Tervarus L. Gary v. State of Indiana

FILED
Oct 10 2018, 8:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General
Elkhart, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tervarus L. Gary, October 10, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1101
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable David C.
Appellee-Plaintiff Bonfiglio, Judge
Trial Court Cause No.
20D06-1712-FD-7
Crone, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018 Page 1 of 12
Case Summary
[1] Tervarus L. Gary appeals the two-year sentence imposed by the trial court
following his guilty plea to class D felony nonsupport of a dependent child. He
asserts that his sentence is inappropriate in light of the nature of the offense and
his character. He further asserts that the trial court fundamentally erred in
allowing him to appear for his sentencing hearing via video conference without
first obtaining a written waiver of his right to be present. Concluding that Gary
has not met his burden to show that his sentence is inappropriate or that the
trial court committed fundamental error, we affirm.
Facts and Procedural History
[2] Gary has a daughter, T.R., who was born on September 28, 2009. After
paternity was established in 2010, a child support order was entered. In short,
between May 1, 2014, and April 4, 2018, Gary paid nothing toward his child
support obligation. Specifically, in April 2014, the trial court issued a writ of
attachment against Gary after he failed to appear at a hearing and show proof
of reimbursement to T.R.’s mother for mediation fees. At this time, he was
ordered to pay weekly child support of $31 as well as $9 per week toward
arrearages. In July 2015, Gary was found in contempt for failure to pay. In
July 2016, Gary was again found in contempt for failure to pay and was
ordered committed to the Elkhart County Correctional Facility (“ECCF”).
However, the trial court suspended the commitment on the condition that Gary
missed no payments between the contempt hearing and the next hearing set for
August 30, 2016. Gary failed to appear for the hearing, and a body attachment
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was entered. In October 2016, the trial court ordered Gary into civil
commitment to ECCF with a recommendation that he participate in Elkhart
County Community Corrections (“ECCC”). Gary’s child support arrearage at
that time totaled $6808. Gary began work release through ECCC in November
2016. By December 2016, ECCC requested a warrant against Gary due to
unacceptable conduct. As of December 2017, Gary’s child support arrearage
exceeded $8000. Gary was eventually terminated from work release in February
2018 after causing numerous disciplinary issues, and he was transferred to the
Elkhart County Jail.
[3] The State charged Gary with class D felony nonsupport of a dependent child
alleging that between May 1 and August 31, 2014, he failed to pay any support
for T.R. The trial court held a change of plea hearing on March 7, 2018, and
Gary appeared via video conference and pled guilty to his crime. On April 4,
2018, the trial court held a sentencing hearing. Gary again appeared via video
conference. The court imposed a two-year sentence minus earned credit time.
This appeal ensued.
Discussion and Decision
Section 1 – Gary has not met his burden to demonstrate that
his sentence is inappropriate.
[4] Gary claims that his two-year sentence is inappropriate and invites this Court to
reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may
revise a sentence authorized by statute if, after due consideration of the trial
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court’s decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. The question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.
Ct. App. 2007).
[5] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a class D felony is between six months and three years, with an advisory
sentence of one and one-half years. Ind. Code § 35-50-2-7(a). Here, the two-
year sentence imposed by the trial court is slightly above the advisory but well
below the maximum allowable by statute.
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[6] As for the nature of the offense, although Gary pled guilty to failing to support
T.R. between May 1 and August 31, 2014, his nonsupport of his daughter is not
simply an isolated occurrence confined to the current charge. His failure to pay
has spanned over four years and has resulted in a child support arrearage in
excess of $8000. Gary has not persuaded us that sentence revision is warranted
based on the nature of his offense.
[7] Regarding his character, we note that the character of the offender is found in
what we learn of the offender’s life and conduct. Croy v. State, 953 N.E.2d 660,
664 (Ind. Ct. App. 2011). Included in that assessment is a review of an
offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App.
2015), trans. denied (2016). Our review of the transcript of the sentencing
hearing reveals that the trial court tailored an appropriate sentence based on
Gary’s criminal history and his behavior during work release, and we think
rightfully so. At the relatively young age of thirty-one, Gary has an extensive
criminal history including eleven misdemeanor and two felony convictions.
Indeed, as recently as 2017, Gary was convicted of level 6 felony possession of
methamphetamine. The trial court has given him the past benefit of
participating in work release through community corrections so that he could
support his child, but rather than support T.R., he chose to start “raising hell”
and was terminated from the program. Appellant’s App. Vol. 2 at 47. Not only
does this behavior reflect negatively on Gary’s character, but it also resulted in
him no longer being a candidate for work release. Under the circumstances
presented, Gary has not met his burden to demonstrate that the two-year
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sentence imposed by the trial court is inappropriate in light of the nature of the
offense and his character.
