MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                        Mar 03 2017, 6:29 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
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Gentner,                                            March 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1609-CR-2120
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1511-F5-63



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017      Page 1 of 10
                                          Case Summary
[1]   Gary Gentner (“Gentner”) was convicted after a jury trial of Operating a Motor

      Vehicle while Privileges Are Forfeited for Life, a Level 5 felony, 1 and Resisting

      Law Enforcement, as a Class A misdemeanor.2 The trial court sentenced

      Gentner to an aggregate term of imprisonment of six years. He now appeals.


[2]   We affirm.



                                                   Issues
[3]   Gentner raises two issues for our review. We restate these as:

                    I.     Whether the trial court abused its discretion when it
                           proceeded with trial and sentencing with Gentner in
                           absentia; and


                   II.     Whether the sentence imposed was inappropriate under
                           Appellate Rule 7(B).


                                 Facts and Procedural History
[4]   In 2005, Gentner was convicted of Operating a Vehicle as a Habitual Traffic

      Violator, as a result of which his driving privileges were forfeited for life in the

      State of Indiana. (App’x Vol. 2 at 105.)




      1
          Ind. Code § 9-30-10-17.
      2
          I.C. § 35-44.1-3-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 2 of 10
[5]   On the night of November 22, 2015, Officer Austin Schutter (“Officer

      Schutter”), of the Lafayette Police Department, observed in operation on a road

      a silver Buick with North Dakota plates that he knew to be registered to

      Gentner. Officer Schutter was en route to a dispatched call, and reported

      information concerning the vehicle to police dispatch; he then proceeded on to

      the other call.


[6]   Police dispatch notified Officer Alexander Feistel (“Officer Feistel”) of

      Gentner’s vehicle and where it was being operated. Officer Feistel proceeded to

      the location, observed the vehicle in operation, and ran the North Dakota

      license plate through a Bureau of Motor Vehicles (“BMV”) database. The

      database records indicated that the license plate belonged to a Chevrolet

      Suburban, not the silver Buick to which the plate had been affixed. Officer

      Feistel also obtained the BMV record for Gentner. Officer Feistel then initiated

      a traffic stop.


[7]   The silver Buick stopped and, before Officer Feistel could exit his own vehicle,

      Gentner had opened the driver’s door of the Buick, gotten out of the car, and

      stood looking squarely at Officer Feistel’s police car. Having seen Gentner’s

      BMV photograph, Officer Feistel immediately recognized Gentner, and,

      quickly getting out of the police car, Office Feistel instructed Gentner to sit back

      down in the Buick.


[8]   Rather than comply with this instruction, Gentner instead began to flee Officer

      Feistel on foot. Officer Feistel pursued Gentner through the neighborhood in


      Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 3 of 10
       which the traffic stop had been initiated until Gentner proceeded down an alley.

       Eventually, Gentner encountered a fence. Officer Feistel caught up and,

       concerned for his safety and seeking to end the pursuit, tackled Gentner to the

       ground, handcuffed him, and placed him under arrest.


[9]    On November 23, 2015, the State charged Gentner with Operating a Motor

       Vehicle while Privileges Are Forfeited for Life and Resisting Law Enforcement.

       Gentner was subsequently released on bond.


[10]   On March 10, 2016, a pretrial conference was conducted, during which the trial

       court announced a trial date of May 31, 2016, and a final pretrial conference

       date of May 13, 2016. On April 7, 2016, the trial court rescheduled the jury

       trial to June 1, but left the pretrial conference scheduled for May 13. Gentner’s

       counsel left a voicemail for Gentner in advance of the pretrial conference, but

       Gentner did not appear for the conference. The trial court then revoked

       Gentner’s bond and issued a warrant for Gentner’s arrest.


[11]   Gentner’s counsel again left a message for Gentner notifying him of the trial

       date. On June 1, 2016, a trial was conducted; Gentner did not appear for the

       trial. Gentner’s counsel moved for a continuance, which the trial court denied.

       Gentner was tried in absentia, and the jury found him guilty as charged. On

       July 22, 2016, a sentencing hearing was conducted, again with Gentner in

       absentia. The court entered judgments of conviction against Gentner and

       sentenced him to an aggregate sentence of six years: a six-year term of

       imprisonment for Operating a Motor Vehicle while Privileges Are Forfeited for


       Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 4 of 10
       Life, and a one-year term of imprisonment for Resisting Law Enforcement,

       with the sentences run concurrently.


