Robert D. Bowen v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
Feb 18 2013, 9:15 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK K. LEEMAN GREGORY F. ZOELLER
Carroll County Public Defender Attorney General of Indiana
Leeman Law Offices
Logansport, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT D. BOWEN, )
)
Appellant-Defendant, )
)
vs. ) No. 08A02-1206-CR-504
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CARROLL CIRCUIT COURT
The Honorable Donald E. Currie, Judge
Cause No. 08C01-1007-FB-8
February 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Robert D. Bowen (“Bowen”) was convicted after a jury trial of unlawful
possession of a firearm by a serious violent felon,1 a Class B felony, dealing in a schedule
IV controlled substance2 as a Class C felony, possession of a controlled substance 3 as a
Class D felony, and possession of marijuana4 as a Class A misdemeanor and was
sentenced to an aggregate term of fourteen years in the Department of Correction.
Bowen appeals and raises the following restated issues for our review:
I. Whether the trial court abused its discretion in finding that Bowen
was not indigent and therefore not appointing counsel to represent
Bowen until eight months prior to trial; and
II. Whether the trial court abused its discretion in sentencing Bowen to
consecutive sentences.
We affirm.
FACTS AND PROCEDURAL HISTORY
On June 30, 2010, Bowen’s daughter-in-law called the Delphi Police Department
and informed them she had observed Bowen and her husband smoking marijuana inside
Bowen’s appliance repair shop earlier that day. She also told the police that there were
several guns inside the shop and that she had previously seen Bowen holding a gun. The
police obtained a search warrant for Bowen’s shop and executed that warrant on July 2,
2010. Pursuant to that search, the police seized various items from the shop, including
1
See Ind. Code § 35-37-4-5.
2
See Ind. Code § 35-48-4-3.
3
See Ind. Code § 35-48-4-7.
4
See Ind. Code § 35-48-4-11.
2
guns, cash, an electronic scale, marijuana, and pills, which were later identified as
alprazolam, a schedule IV controlled substance. There were several individuals,
including Bowen and his son, present at the time the warrant was executed. Two of these
individuals had alprazolam pills in their pockets. When questioned by the police, Bowen
admitted that the shop and property were his, that he lived in a trailer located in a
building attached to the shop, and had keys to the shop. Tr. at 259-60. Bowen also
admitted that he knew the firearms were on his property and that no one was allowed on
the property without his knowledge. Id. at 260-61.
The State charged Bowen with unlawful possession of a firearm by a serious
violent felon, dealing in a schedule IV controlled substance, possession of a controlled
substance, two counts of receiving stolen property, and possession of marijuana. At
Bowen’s initial hearing, on July 3, 2010, Bowen informed the trial court that he wanted
to hire his own attorney. Id. at 13, 16. At that time, Bowen’s bond was set in the sum of
$50,000 property or surety plus $500 cash. On July 15, 2010, Senior Judge Kathy Smith
held a hearing regarding the appointment of counsel and appointed Patrick F. Manahan
(“Manahan”) as counsel for Bowen in this case. Manahan was later permitted, on
September 27, 2010, to withdraw as Bowen’s counsel. On July 26, 2010, the property
bond, pledging real estate owned by Bowen as security, was received by the clerk of the
trial court.
At the initial hearing for the amended information, held on October 20, 2010,
Bowen requested the appointment of counsel. The trial court questioned Bowen
regarding his financial situation, and determined that, because Bowen had real property
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with $50,000 in equity, he was not indigent, and the trial court refused to appoint a public
defender for Bowen. Id. at 22-24, Appellant’s App. at 47. At this hearing, Bowen also
filed a pro se motion to suppress.
On November 12, 2010, Bowen filed a motion to continue because he had not yet
been able to hire an attorney. At a hearing on February 23, 2011, the State informed the
trial court of the problems it was having dealing with Bowen because he did not have an
attorney and had not entered an appearance for himself in the case. Tr. at 26-27. Bowen
told the court he had contacted attorneys but had not yet been able to retain the services
of an attorney. Id. at 28. The trial court continued the proceedings. At a status hearing,
on April 26, 2011, Bowen again requested that the trial court appoint counsel to represent
him, but admitted to the trial court that his financial situation had not changed. Id. at 31.
