MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Mar 13 2017, 9:31 am
this Memorandum Decision shall not be
                                                                               CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
court except for the purpose of establishing                                    and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Lamarr T. Crittenden                                     Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Lamar T. Crittenden,                                     March 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1512-CR-2183
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-0810-FA-227401



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017              Page 1 of 16
[1]   Following a bench trial, Lamar T. Crittenden was convicted of one count of

      child molesting as a Class A felony and one count of child molesting as a Class

      C felony. Crittenden was originally sentenced to an aggregate term of thirty-

      five years, with five years suspended. Crittenden’s convictions and sentence

      were affirmed on direct appeal. See Crittenden v. State, No. 49A05-0906-CR-355

      (Ind. Ct. App. Jan. 21, 2010), trans. denied (Crittenden I). Crittenden, pro se,

      filed a petition for post-conviction relief arguing, in part, that his trial and

      appellate counsel rendered ineffective assistance with regard to sentencing. The

      post-conviction court agreed and remanded for a new sentencing hearing.

      Crittenden appealed, challenging several of the post-conviction court’s

      procedural rulings as well as its denial of his remaining claims of ineffective

      assistance of trial and appellate counsel. In a memorandum decision, this court

      affirmed the post-conviction court’s rulings and decision. Crittenden v. State,

      49A05-1405-PC-227 (Ind. Ct. App. June 30, 2015) (Crittenden II).


[2]   At the resentencing hearing, the trial court again sentenced Crittenden to an

      aggregate term of thirty-five years, with five years suspended. Crittenden, pro

      se, appeals, challenging the sentence imposed on several grounds:


              1.      Did the trial court have subject matter jurisdiction?


              2.      Did the trial court properly sentence Crittenden?


              3.      Did the trial court properly classify Crittenden as a
                      sexually violent predator?



      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 2 of 16
              4.      Did Crittenden receive ineffective assistance of counsel at
                      his resentencing hearing?


              5.      Did the trial court properly amend the sentence imposed?


[3]   We affirm.


                                       Facts & Procedural History


[4]   The facts underlying Crittenden’s convictions were set forth by this court on

      direct appeal as follows:

              In 2006, Crittenden began cohabiting with Shontae Matlock and
              her daughter D.M., born February 8, 1999, on Denny Street in
              Indianapolis. On one occasion during 2007 or 2008, Crittenden
              entered D.M.’s bedroom while she was sleeping and ordered her
              to perform fellatio on him. When she refused, Crittenden placed
              his hand inside her vagina and moved it around. He then
              performed anal intercourse on her. Crittenden admonished
              D.M. not to tell anyone about the incident.


              Nevertheless, D.M. told her mother, who refused to believe her
              allegations. On May 11, 2008, D.M. reported the incident to her
              aunt, Lawanna Smith, who took her to the hospital for a medical
              examination.


      Crittenden I, slip op. at 1 (footnote omitted). Crittenden was charged with two

      counts of Class A felony child molesting and two counts of Class C felony child

      molesting. Following a bench trial, the trial court found him guilty of one

      count of each. The trial court subsequently sentenced Crittenden to thirty-five

      years with five years suspended for the Class A felony conviction and to a


      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 3 of 16
      concurrent, six-year term for the Class C felony conviction. This sentence was

      set aside upon post-conviction review and the matter was remanded for a new

      sentencing hearing.


[5]   A resentencing hearing was held on November 18, 2015, during which the trial

      court incorporated evidence presented during the first sentencing hearing. After

      the trial court received additional evidence and testimony from Crittenden, the

      trial court sentenced him to the same sentence previously imposed. Crittenden

      now appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision


                                                 1. Jurisdiction


[6]   Crittenden first argues that the trial court did not have subject matter

      jurisdiction because the charging information was not properly filed as it was

      not file-stamped by the clerk of the court. Relying on Emmons v. State, 847

      N.E.2d 1035 (Ind. Ct. App. 2006), he asserts that his convictions are therefore

      void for lack of jurisdiction.


