Brittany L. Loftin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 17 2018, 10:02 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
Peter D. Todd Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brittany L. Loftin, September 17, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-934
v. Appeal from the
Elkhart Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Kristine A. Osterday, Judge
Trial Court Cause No.
20D01-1711-F6-1632
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 1 of 10
[1] Brittany L. Loftin (“Loftin”) pleaded guilty in Elkhart Superior Court 1 to
failure to return to lawful detention1 as a Level 6 felony, and Senior Judge
David T. Ready (“Senior Judge Ready”) was the judge that conducted the
guilty plea hearing. Some weeks later, Loftin’s sentencing hearing was held,
and Judge Kristine A. Osterday (“Judge Osterday”), the presiding judge of
Elkhart Superior Court 1, conducted that hearing. Loftin appeals, claiming that
Judge Osterday did not have jurisdiction to sentence her pursuant to Indiana
Trial Rule 63.
[2] We affirm.
Facts and Procedural History
[3] On March 13, 2017, Loftin was directed to serve a sentence in Cause Number
20D01-1611-F4-294 (“Cause 294”) in the Elkhart County Community
Corrections work release facility. On July 24, 2017, Loftin left the facility with
permission to go to work, and she was required to return the same day. By the
next morning, Loftin had not returned. In November 2017, the State charged
Loftin with Level 6 felony failure to return to lawful detention for her failure to
return to the work release facility on July 24, 2017, and a warrant was issued for
her arrest. Appellant’s App. Vol. II at 3, 14. On December 4, 2017, a car in
which Loftin was a passenger was stopped by police, she informed the officers
of the outstanding warrant, and she was arrested. Loftin appeared with counsel
1
See Ind. Code § 35-44.1-3-4(c).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 2 of 10
at the initial hearing, which was held before Judge Osterday.2 Tr. Vol. II at 2.
Judge Osterday read the charging information to Loftin and advised Loftin that
she had been charged with this new crime related to her failure to return to
Community Corrections, which Judge Osterday explained was a separate
offense from a violation of probation petition that had been filed in Cause 294.
[4] On February 6, 2018, which was the day that her trial was to begin, Loftin
pleaded guilty, without a written plea agreement, to the Level 6 felony of failure
to return to lawful detention. Senior Judge Ready presided at the guilty plea
hearing. He reviewed the charging information with Loftin, and he advised her
of her rights. Loftin acknowledged that she had been committed to Elkhart
County Community Corrections in Cause 294, that she was released from the
work release facility on July 24 in the morning, was supposed to return the
same day, and had not returned as of 9:00 a.m. the next day. Id. at 26. She
acknowledged that she never voluntarily returned to the work release facility
and that she was arrested on an outstanding warrant when she was a passenger
in a car that got pulled over for a traffic violation. Id. at 27. At the conclusion
of the hearing, Senior Judge Ready accepted Loftin’s guilty plea and entered
judgment of conviction. Id. at 30.
[5] On March 22, 2018, the trial court held a sentencing hearing, and Judge
Osterday presided. Judge Osterday began by confirming that counsel had
2
According to the record, Judge Osterday was a magistrate at the time. Tr. Vol. II at 2.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 3 of 10
received and reviewed the presentence investigation report, and then she
received argument from counsel regarding sentencing. Counsel for Loftin
asked the trial court not to aggravate the sentence and urged the court to
consider alternative placement again, arguing: (1) Loftin pleaded guilty and
accepted responsibility; (2) this was not a violent crime, and Loftin “was
someone who just didn’t return,” (4) Loftin’s sister was ill, Loftin had been
asked to help care for her children, and Loftin was “overwhelmed” and regrets
not returning. Id. at 35. Loftin told Judge Osterday, “I apologize and I’m just
ready to get everything over with. You know, get home to my son. Get all of
this over with.” Id. at 36. The State argued that, while Loftin did plead guilty,
she had “numerous opportunities” to do so before trial but, because she waited
until the morning of trial to plead, “the trial date was wasted because of her.”
Id. The State also argued that Loftin’s “previous history is particularly
egregious and she was fortunate to be in work release in the first place and . . .
alternative placement is not appropriate when you escape.” Id. at 37.
Therefore, the State urged the trial court to impose an aggravated and executed
sentence at the Indiana Department of Correction.
[6] Following argument, Judge Osterday remarked that Loftin’s criminal history
was not particularly long but was “significant.” Id. Judge Osterday also stated
that, after reading Loftin’s presentence investigation report, she questioned
whether Loftin was “being honest with [her]self” about alcohol issues. Id. at
38. Judge Osterday sentenced Loftin to eighteen months in the Elkhart County
Jail and authorized alternative placement if approved by Community
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 4 of 10
Corrections.3 Id. at 38-39; Appellant’s App. Vol. II at 9. Loftin did not object to
Judge Osterday presiding at the sentencing hearing. Loftin now appeals.