Section 2 – Gary has not met his burden to demonstrate
fundamental error.
[8] Gary next contends that the trial court erred in allowing him to appear for his
sentencing hearing via video conference without first obtaining a written waiver
of his right to be present in person. Gary concedes that he did not object to this
procedure below. Thus, he argues that the error was fundamental.
[9] “Neither the United States Constitution nor the Indiana Constitution explicitly
or implicitly secure[s] to a defendant the right to be present at sentencing.” Cleff
v. State, 565 N.E.2d 1089, 1091 (Ind. Ct. App. 1991), trans. denied. Rather, this
nonconstitutional right is derived from Indiana Code Section 35-38-1-4(a),
which provides that criminal defendants “must be personally present at the time
sentence is pronounced.” Our supreme court has determined that personal
presence in this context means a “defendant’s actual physical presence” at
sentencing. Hawkins v. State, 982 N.E.2d 997, 1002 (Ind. 2013).
[10] However, Indiana Administrative Rule 14(A)(2)(c) provides that a trial court
“may use audio visual telecommunication to conduct ... [s]entencing hearings
... when the defendant has given a written waiver of his or her right to be
present in person and the prosecution has consented.” Accordingly, “a trial
court may conduct a sentencing hearing at which the defendant appears by
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video, but only after obtaining a written waiver of his right to be present and the
consent of the prosecution.” Hawkins, 982 N.E.2d at 1002-03.1
[11] In Hawkins, the defendant appeared at the sentencing hearing by video
conference without expressly waiving his right to be present in person. Like
Gary, the defendant in Hawkins failed to object. Because the supreme court was
remanding for a new trial on other grounds, the court specifically stated, “we
need not decide the impact of Hawkins’s failure to contemporaneously object or
weigh the impact of denying a defendant the right to be physically present for
sentencing under fundamental error analysis.” Id. at 1003. Still, the court
cautioned:
Going forward, though, we would expect to see what our rules
require reflected in the record, and would urge trial courts to be
cautious of using procedures—however efficient they may be—
without following all of the steps required to implement those
procedures in a way that is fair to all involved.
1
The Hawkins court noted that Indiana Code Section 35-38-1-4(a) is written “in such a way that it conveys
not only the defendant’s right to be present at sentencing, but also his obligation to be present.” Hawkins, 982
N.E.2d at 1003 n.4.
This is why the Administrative Rule turns not just on the defendant’s written waiver, but also on
the prosecution’s consent. Just as the defendant benefits at sentencing from being able to directly
view witness demeanor and present personal emotion in his own testimony, so too might the
State benefit—in pursuing a higher sentence—from presenting the defendant in person as
opposed to a more sterile video conference.
Id.
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Id. As this warning was not heeded in the instant case, we must determine
whether the trial court’s failure to obtain a written waiver from Gary or have
him physically present at sentencing constituted fundamental error.
[12] Fundamental error is an extremely narrow exception to the general rule that a
party’s failure to object at trial results in a waiver of the issue on appeal. Durden
v. State, 99 N.E.3d 645, 652 (Ind. 2018). To establish fundamental error, the
defendant faces the heavy burden of showing that the alleged error was so
prejudicial to his rights as to make a fair trial impossible. Ryan v. State, 9
N.E.3d 663, 668 (Ind. 2014). The defendant must show that, under the
circumstances, the error “constitute[d] clearly blatant violations of basic and
elementary principles of due process” and “present[ed] an undeniable and
substantial potential for harm.” Id. (quoting Benson v. State, 762 N.E.2d 748, 756
(Ind. 2002)).
[13] Gary has not met the heavy burden of establishing fundamental error. His
entire fundamental error argument is as follows:
In the present case, Gary’s due process rights under both the
Fourteenth Amendment of the U.S. Constitution and Article I,
Section 12 of the Indiana Constitution, as well as precepts of
fundamental fairness grounded in both constitutions were
violated when he was sentenced by video hearing when he had
not waived his right to be physically present and the state had not
consented to any waiver of right to be present.
Appellant’s Br. at 13. As we stated above, the right to be physically present
during sentencing is not a constitutional right, and from a basic due process
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standpoint, the right to be physically present during sentencing has long been
held not to be on par with the right to be physically present during the guilt-
determination phase. E.g., Cleff, 565 N.E.2d at 1091. While the trial court failed
to obtain a written waiver for the sentencing hearing, we conclude that such
error did not run afoul of underlying basic due process itself.