[7]   In Emmons, the defendant moved to dismiss the charges against him because the

      charging information was not properly file-stamped. The trial court granted the

      defendant’s motion to dismiss at the bench trial prior to the presentation of

      evidence. Upon retrial, Emmons moved to dismiss the charges on double

      jeopardy grounds, which the trial court denied. We affirmed the trial court’s

      denial of the motion, explaining in an alternative analysis:


      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 4 of 16
        A defendant may also be retried if the prior proceeding was
        terminated because a legal defect in the proceedings would make
        any resulting judgment reversible as a matter of law. . . . We
        have explained:


                [A] criminal action can be commenced only in the manner
                provided by law, and that it is the filing of the accusation
                in lawful form that invokes the jurisdiction of the court in
                the particular case. It is a universal principle as old as the
                law that the proceedings of a court without jurisdiction are
                a nullity and its judgment void. There can be no
                conviction or punishment for crime, except on accusation
                made in the manner prescribed by law . . . .


        Pease v. State, 74 Ind.App. 572, 576, 129 N.E. 337, 339 (1921)
        (internal citations omitted) . . . .


        The original information against Emmons had not been file-
        stamped and therefore was not properly filed under Ind. Code §
        35-34-1-1. As a result, the trial court did not have jurisdiction
        over Emmons and any judgment rendered would have been void
        for lack of jurisdiction . . . .


Emmons, 847 N.E.2d at 1038-39. The court noted, however, that failure to

properly file-stamp the charging information constituted a clerical error that

could have been corrected by a nunc pro tunc entry. Id. at 1038 (citing Owens v.

State, 263 Ind. 487, 495, 333 N.E.2d 745, 749 (1975)). Indeed, the court

indicated that “[t]he better course of action . . . would be a nunc pro tunc entry

to show the filing of the information.” Id. at 1037 n.6




Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 5 of 16
[8]    Unlike the defendant in Emmons, Crittenden did not raise the jurisdictional

       defect before the trial court. If he had, the clerical error could have easily been

       corrected by a nunc pro tunc entry. Moreover, even assuming that the clerical

       error constituted a jurisdictional defect, it was at most a defect in personal

       jurisdiction, not subject matter jurisdiction.


[9]    “The question of subject matter jurisdiction entails a determination of whether

       a court has jurisdiction over the general class of actions to which a particular

       case belongs.” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006) (citing Troxel v.

       Troxel, 737 N.E.2d 745, 749 (Ind. 2000)). As our Supreme Court noted, “[r]eal

       jurisdictional problems would be, say, a juvenile delinquency adjudication

       entered in a small claims court, or a judgment rendered without any service of

       process.” Id. (emphasis in original). Our Supreme Court clarified that

       “characterizing other sorts of procedural defects as ‘jursidictional’

       misapprehends the concepts [of personal and subject matter jurisdiction].” Id.

       In K.S., the Court thus held that even if the juvenile court had not explicitly

       approved the filing of a delinquency petition, as was required by statute, the

       juvenile court was not divested of subject matter jurisdiction in the matter

       because juvenile courts have jurisdiction over delinquency proceedings. Id.


[10]   Similarly, here, even if the trial court clerk neglected to place a file stamp on the

       charging information as required by I.C. § 35-34-1-1, such clerical error would

       not change the fact that the trial court had subject matter jurisdiction over the

       criminal case filed against Crittenden. Indeed, the Marion Superior Court has

       “original and concurrent jurisdiction in all criminal cases allegedly committed

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 6 of 16
       in Marion County.” Taylor-Bey v. State, 53 N.E.3d 1230, 1231 (Ind. Ct. App.

       2016). Crittenden’s argument that the trial court was without subject matter

       jurisdiction fails.


                                                   2. Sentencing


[11]   Crittenden argues that the trial court abused its discretion when it sentenced

       him to an aggravated sentence using improper aggravating factors. Sentencing

       decisions are within the sound discretion of the trial court and are reviewed on

       appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion

       occurs if the decision is “clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” Id. A trial court abuses its discretion by


               (1) failing to enter a sentencing statement, (2) entering a
               sentencing statement that explains reasons for imposing the
               sentence but the record does not support the reasons, (3) the
               sentencing statement omits reasons that are clearly supported by
               the record and advanced for consideration, or (4) the reasons
               given in the sentencing statement are improper as a matter of
               law.


       Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).


                                                 Age of Victim


[12]   Crittenden first argues that the trial court inappropriately relied upon the age of

       the victim as an aggravating factor because age is a material element of the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 7 of 16
       crime of child molesting. Crittenden’s crimes required that the victim be under

       fourteen years of age. See Ind. Code § 35-42-4-3. D.M. was between the ages of

       seven and nine when the molestations occurred. During the sentencing

       hearing, the trial court found as an aggravating circumstance that “[t]his was a

       very young child that [Crittenden] had been in a position of care, custody and

       control over.” Transcript at 211.


[13]   This court has held that, “[w]hile the victim’s age may not constitute an

       aggravating circumstance to support an enhanced sentence when it also

       comprises a material element of the crime for which conviction was obtained,

       the trial court may properly consider particularized circumstances of the factual

       elements as aggravating factors.” Mallory v. State, 563 N.E.2d 640, 647 (Ind. Ct.

       App. 1990). To the extent the trial court considered the age of the victim as an

       aggravating circumstance, it properly did so in light of the particular

       circumstances, i.e., the very young age of the victim. See Kien v. State, 782

       N.E.2d 398, 414 (holding that trial court properly considered age of the victim

       in a child molesting case as an aggravating circumstance where court noted that

       “child is extremely vulnerable to sexual predation because of her ‘tender

       years’”).


                                                Victim Impact


[14]   Crittenden argues that the trial court improperly considered the impact of the

       crime on the victim as an aggravating circumstance because such had already

       been factored into the advisory sentence for the level of the crime committed.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 8 of 16
       A trial court may consider as an aggravator whether “[t]he harm, injury, loss, or

       damage suffered by the victim . . . was . . . significant[] and . . . greater than the

       elements necessary to prove the commission of the offense. Ind. Code § 35-38-

       1-7.1(a)(1).


[15]   Here, there was evidence that D.M. suffered significant behavioral issues as a

       result of the molestation and began acting out sexually with other children and

       with herself. D.M.’s aunt testified that D.M. began playing with dolls in a

       sexual manner and also “tried to hump the neighbor’s kids.” Transcript at 94.

       Because of D.M.’s behavioral issues, her aunt turned her over to foster care

       because she was not able to care for her. Eventually, D.M. was placed in a

       mental hospital. D.M. continues to face issues relating to the molestation by

       Crittenden. At the first sentencing hearing, the trial court found that the harm

       to D.M. was “significant and certainly greater than the elements that are

       necessary to prove the offense.” Transcript at 156.1 At the second sentencing

       hearing, the court again noted that “[t]he impact on the victim was just

       incredibly lasting. She’s lost her mother, she’s lost so much. Spent time in a

       mental hospital trying to cope with the memories” of what Crittenden did to

       her. Id. at 210. The court further observed that D.M. was devastated and

       scared by having to testify and be in Crittenden’s presence. Based on the




       1
         The original transcript of the trial and sentencing hearing were included in the record on appeal. These
       same transcripts were included in the “Transcript of the Record” in this appeal, which also includes the
       transcript of the second sentencing hearing. For simplicity, our citations to the Transcript will refer to the
       “Transcript of Record.”

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017                Page 9 of 16
       foregoing, we cannot say that the trial court erred in finding the serious and

       lasting nature of the impact on the victim as an aggravating factor.


                                               Position of Trust


[16]   Crittenden argues that the trial court erred in finding as an aggravating factor

       that he violated a position of trust because such “is already inherently included

       in the presumptive [sic] sentence as an element of the offense.” Appellant’s Brief

       at 18. Contrary to Crittenden’s argument, “Indiana courts have long held that

       the violation of a position of trust is a valid aggravating factor.” Stout v. State,

       834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied. The sad fact that adults

       in positions of trust are often the perpetrators of these crimes does not change

       this result. Id. (disagreeing with defendant’s argument that the violation of a

       position of trust with one’s victim should not be an aggravator in a case of child

       molesting because acts of molestation are commonly committed by stepfathers).

       Crittenden does not challenge that he was in a position of trust with D.M.