Discussion and Decision
[7] Loftin contends that, pursuant to Indiana Trial Rule 63, Judge Osterday lacked
jurisdiction to enter the sentencing order, and thus the sentencing order is void.
Appellant’s Br. at 6. As an initial matter, we find that Loftin has waived this
issue for appeal by failing to object at the sentencing hearing to having Judge
Osterday determine and impose her sentence. Our Supreme Court has
recognized that “the failure of a party to object at trial to the authority of a
court officer to enter a final appealable order waives the issue for appeal.” 4
Floyd v. State, 650 N.E.2d 28, 32-33 (Ind. 1994). Here, Loftin did not object at
the sentencing hearing to Judge Osterday sentencing her, and therefore Loftin
has waived the issue. See McMichel v. State, 655 N.E.2d 61, 63 (Ind. 1995)
(defendant’s post-conviction claim, asserting that his conviction was invalid
because the master commissioner did not have authority to accept his plea or
sentence him, was properly denied due to waiver because defendant did not
object to the master commissioner’s authority to act and thus failed to properly
3
Judge Osterday ordered Loftin’s sentence in the present case to be served consecutive to sanctions for her
violation of probation in Cause 294. Tr. Vol. II at 39.
4
In its analysis, the Indiana Supreme Court observed that, as to the matter of jurisdiction, “[I]t has been the
long-standing policy of this [C]ourt to view the authority of the officer appointed to try a case not as affecting
the jurisdiction of the court.” Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994). It explained, “‘The defect
pointed out was not affecting the jurisdiction of the court, but the right and authority of its presiding judge to
act as such.’” Id. (quoting Gordy v. State, 262 Ind. 275, 282-83; 315 N.E.2d 362, 367 (Ind. 1974)).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 5 of 10
preserve the issue for appeal); see also 4 William F. Harvey & Stephen E.
Arthur, Indiana Practice, Rules of Procedure Annotated, § 63.2 (3d ed. 2017) (“An
objection must be made, however, or the point is waived.”).
[8] Waiver notwithstanding, we find no error. Loftin’s argument on appeal is that,
under the facts of her case, Indiana Trial Rule 63 required that she be sentenced
by Senior Judge Ready. The interpretation of the Indiana Trial Rules is a
question of law, which we review de novo. In re Paternity of V.A., 10 N.E.3d 61,
63 (Ind. Ct. App. 2014). In construing the meaning of the Trial Rules, our
objective is to give effect to the intent underlying the rule. Id.
[9] Trial Rule 63, titled “Disability and unavailability of a judge,” provides, in
pertinent part:
The judge who presides at the trial of a cause or a hearing at which evidence is
received shall, if available, hear motions and make all decisions and
rulings required to be made by the court relating to the evidence and the
conduct of the trial or hearing after the trial or hearing is concluded. If
the judge before whom the trial or hearing was held is not available by
reason of death, sickness, absence or unwillingness to act, then any
other judge regularly sitting in the judicial circuit or assigned to the
cause may perform any of the duties to be performed by the court after
the verdict is returned[.]
[10] This court has recognized that a purpose of Trial Rule 63 is to ensure that a
successor judge who did not receive evidence and view witnesses is not
reweighing evidence or assessing credibility of witnesses. See Gunter v. State,
605 N.E.2d 1209, 1211 (Ind. Ct. App. 1993) (criminal law contemplates that
same judge will preside throughout criminal trial, and the purpose of the rule is
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 6 of 10
“to insure to both parties the fairness and evenhandedness that arises from
having the same person preside over the various facets of a trial”), trans. denied;
Oliver v. Morrison, 431 N.E.2d 140, 143-44 (Ind. Ct. App. 1982) (holding that
special judge who did not preside at trial but ruled on motion to correct error,
and, in so doing, assigned credibility to a witness without having seen the
witness, abused his discretion); 4 William F. Harvey & Stephen E. Arthur,
Indiana Practice, Rules of Procedure Annotated, § 63.2 (3d ed. 2017) (“[T]he rule
insists that a second or successor judge cannot resolve issues of credibility and
weight of the evidence, without having heard the evidence and observe[d] the
demeanor of the witnesses.”).