[14] In essence, Gary’s argument is that he would have had a winnable objection to
the sentencing had his trial counsel in fact objected. But fundamental error
requires more than just showing a winnable objection. The record establishes
that Gary was represented by counsel and had more than an adequate
opportunity to be both seen and heard at the sentencing hearing and to present
his argument, albeit via video conference. Unlike the dissent, we will not make
the leap from our supreme court's careful cautioning in Hawkins to the
conclusion that all irregularities are per se fundamental errors. Although we
disapprove of the trial court’s failure to follow proper procedure, we cannot say
that Gary’s sentencing via video conference absent a proper written waiver
constituted a clearly blatant violation of basic and elementary principles of due
process. Accordingly, Gary has not carried his burden to show fundamental
error on appeal.
[15] Affirmed.
Najam, J., concurs.
Pyle, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018 Page 9 of 12
IN THE
COURT OF APPEALS OF INDIANA
Tervarus L. Gary, Court of Appeals Case No.
18A-CR-1101
Appellant-Respondent,
v.
State of Indiana,
Appellee-Petitioner.
Pyle, Judge dissenting with opinion.
[16] I respectfully dissent from my colleagues’ opinion. As an initial matter, I
believe that the issue of Gary’s lack of physical presence at the sentencing
hearing should first be addressed. There is a lengthy history involving the
common law and statutory right requiring a defendant’s actual physical
presence at a sentencing hearing. The history is so compelling that I believe a
trial court may commit fundamental error when a sentencing hearing is
conducted without the defendant being physically present.
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[17] My colleagues ably point out that fundamental error is a substantial, blatant
violation of due process that also exposes the defendant to undeniable harm.
Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010). However, in my mind,
the question is, can the violation of a long established common law and
statutory right provide the basis for fundamental error?
[18] Indiana was admitted into the Union as the nineteenth state on December 11,
1816. THE NEW YORK PUBLIC LIBRARY DESK REFERENCE 693 (1989). As
early as 1852, a statute was passed requiring defendants to be physically present
at sentencing hearings. 2 R.S. 1852, Art. XII sec. 123 p. 378 (J.P. Chapman
ed., 1852 ed.). In addition, the United States Supreme Court has taken note of
the long established common law tradition requiring a defendant to be
“personally present before the court at the time of pronouncing sentence, . . . .”
Ball v. U.S., 140 U.S. 118, 131, 11 S.Ct. 761, 766, 35 L.Ed 377 (1891). Quoting
Justice Scholfield of the Illinois Supreme Court, the Supreme Court listed the
important purposes behind the requirement for personal presence at a
sentencing hearing as follows:
. . . that the defendant might be identified by the court as the real
party adjudged guilty; that he might have a chance to plead a
pardon, or move in arrest of judgment; that he might have an
opportunity to say why judgment should not be given against
him; and that the example of being brought up for the
animadversion of the court and the opening enunciation of
punishment might tend to deter others from the commission of
similar offenses.
Ball, 140 U.S. at 131 (citing Fielden v. People, 128 Ill 595, 21 N.E. 584 (Ill.
1889)). Notably, that same year, the Illinois Supreme Court found that failure
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to have a defendant present “was no ground for reversal in any case.” Id.(citing Gannon v. People, 127 Ill 507, 21 N.E. 525 (Ill. 1889)). However, the
Supreme Court concluded that “the great weight of authority is the other way.”
Id.[19] Our supreme court has noted that the right of a defendant to be physically
present at sentencing is well settled. Hawkins v. State, 982 N.E.2d 997 (Ind.
2013); Royal v. State. 272 Ind. 151, 154, 396 N.E.2d 390, 393 (1979). As we
have discussed above, this right may be as old as the great State of Indiana. For
this reason, I would respectfully submit that a trial court’s failure to follow such
a well-established law is a blatant violation of basic and elementary principles of
due process. In addition, failure to follow this settled law carries a significant
risk of prejudice to the defendant; an audio-visual link does not convey the
same emotion, meaning, and judicial import as personally appearing in court.
Cf. Love v. State, 61 N.E.3d 290 (Ind. Ct. App. 2016) (J. Pyle, dissenting) vacated
by Love v. State, 73 N.E.3d 693 (Ind. 2017). I am aware that for many trial
courts, use of an audio-visual link may be more efficient and preferable to
spending county funds to transport a defendant to court for sentencing.
However, the law must be honored. See Hawkins v. State, 982 N.E.3d 997 (Ind.
2013). As a result, I would reverse and remand for a new sentencing hearing at
which Gary is personally and physically present.
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