       Indeed, Crittenden was D.M.’s mother’s boyfriend and he lived in the home

       with D.M. and her mother. The trial court did not improperly consider as an

       aggravating circumstance that Crittenden was in a position of trust with his

       victim.


                                               Criminal History


[17]   Crittenden argues that the trial court should not have cited his criminal history

       as an aggravating circumstance because his one prior conviction for theft “bears

       no relation to the crime for which the sentence enhancement was applied.”

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 10 of 16
       Appellant’s Brief at 20. A defendant’s criminal history is a proper aggravating

       factor; the significance of which “varies based on the gravity, nature and

       number of prior offenses as they relate to the current offense.” Wooley v. State,

       716 N.E.2d 919, 929 n.4 (Ind. 1999).


[18]   With regard to Crittenden’s criminal history, the trial court acknowledged that

       he had a prior conviction for Class D felony theft in 2004 and that he violated

       his probation. The trial court described such as “very minimal” and indicated

       that it gave it “very little weight.” Transcript at 212. The trial court’s

       consideration of such was not error. To the extent Crittenden’s claim is that the

       trial court afforded too much weight to his criminal history, such claims are no

       longer subject to appellate review. Anglemyer, 868 N.E.2d at 491.


                                                Rehabilitation


[19]   Crittenden argues that the trial court abused its discretion by failing to explain

       how an enhanced sentence furthered his rehabilitation. The trial court,

       however, is not required to provide such an explanation where its sentencing

       statement sufficiently demonstrates that it evaluated the mitigating and

       aggravating circumstances. See Kile v. State, 729 N.E.2d 211, 215 (Ind. Ct. App.

       2000) (citing Crawley v. State, 677 N.E.2d 520, 523 (Ind. 1997)). Here, the trial

       court explained its evaluation of the circumstances impacting the sentence.


                                           Maintaining Innocence




       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 11 of 16
[20]   Crittenden argues that the trial court “abused its discretion when it based the

       outcome of [his] sentence on [him] admitting or denying guilt.” Appellant’s Brief

       at 22. In support of his argument, Crittenden directs us to a portion of the trial

       court’s sentencing statement wherein the court stated in response to

       Crittenden’s request that the court consider placing him in community

       corrections or an additional five years of probation:


                One of the things that would matter a great deal to me would be
                your participation in counseling while you are at the DOC.
                Now, that may require admission, I don’t know. If that – I don’t
                know if you can get into the sex offender counseling at the DOC
                without admitting the offense. I don’t know that. Perhaps you
                can. But that’s one of the things that would move me a long
                ways down the road when you get closer to the end of your
                sentence. I might, might reconsider letting you come out for the
                last couple of years or so onto home detention.


       Transcript at 216. Crittenden maintains that the trial court’s statement shows

       that the trial court is “trying to compel [him] to accept responsibility for a crime

       that he maintains his innocence to . . ., so he could possibly receive the benefit

       of a lighter sentence.” Appellant’s Brief at 22.


[21]   Contrary to Crittenden’s claim,2 the trial court did not consider Crittenden’s

       possible participation in counseling as weighing on the sentence imposed. The

       trial court’s statement came after the trial court pronounced the sentence and




       2
         Crittenden cites to Ashby v. State, 904 N.E.2d at 361 (Ind. Ct. App. 2009) in support of his argument. Upon
       review, we find Ashby to be inapposite.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017           Page 12 of 16
       was in response to Crittenden’s request that the court consider placing him in

       community corrections or an additional five years of probation. The trial

       court’s sentencing decision was not based on him admitting or denying guilt.

       The trial court did not abuse its discretion.


                                         3. Sexually Violent Predator


[22]   Crittenden argues that although the trial court never specifically found that he

       was a sexually violent predator, a notation in the abstract of judgment was to

       that effect. Crittenden is referring to the trial court’s statement in the comment

       section of the abstract of judgment in which the court noted “NO CONTACT

       ORDER ISSUED: SEE STATE’S REGISTRY.” Appellant’s Second Appendix

       Volume 2 at 13. Crittenden maintains that with this notation, the court was

       informing him to follow the State’s sex offender laws. Crittenden asserts that if

       required to register as a sexually violent predator under the law as it exists

       today, such would constitute an ex post facto violation.


