Andrew Abbott v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Mar 30 2012, 9:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDREW ABBOTT, )
)
Appellant-Defendant, )
)
vs. ) No. 33A04-1109-CR-545
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Bob A. Witham, Judge
Cause No. 33D02-1012-FD-338
March 30, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Andrew Abbott appeals his sentence following a plea of guilty to class A
misdemeanor trespass.1
We affirm.
ISSUE
Whether the trial court improperly sentenced Abbott.
FACTS
On December 28, 2010, the State charged Abbott with Count 1, class D felony
theft, and Count 2, class A misdemeanor trespass. The State also alleged Abbott to be an
habitual offender. The trial court held an initial hearing on December 28, 2010, during
which Abbott pleaded not guilty to Count 1 and guilty to Count 2. The trial court took
the guilty plea under advisement and set it for disposition on January 11, 2011. As to the
remaining count, the trial court set a pre-trial conference for March 9, 2011, which it
subsequently rescheduled to March 7, 2011. The trial court ordered that Abbott be held
without bond due to a pending parole violation.
On January 11, 2011, the trial court, on its own motion, ordered that the hearing
on Count 2 be consolidated with the pre-trial conference, to be held on March 7, 2011.
On March 7, 2011, Abbott filed a motion to reset the pre-trial conference. Accordingly,
the trial court rescheduled the consolidated hearing and conference for May 16, 2011.
1
Ind. Code § 35-43-2-2.
2
On March 28, 2011, Abbott requested a change of appointed counsel. The trial
court granted Abbott’s request and reset the pre-trial conference and hearing to March 30,
2011. “By agreement of the parties,” the trial court reset the conference and hearing to
April 6, 2011. (App. 4). On its own motion, the trial court then continued the conference
and hearing to April 11, 2011. On April 11, 2011, Abbott requested that Count 2 be
dismissed “due to not being sentenced within 30 days.” (App. 4). The trial court took the
matter under advisement.
On May 18, 2011, the State filed a motion to dismiss Count 1 and the habitual
offender allegation. On May 20, 2011, the trial court granted the State’s motion and
scheduled a “review hearing” on Count 2 for June 29, 2011. The trial court subsequently
rescheduled the hearing two times “[b]y agreement of the parties[.]” (App. 4, 5). On
August 17, 2011, the trial court accepted Abbott’s guilty plea, entered judgment of
conviction, and sentenced Abbott to one year.
DECISION
Abbott asserts that the trial court improperly sentenced him. Specifically, he
argues that the trial court failed to sentence him within thirty days of his conviction for
trespass. He therefore seeks discharge.
Indiana Code section 35-38-1-2(b) provides that “[u]pon entering a conviction, the
court shall set a date for sentencing within thirty (30) days, unless for good cause shown
an extension is granted.” (Emphasis added). Here, there is no evidence in the record that
the trial court accepted Abbott’s guilty plea prior to August 17, 2011. In fact, the trial
3
court only stated that the guilty plea was taken under advisement on December 28, 2010.
Thus, we cannot say that the trial court entered a judgment of conviction on December
28, 2010, as asserted by Abbott. See State v. Daniels, 680 N.E.2d 829, 834 (Ind. 1997)
(finding that the trial court did not enter a judgment of conviction where it only stated
that the guilty plea was taken under advisement; there was no evidence that the trial court
accepted the guilty plea; and there was no order book entry finding the defendant guilty);
cf. Benson v. State, 780 N.E.2d 413, 419 (Ind. Ct. App. 2002) (finding that the undisputed
evidence showed that the trial court accepted the plea agreement where the chronological
case summary stated that the trial court entered a judgment of conviction), trans. denied.
Rather, the trial court entered the final judgment of conviction on August 17, 2011, when
it sentenced Abbott. See Ford v. State, 570 N.E.2d 84, 87 (Ind. Ct. App. 1991) (where
the trial court does not formally enter judgment following a plea of guilty, the sentence is
the final judgment of conviction), trans. denied. Accordingly, we find that the trial court
timely sentenced Abbott.2
Affirmed.
BAKER, J., and BAILEY, J., concur.
2
We also note that Abbott did not object to the delay in sentencing until April 11, 2011, several months
after he pleaded guilty to Count 2. Although the record is silent as to the reasons for the numerous delays
in sentencing, it appears that the trial court was dealing with a myriad of filings regarding Abbott,
including a motion for a speedy trial on Count 1; Abbott’s request for change of appointed counsel, which
the trial court granted; attempts to negotiate a plea agreement on Count 1; and the filing of a new charge.
During the course of these proceedings, trial court delayed the sentencing both on its own motions and
either at Abbott’s request or by agreement of the parties. We therefore presume that there was good cause
for the delays. See Vandergriff v. State, 653 N.E.2d 1053, 10.53 (Ind. Ct. App. 1995) (stating that good
cause “may be presumed where the record is silent as to the reason for the delay and the defendant made
no objection”). Given the presumed good cause for the delays, the trial court is excused from the thirty-
day sentencing requirement. Id.4