just a plan between two or more people
and they have to do at least one thing to put that plan in motion.
Here we have evidence of many things to put the plan in motion.
Id. at 127.
[22] The State presented evidence of a variety of other overt acts in furtherance of
the agreement, and the State reminded the jury in closing arguments that any
one of these acts could support the conspiracy charge. The jury instruction
regarding conspiracy likewise instructed the jury that the State must allege and
prove that “that the defendant and or the other person performed at least one
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overt act in furtherance of the agreement” and it, like the charging information,
listed the various acts performed by Clark and/or Tunis. Transcript at 129
(emphasis added).
[23] Considering the charging information, jury instructions, and arguments of
counsel, we do not find a reasonable possibility that the jury relied on the
submission of the false letter in the criminal proceeding to establish the overt act
element of the conspiracy charge. See Redman, 743 N.E.2d at 268. We hold
that Clark’s convictions on Counts II and III do not violate Indiana’s Double
Jeopardy Clause.
III. Sentencing
[24] The trial court sentenced Clark to one and one-half years each on Count I,
theft, Count II, conspiracy to commit obstruction of justice, and Count III,
obstruction of justice, ordering Counts II and III served concurrently but
consecutive to Count I. The trial court ordered that the habitual offender
adjudication would enhance the sentence by four years, for an aggregate seven-
year sentence. As Clark correctly observes, when defendants are convicted of
multiple offenses and found to be habitual offenders, trial courts must impose
the resulting penalty enhancement on only one of the convictions and must
specify the conviction so enhanced. Davis v. State, 843 N.E.2d 65, 67 (Ind. Ct.
App. 2006) (citing McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999)). Ind. Code
§ 35-50-2-8(j) provides that the trial court shall attach the habitual offender
enhancement “to the felony conviction with the highest sentence imposed and
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specify which felony count is being enhanced.” Here, all of the sentences at
issue were one and one-half years in length. Clark argues on appeal that the
trial court failed to specify which felony was enhanced, or “at best the wording
is vague.” Appellant’s Brief at 20. After review of the record before us, we agree.
[25] The trial court’s sentencing order provided in relevant part:
The Court imposes the following sentence:
1) Imposes a jail sentence of 1 1/2 years in Count I; 1 1/2 years
in Count II, 1 1/2 years in Count III enhanced by fours [sic] (4)
years on the Habitual count, all consecutive except Counts II and
III are concurrent, all time executed in the Indiana Department
of Corrections with credit for good time. Court recommends six
(6) years executed in the Indiana Department of Corrections with
the last year to be served at a level to be determined by the
Tippecanoe County Community Corrections.
Appellant’s Appendix Vol. II at 9. The State urges that the sentencing order
reflects that the trial court enhanced the sentence on Count III. We, however,
do not find that the trial court’s order clearly specified the conviction that was
being enhanced.
[26] The trial court’s remarks at the sentencing hearing did not clarify the matter.
There, the court stated:
Counts two and three, conspiracy to commit obstruction of
justice and obstruction of justice will run concurrently. But the
theft, count one, counts two and three and of course the
enhancement will the [sic] necessarily consecutive. So, one
count one and a half years, on count two, one and a half years,
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count three, one and a half years but again those two counts, two
and three are to be concurrent but consecutive to the others,
enhanced by four years.
Transcript Vol. 2 at 160.
[27] Additionally, we observe that the CCS incorrectly reflects that, Clark was
sentenced to one year and 180 days on the habitual adjudication and to four
years for obstruction of justice, rather than the reverse. We further note that the
Abstract of Judgment in the record states that the habitual offender count was
dismissed and Clark was found guilty on Count IV (intimidation charge), when
in fact the reverse is what occurred. Because we are remanding for clarification
of sentencing with regard to the habitual enhancement, we direct the trial court
to also correct the Abstract of Judgment to make it consistent with the trial
court’s sentencing order.
[28] We agree with Clark that the trial court did not adequately specify the
conviction to which the habitual offender enhancement attached. Accordingly,
we remand to the trial court with instructions to correct the sentence with
regard to the habitual offender enhancement. See Davis, 843 N.E.2d at 67
(failure to specify conviction being enhanced requires remand for trial court to
correct sentence).
[29] Judgment affirmed and remanded with instructions.
Kirsch, J. and Vaidik, C.J., concur.
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