Because Bowen had equity in the real property that he owned, the trial court again found
that he was not indigent and refused to appoint counsel. Id. at 31-32.
On May 13, 2011, the trial court held a hearing on Bowen’s motion to suppress.
Bowen again complained about not having appointed counsel, and the trial court
reaffirmed its ruling that Bowen was not indigent. Id. at 38-41. Because Bowen did not
present any evidence in support of his motion to suppress, the trial court denied the
motion. On June 2, 2011, the trial court granted Bowen’s motion to continue in order to
obtain counsel.
On August 23, 2011, the trial court held a hearing on the State’s motion to revoke
Bowen’s bond, and the State presented evidence that Bowen had been charged with a
new criminal offense. Bowen again appeared without counsel. The trial court granted
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the State’s motion and revoked Bowen’s bond. Bowen again requested that counsel be
appointed for trial, and the trial court again inquired into Bowen’s financial situation. No
discussion occurred regarding the real property owned by Bowen. At the conclusion of
the inquiry, the trial court found Bowen to be indigent and appointed Ian O’Keefe
(“O’Keefe”) to represent Bowen.
Prior to trial, the State dismissed one of the receiving stolen property counts. A
three-day jury trial began on April 23, 2011, with Bowen being represented by O’Keefe.
At the conclusion of the trial, the jury found Bowen not guilty of the remaining Class D
felony receiving stolen property count and guilty of the other charged offenses. At the
sentencing hearing, the trial court, after considering the pre-sentence investigation report
and the evidence and arguments presented at the hearing, imposed a sentence of ten years
for Bowen’s conviction for Class B felony unlawful possession of a firearm by a serious
violent felon, four years for his conviction for Class C felony dealing in a schedule IV
controlled substance, one-and-a-half years for his conviction for Class D felony
possession of a controlled substance, and one year for his conviction for Class A
misdemeanor possession of marijuana. The trial court ordered the sentences to be served
concurrently, except for the sentence for dealing in a schedule IV controlled substance,
which was ordered to be served consecutively to the sentence for unlawful possession of
a firearm by a serious violent felon, for a total of fourteen years. Bowen now appeals.
DISCUSSION AND DECISION
I. Appointment of Counsel
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In general, a trial court has discretion to determine whether a defendant is
indigent, and we are reluctant to override that discretion on appeal. Reese v. State, 953
N.E.2d 1207, 1210 (Ind. Ct. App. 2011) (citing Redmond v. State, 518 N.E.2d 1095, 1095
(Ind. 1988)). However, the trial court does not have the discretion to deny counsel to an
indigent defendant. Gilmore v. State, 953 N.E.2d 583, 587 (Ind. Ct. App. 2011) (citing
Graves v. State, 503 N.E.2d 1258, 1262 (Ind. Ct. App. 1987)).
Bowen argues that the trial court abused its discretion when it failed to find him
indigent and appoint counsel to represent him in the initial stages of his case. He
contends that these were critical stages of the trial proceedings, and the refusal to appoint
him counsel at those times constituted a denial of his right to counsel. Bowen claims that
he qualified for appointed counsel because he was indigent, and the assets he had were
not liquid and using them to obtain counsel could impose substantial hardship on himself
and his family. He further argues that, even if he was not indigent, the trial court did not
adequately establish that fact on the record because the trial court failed to engage in a
thorough examination of Bowen’s total financial picture.