[23]   We do not agree with Crittenden’s interpretation of the trial court’s notation in

       the abstract of judgment. Rather, as the State asserts, we find that the reference

       to “SEE STATE’S REGISTRY” is a reference to the registry for no-contact

       orders. See http://www.in.gov/judiciary/admin/2654.htm (Indiana’s

       Protection Order Registry). There has been no determination as to Crittenden’s

       status upon his release from incarceration and Crittenden has not been notified

       that he is required to register as a sexually violent predator. Thus, Crittenden’s




       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 13 of 16
       claim that the trial court improperly classified him as a sexually violent predator

       in violation of the ex post facto clause fails.


                                           4. Ineffective Assistance


[24]   Crittenden argues that he received ineffective assistance of counsel during his

       resentencing hearing. A petitioner will prevail on a claim of ineffective

       assistance of counsel only upon a showing that counsel’s performance fell

       below an objective standard of reasonableness and that the deficient

       performance prejudiced the petitioner. Bethea v. State, 983 N.E.2d 1134, 1138

       (Ind. 2013). To satisfy the first element, the petitioner must demonstrate

       deficient performance, which is “representation that fell below an objective

       standard of reasonableness, committing errors so serious that the defendant did

       not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting

       McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second

       element, the petitioner must show prejudice, which is “a reasonable probability

       that, but for counsel’s errors, the result of the proceeding would have been

       different.” Id. at 1139. “A reasonable probability is one that is sufficient to

       undermine confidence in the outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147

       (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Failure

       to satisfy either element will cause an ineffectiveness claim to fail. Carrillo v.

       State, 982 N.E.2d 461, 464 (Ind. Ct. App. 2013).


[25]   Crittenden argues that his counsel at the resentencing hearing was ineffective

       because she failed to object on grounds that the trial court did not have


       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 14 of 16
       jurisdiction. This claim is bared by res judicata as Crittenden presented

       essentially this same argument in his post-conviction appeal. See Holmes v. State,

       728 N.E.2d 164, 168 (Ind. 2000) (“The doctrine of res judicata prevents the

       repetitious litigation of that which is essentially the same dispute.”). In

       Crittenden II, this court affirmed the post-conviction court’s determination that

       Crittenden had failed to prove prejudice resulting from counsel’s failure to file a

       motion to dismiss the charging information because it lacked a file stamp. Slip

       op. at 10.


[26]   Furthermore, as we discussed supra, the trial court had subject-matter

       jurisdiction regardless of any mistake made by the trial court clerk in file-

       stamping the charges. Thus, counsel could not have been ineffective for failing

       to argue lack of jurisdiction. Crittenden likewise cannot prove prejudice

       because had his trial counsel objected to the lack of a file-stamp, the court could

       have properly made a nunc pro tunc entry to correct the clerical error. See

       Owens; Emmons, 847 N.E.2d at 1037-39. Crittenden’s claim of ineffective

       assistance of counsel fails.


                                          5. Sentencing Amendment


[27]   Crittenden argues that the trial court abused its discretion when it amended his

       sentence without him or his counsel being present. Crittenden was resentenced

       on November 18, 2015. The basis of Crittenden’s argument appears to stem

       from a notation in the chronological case summary to an amended sentence.

       Crittenden, however, does not identify how his sentence was amended.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017   Page 15 of 16
[28]   We note that in the record before us, there are two sentencing orders, one dated

       November 18, 2015, and the other dated November 24, 2015. The sentencing

       orders are essentially identical with one exception being an additional notation

       on the November 24, 2015 order that the original date of sentencing was May

       26, 2009. Likewise, the record contains two virtually identical abstracts of

       judgments bearing the same dates as the sentencing orders. On the November

       18 abstract of judgment, there is a handwritten notation regarding the original

       sentencing date. This notation is typed on the November 24 abstract. There is

       nothing that indicates that the trial court amended Crittenden’s sentence. Thus,

       Crittenden’s claim of an improper amendment to his sentence fails.


[29]   Judgment affirmed.


[30]   Riley, J. and Crone, J., concur.




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