[12]   On August 3, 2016, police apprehended Gentner. On August 18, 2016,

       Gentner appeared in front of the trial court and requested appellate counsel.


[13]   This appeal ensued.



                                 Discussion and Decision
                                            Trial In Absentia
[14]   In this appeal, Gentner first argues that the trial court abused its discretion

       when it conducted his trial in absentia. The United States Constitution and the

       Indiana Constitution both afford defendants in a criminal proceeding the right

       to be present at all stages of the trial. U.S. Const. amend. VI; Ind. Const. art. 1,

       § 13. If a defendant knowingly and voluntarily waives that right, however trial

       may occur in absentia. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007). As the

       Indiana Supreme Court has stated:


               When a defendant fails to appear for trial and fails to notify the
               trial court or provide it with an explanation of his absence, the
               trial court may conclude that defendant’s absence is knowing and
               voluntary and proceed with trial when there is evidence that the
               defendant knew of his scheduled trial date.


       Id. (quoting Freeman v. State, 541 N.E.2d 533, 535 (Ind. 1989)).




       Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 5 of 10
[15]   “The best evidence that a defendant knowingly and voluntarily waived his or

       her right to be present at trial is ‘the defendant’s presence in court on the day

       the matter is set for trial.’” Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind.

       1997). Thus, when a defendant knows of the trial date but fails to appear, the

       trial court may presume that the defendant knowingly and voluntarily waived

       the right to be present at the trial. Brown v. State, 839 N.E.2d 225, 227 (Ind. Ct.

       App. 2005), trans. denied. However, “waiver can also be implied when a

       defendant is voluntarily absent from the trial.” Hagenmeyer v. State, 683 N.E.2d

       629, 630 (Ind. Ct. App. 1997) (citing James v. State, 613 N.E.2d 15, 24 (Ind.

       1993)). Further, “a defendant who has been tried in absentia ‘must be afforded

       an opportunity to explain his absence and thereby rebut the initial presumption

       of waiver.’” Brown, 839 N.E.2d at 227. Upon appellate review, we look to the

       entire record to determine whether waiver of the right to be present at trial was

       voluntary, knowing, and intelligent. Id. at 228.


[16]   Here, Gentner, who had posted bond, attended a pretrial conference on March

       4, 2016. During that conference, a final pretrial conference was set for May 13,

       2016, and a jury trial was set for May 31, 2016. Gentner was ordered at the

       March 4, 2016 conference to appear in person at both the May 13, 2016

       conference and the May 31, 2016 trial.


[17]   On April 7, 2016, the trial court issued an order rescheduling the May 31, 2016

       trial by postponing it for one day—to June 1, 2016. The order reiterated the

       court’s instruction for Gentner to appear in person at both the May 13, 2016

       pretrial conference, which had not been rescheduled, and the trial.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 6 of 10
[18]   Gentner failed to appear at the May 13, 2016 conference, and the trial court

       issued a warrant for Gentner’s arrest. The court also reaffirmed the June 1,

       2016 trial date. Counsel for Gentner filed an affidavit with the court averring

       that he had attempted to contact Gentner by phone and was unable to leave a

       voicemail message, but left a message with “a close associate” of Gentner and

       was unable to confirm whether that message had been passed along. (App’x

       Vol. 2 at 33.)


[19]   Ultimately, Gentner did not appear at trial, which was conducted in his

       absence. Gentner was eventually apprehended on August 3, 2016, and Gentner

       appeared in court on August 18, 2016. The trial court reviewed the sentencing

       order with Gentner at that time. Gentner requested appointment of appellate

       counsel, but the record is silent as to whether Gentner provided any explanation

       for his absence. There are no additional filings reflected on the trial court’s

       docket that suggest any supplemental information concerning Gentner’s

       absence was provided. On appeal, Gentner acknowledges that the record is

       silent on that point and offers no explanation for his absence.