[11] Here, Loftin’s argument is that because Senior Judge Ready conducted the
guilty plea hearing, he “maintained jurisdiction over the case,” and since
nothing in the record indicates that Senior Judge Ready was unavailable to
conduct the sentencing hearing, Judge Osterday’s sentencing order is “void and
without effect” pursuant to Indiana Trial Rule 63. Appellant’s Br. at 4, 6. Loftin
asks this court to remand the action to the trial court “so that Senior Judge
Ready can sentence her or Judge Osterday can issue an order that determines
and shows [Senior] Judge Ready is unavailable before she sentences Loftin.”
Id. at 6. We disagree with Loftin’s interpretation and application of Trial Rule
63 and find that, contrary to Loftin’s claim, remand for re-sentencing is not
warranted.
[12] As this court has observed, a guilty plea hearing is not the same as a criminal
trial. See Long v. State, 962 N.E.2d 671, 674 (Ind. Ct. App. 2012) (holding that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 7 of 10
master commissioner who presided at guilty plea hearing was not statutorily
authorized to sentence defendant because the statute only authorizes sentencing
by magistrate or master commissioner if he or she “presides at a criminal
trial[,]” and appellate court was “not at liberty to conclude that [the statute’s
language] indicating ‘criminal trial’ really means ‘criminal trial or guilty plea
hearing’”), trans. denied.
[13] We agree with the Long court that a guilty plea hearing and a trial are not
equivalents. At a guilty plea hearing, the applicable criminal charges are read
to the defendant, and a factual basis is presented, based on charging
information and probable cause affidavit, and, thereafter, the defendant, if he or
she so chooses, accepts the truthfulness of the allegations. This is
distinguishable from a trial, where evidence and witnesses are presented,
observed, and evaluated, and guilt or innocence is determined. We thus find
that Trial Rule 63’s directive – that “[t]he judge who presides at the trial of a cause
or a hearing at which evidence is received shall, if available, . . . make all [post-trial]
decisions and rulings” – does not require that the same judge must conduct both
the guilty plea hearing and the sentencing hearing. Ind. Trial Rule 63(A)
(emphasis added).
[14] Furthermore, even if it was error in this case for one judge to accept Loftin’s
guilty plea and another judge to sentence her, Loftin has not shown that she
was prejudiced, and, thus, any error was harmless. First, Loftin has not
alleged, and we do not find, that Judge Osterday improperly re-evaluated
evidence that had been presented to Senior Judge Ready at the guilty plea
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 8 of 10
hearing. The guilty plea hearing consisted of Senior Judge Ready reviewing the
charging information with Loftin and advising Loftin of her rights. Loftin
acknowledged that she left the work release facility and did not return and that
she was later arrested on the outstanding warrant. Tr. Vol. II at 26-27. At the
subsequent sentencing hearing, Judge Osterday outlined that the hearing would
include both sentencing in the current case, as well as imposition of sanctions
for a probation violation in Cause 294, and then she confirmed that the parties
had received and read the presentence investigation report. Thereafter, counsel
for each party presented argument as to sentencing. When the trial court asked
Loftin if there was anything she wanted to say on her own behalf, she told
Judge Osterday, “I apologize and I’m just ready to get everything over with.
You know, get home to my son. Get all of this over with.” Id. at 36. Judge
Osterday, during her imposition of sentence, made statements indicating that
she had read and was familiar with the contents of Loftin’s presentence
investigation report. We agree with the State that “[a]ll of the evidence relevant
to the sentencing determination was provided at the sentencing hearing,”
including the presentence investigation report and probable cause affidavit.
Appellee’s Br. at 8. Given these facts, there is no likelihood of unfairness to
Loftin based on information or evidence given to Senior Judge Ready at the
guilty plea hearing that Judge Osterday either did not have or improperly re-
evaluated at the subsequent sentencing hearing.
[15] Second, Judge Osterday sentenced Loftin to eighteen months in the Elkhart
County Jail and approved of alternative placement. The maximum sentence for
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 9 of 10
a Level 6 felony is two and one-half years. Ind. Code § 35-50-2-7. Thus, Loftin
received a sentence well below what was permitted. As Loftin has not argued,
much less shown, that she suffered any harm as a result of Judge Osterday
imposing sentence, rather than Senior Judge Ready, we find that any error was
harmless. See Gunter, 605 N.E.3d at 1211 (finding that any error in having a
special judge preside over the habitual offender phase of a trial, after the first
judge disqualified himself following the first phase of trial, was harmless
because there was no suggestion of any actual prejudice). Based on the record
before us, we conclude that Judge Osterday’s sentencing order is not void, and
remand for re-sentencing is not warranted.
[16] Affirmed.
Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 10 of 10