Because we are dealing with such a fundamental constitutional right, the record in
each case must show that careful consideration commensurate with the right at stake has
been given to the defendant. Reese, 953 N.E.2d at 1210 (quoting Moore v. State, 273
Ind. 3, 7, 401 N.E.2d 676, 678 (1980)) (internal quotation marks omitted). The defendant
does not have to be totally without means to be entitled to counsel. Gilmore, 953 N.E.2d
at 587. If he legitimately lacks the financial resources to employ an attorney, without
imposing a substantial hardship on himself or his family, the court must appoint counsel
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to defend him. Id. The determination as to the defendant’s indigency is not to be made
on a superficial examination of income and ownership of property but must be based on
as thorough an examination of the defendant’s total financial picture as is practical. Id.The record must show that the determination of ability to pay includes a balancing of
assets against liabilities and a consideration of the amount of the defendant’s disposable
income or other resources reasonably available to him after the payment of his fixed or
certain obligations. Id.In the present case, Bowen initially informed the trial court that he intended to hire
a private attorney to represent him. At a subsequent hearing, Senior Judge Kathy Smith
appointed attorney Manahan to represent Bowen. However, Manahan was permitted to
withdraw his appearance, and at a hearing on October 20, 2010, Bowen requested that
counsel be appointed for him. At that time, the trial court held a hearing on Bowen’s
request for counsel.
The trial court questioned Bowen regarding his financial condition, and Bowen
stated he had not been employed since 2001. Tr. at 22. Bowen stated that his wife was
employed part-time and that she provided financial support for them. Id. at 22-23.
Bowen informed the trial court that the family received food stamps. Id. at 23. He also
admitted that he owned a rental property that brought in approximately $335 per month.
Id. Bowen also stated that he owned real property that had a value of at least $50,000,
although at that time the property was being used for Bowen’s bond. Id. Bowen told the
trial court that he had not yet talked with an attorney about his case. Id. The trial court
found that Bowen was not indigent, based on his ownership of real property that had a
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value of at least $50,000, and, therefore, refused to appoint counsel for him at public
expense. Id. at 23-24.
The trial court did not abuse its discretion in not finding Bowen to be indigent at
that time. Bowen’s ownership of real property, on its own, shows that he was not
indigent. See Gilmore, 953 N.E.2d at 588 (defendant’s social security and ownership of
real property, valued at $54,000, standing alone, could sustain finding that defendant was
not indigent). Additionally, we find it significant that Bowen failed to tell the trial court
about his appliance repair business and the income he derived from that business. Tr. at
295-96, 378; Appellant’s App. at 218. Therefore, Bowen’s statement to the trial court
that he had not been employed since 2001 is contradicted by the fact that he was self-
employed through his appliance repair business.
As to his later requests for counsel to be appointed, Bowen told the trial court that
his financial situation had not changed. Tr. at 31-32. At the hearing on his motion to
suppress, Bowen had failed to retain counsel and complained to the trial court about not
appointing him counsel. Id. at 38-39. The trial court explained to Bowen that his
ownership of real property demonstrated that he was not indigent and that it was his
choice to use the property to obtain an attorney or not. Id. at 39-40. The facts presented
to the trial court show that Bowen had the financial ability to hire an attorney but chose
not to because he was worried he may not be able to pay off any loan he took out on the
property. Id. at 39-40. Further, Bowen failed to inform the trial court of his income from
his appliance repair business. Under the facts of this case, the trial court did not abuse its
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discretion when it found Bowen was not indigent for the purpose of appointing counsel
for the motion to suppress hearing and prior to the hearing.
Later, when Bowen notified the trial court that he had spoken with an attorney and
was unable to reach any financial arrangement with the attorney, the trial court appointed
counsel for Bowen. Id. at 28, 54-60. Attorney O’Keefe entered an appearance for
Bowen on August 25, 2011, and Bowen’s trial was not held until April 23, 2012.
Bowen’s counsel had eight months to prepare for trial, and at trial, counsel made
objections to the admission of evidence based on Bowen’s previous motion to suppress.
Id. at 128-29, 254. Therefore, the fact that Bowen did not have counsel appointed when
he filed his motion to suppress did not negatively impact Bowen because he had counsel
at the time that the evidence was presented at trial, and his counsel objected to the
admission of the evidence at trial. We conclude that the trial court did not abuse its
discretion when it found, based on his ownership of real property with a value of at least
$50,000, he was not indigent for the purpose of appointing counsel. Bowen chose not to
use this property to obtain counsel, so he was without counsel at certain stages of his case
at his own choosing. When Bowen informed the trial court that he had attempted to
obtain private counsel, but was unable to do so, the trial court appointed counsel, and
Bowen was represented by counsel for the duration of his case. Under the circumstances
of this case, the trial court did not abuse its discretion, and Bowen was not denied his
right to counsel.