[20]   Simply put, Gentner failed to attend a pretrial conference that he had been

       directed to attend, and evaded apprehension from that point until his arrest in

       August 2016—a period of time lasting more than two months. The record

       discloses that Gentner was afforded a hearing after his arrest, but he apparently

       provided no explanation for his absence. The day of trial, Gentner’s trial

       counsel requested a continuance, but was unable to offer any grounds other

       than Gentner’s absence. Gentner has an extensive history of interaction with

       Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 7 of 10
       police and the courts in California, Washington, North Dakota, and Indiana.

       Thus, even without a precise explanation from Gentner for his absence, the

       record, viewed in its entirety, supports a conclusion that Gentner’s absence

       from trial was voluntary, knowing, and intelligent. We accordingly find no

       abuse of discretion in the trial court’s denial of the motion to continue to the

       trial and to conduct the trial with Gentner in absentia.


                                          Inappropriateness
[21]   Gentner’s other contention on appeal is that his sentence was inappropriate and

       requires revision under Appellate Rule 7(B). The authority granted to this

       Court by Article 7, § 6 of the Indiana Constitution permitting appellate review

       and revision of criminal sentences is implemented through Appellate Rule 7(B),

       which provides: “The Court may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, the Court finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender.” Under this rule, and as interpreted by case law, appellate courts may

       revise a sentence after due consideration of the trial court’s decision, if the

       sentence is found to be inappropriate in light of the nature of the offense and the

       character of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.

       2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of

       such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[22]   Here, Gentner was convicted of one count each of a Level 5 felony and a Class

       A misdemeanor. For Operating a Motor Vehicle while Privileges Are Forfeited


       Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 8 of 10
       for Life, a Level 5 felony, Gentner faced a sentencing range of one to six years

       imprisonment, with an advisory sentence of three years. I.C. § 35-50-2-6(b).

       For Resisting Law Enforcement, a Class A misdemeanor, Gentner faced a

       sentence of up to one year of imprisonment. I.C. § 35-50-3-2. The trial court

       sentenced Gentner to the maximum terms of imprisonment for each, and ran

       the sentences concurrent with one another, yielding an aggregate term of

       imprisonment of six years.


[23]   Looking to the nature of Gentner’s offenses, we observe nothing particularly

       remarkable about the nature of his offense of Operating a Motor Vehicle while

       Privileges are Forfeited for Life. As to his offense of Resisting Law

       Enforcement, Gentner caused Officer Feistel to engage in an extended foot-

       chase down the middle of a public road and through several yards, leaving three

       passengers in the vehicle and potentially subjecting Officer Feistel to danger

       from one of the vehicle’s occupants. Moreover, Gentner’s conduct suggests

       that he intended to flee as soon as the traffic stop occurred, as Gentner had

       gotten out of his car before Officer Feistel had an opportunity to open the door

       to his police car.


[24]   With respect to his character, our review of the presentence investigation report

       discloses that Gentner has a long history of criminal activity in California,

       Washington, Indiana, and North Dakota. Gentner’s criminal history began in

       1989 and continued unabated into 2016. The vast majority of his convictions

       arose from substance- and vehicle-related offenses. These gradually escalated

       from misdemeanor- to felony-level offenses. By 2005, Gentner’s driving

       Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 9 of 10
       privileges had been forfeited for life, but he continued to drive even after that

       point, accruing multiple convictions in North Dakota, Washington, and

       Indiana for driving and substance-related offenses. Gentner was arrested on

       February 7, 2016—during the pendency of the charges in this case—for

       Operating a Motor Vehicle while Privileges Are Forfeited for Life in Carroll

       County. Gentner has a history of failing to appear for court dates, and has

       previously been held in contempt of court for such conduct. Gentner has also

       had his probation revoked on several occasions.


[25]   Simply put, Gentner’s extensive criminal history and continued commission of

       motor vehicle offenses, together with his failure to benefit from prior

       opportunities for rehabilitation, speak ill of his character, and do nothing to

       lighten the gravity of the offenses here. Gentner has not persuaded us that his

       sentence in this case was inappropriate.



                                               Conclusion
[26]   The trial court did not abuse its discretion when it tried Gentner in absentia.

       Gentner’s sentence is not inappropriate.


[27]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2120 | March 3, 2017   Page 10 of 10