II. Sentencing
9
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Webb v. State, 941 N.E.2d 1082,
1088 (Ind. Ct. App. 2011) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007)), trans. denied. An
abuse of discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court. Id. A trial court must enter a sentencing statement
that includes reasonably detailed reasons for imposing a particular sentence. Id. The
purpose of this rule is to guard against arbitrary sentencing and to provide an adequate
basis for appellate review. Id. The decision to impose consecutive or concurrent
sentences is within the trial court’s sound discretion and is reviewed only for an abuse of
discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). A single
aggravating circumstance may support the imposition of consecutive sentences. Id.Bowen argues that the trial court abused its discretion when it imposed
consecutive sentences for two of his convictions. He contends that the trial court’s
sentencing statement was inadequate because it lacked reasonable details necessary to
safeguard against an arbitrary sentence. He also asserts that the trial court failed to
articulate a basis for imposing consecutive sentences.
Bowen is correct that a trial court is required to enter a reasonably detailed
sentencing statement that includes the reasons for imposing a certain sentence. Webb,
941 N.E.2d at 1088. A trial court must also articulate at least one aggravating
circumstance in order to impose consecutive sentences. Rhoiney v. State, 940 N.E.2d
841, 846 (Ind. Ct. App. 2010), trans. denied. When reviewing the sufficiency of the
10
sentencing statement, we examine both the trial court’s written and oral statements.
Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).
Here, the trial court did not specifically state, either in its written or oral
sentencing statement, any aggravating or mitigating circumstances, and the trial court
imposed the advisory sentence for all of the convictions. Therefore, this would make it
seem that the trial court found the aggravating and mitigating circumstances to be in
equipoise, which would generally prohibit the imposition of consecutive sentences. See
Lopez v. State, 869 N.E.2d 1254, 1258 (Ind. Ct. App. 2007) (when aggravating and
mitigating factors are in equipoise, “our Supreme Court has said that a trial court may not
impose consecutive sentences”), trans. denied. Additionally, when a trial court failed to
provide an explanation for imposing consecutive sentences, we may remand for
resentencing to impose concurrent sentences. Murrell v. State, 960 N.E.2d 854, 860 (Ind.
Ct. App. 2012).
However, we conclude that, in this case, the trial court’s sentencing statements
allow us to infer that at least one aggravating circumstance was considered by the trial
court in imposing the consecutive sentences. In both its written and oral sentencing
statements, the trial court stated that, in making it sentencing decision, it considered the
pre-sentence investigation report and the evidence and arguments presented during the
sentencing hearing. Tr. at 394; Appellant’s App. at 174. In the written sentencing
statement, the trial court also states it considered the sentencing criteria found in Indiana
Code section 35-38-1-7.1 in making its decision. Appellant’s App. at 174. The pre-
sentence investigation report detailed Bowen’s extensive criminal history, which spanned
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over thirty years and included multiple felony convictions, and lengthy substance abuse
history. Id. at 212-16, 219. A trial court is permitted to consider a defendant’s criminal
history as an aggravating circumstance. Ind. Code § 35-38-1-7.1(a)(2). We conclude
that based on the trial court’s written and oral sentencing statements, which detailed that
the trial court considered the pre-sentence investigation report in reaching its sentencing
decision, it can be inferred that the trial court imposed consecutive sentences based upon
Bowen’s extensive criminal history. We therefore find that the trial court did not abuse
its discretion in sentencing Bowen to consecutive sentences. However, we want to
remind the trial court that criminal defendants are entitled to understand the trial court’s
reasoning behind the defendants’ sentencing orders. We therefore caution the trial court
to give due consideration to the requirement that a sentencing statement should include
reasonably detailed reasons for imposing a particular sentence in future orders.
Affirmed.
MATHIAS, J., and CRONE, J., concur.
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