Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MARK OLIVERO                                        GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    CYNTHIA L. PLOUGHE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                                  Apr 09 2013, 9:23 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

TERMAINE T. FIELDS,                                 )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 02A03-1206-CR-278
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D05-1107-FD-929


                                          April 9, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Termaine T. Fields was convicted, after a jury trial, of Class D felony residential

entry1 and Class A misdemeanor domestic battery,2 and he was found to be an habitual

offender.3 His appeal raises two issues:

    1. Whether the trial court committed reversible error because it did not conduct a formal
       initial hearing on the habitual offender count, and

    2. Whether the trial court abused its discretion because it did not find certain mitigating
       factors when sentencing Fields.

We affirm.

                             FACTS AND PROCEDURAL HISTORY

        Fields was charged on July 8, 2011, with Class D felony residential entry and Class A

misdemeanor domestic battery. On July 26 , the trial court scheduled Fields’ jury trial for

October 19 and a pre-trial conference for September 26. On September 9, the State alleged

Fields was an habitual offender. The trial court ordered the initial hearing on the habitual

offender count would occur during the hearing set for September 26.

        Fields appeared at that hearing with his counsel. Both the State and defense counsel

indicated they were ready for trial. Neither the parties nor the trial court mentioned the

pending habitual offender count.

        Then, on the day of trial, defense counsel advised the court Fields did not remember

having an initial hearing on the habitual offender count. The trial court asked Fields if he

had read the habitual offender count, and he admitted he had. The following discussion took


1
  Ind. Code § 35-43-2-1.5.
2
  Ind. Code § 35-42-2-1.3.
3
  Ind. Code § 35-50-2-8.
                                               2
place:

         [Defense Counsel]: Yes. Judge, the State filed an Habitual. [Fields] swears
               he doesn’t remember having an initial hearing on that. Thank you.
               And it was filed-I can’t read the file stamp. But [Prosecutor’s],
               certificate of service was nine (inaudible), so I’m assuming that’s the
               filing date. That is the 10th day, but again, [Fields] just doesn’t
               remember. I guess [Fields] doesn’t remember having that read to him.
         COURT:               So what are you asking me to do this morning?
         [Defense Counsel]: I’m just bringing that to the Court’s attention, if the Court
               wants to read it to him. He knows the penalties. He just wanted you to
               know that. He doesn’t remember having the initial.
         COURT:               Mr. Fields?
         MR. FIELDS:          Yes, ma’am.
         COURT:               Good morning, Mr. Fields. In the abundance of caution, I
               will go ahead and -- you want me to read the Habitual charges to you or
               have you already read them yourself?
         MR. FIELDS:          I’ve read them.
         COURT:               All right. And you understand the range of punishment?
         MR. FIELDS:          A-
         COURT:               Did you talk to [defense counsel] about [the habitual
               offender count]?
         MR. FIELDS:          Yes.
         COURT:               All right.
         [Defense Counsel]: For what-for what it was worth, he wanted you to know
               that.
         COURT:               Okay. So do you have any questions regarding the
               Habitual Offender enhancement?
         MR. FIELD[s]:        Yeah. I never was -- like I said, I had a hearing on the
                  th
               26 for it, but I can’t (inaudible).
         REPORTER:            I can’t hear you. I’m sorry.
         COURT:               Speak up a little bit.
         MR. FIELDS:          I said that on the 26th I had a -- supposedly had a hearing
               for it. On the 26th only thing we talked about was the -- the lawyer
               mentioning a motion for -- motion for discovery and said -- asked a --
               Judge asked if we set, ready for trial. I said yes. Actually the State said
               yes and that was the end of it.
                                              *****
         STATE:               . . . [T]he fact that he hasn’t had his initial hearing doesn’t
               change the fact that the State is ready to proceed on it today. If he
               would like a formal initial hearing, he can have it today. . . .
               Furthermore, it was filed on September 9th and he has an attorney and
                                                  3
              I’m sure [defense counsel] would have explained to him the penalties.
              So he’s not prejudiced by the fact that he has yet to have initial hearing
              on the Habitual Offender at this point.
       COURT:               [Defense counsel], anything further?
       [Defense counsel]: No, ma’am.
       COURT:               All right. Does he want a formal hearing? I just asked
              him if he understands the range of punishment and that he’s read it and
              understands it and he said yes, but is that correct?
       (No response.)
       COURT:               Okay. So do we need to do anything further then?
       [Defense counsel]: No, ma’am.

(Jury Trial Tr. at 4-6.)

       While the jury was deliberating his guilt, Fields informed the trial court that he would

“stipulate” to the Habitual Offender allegation if the jury found him guilty of residenail entry

and domestic battery. (Id. at 162.) The jury found Fields guilty of those two crimes, and

then the following conversation took place:

       COURT:                All right, the jury having found the Defendant guilty of
             Count I and Count II, I will enter judgments of conviction on both
             counts. We’ll move into the second phase, which is the Habitual
             Offender. . . .
                                           *****
       COURT:                [Defense counsel] do you need more time with your client
             before proceeding?
       [Defense counsel]: I’ll wait till he regains his composure, Judge.
                                           *****
       COURT:                Mr. Fields, are you ready to proceed?
       (No response.)
       COURT:                As you know, the State has filed a notice of its intent to
             seek Habitual Offender enhancement. At this time, Mr. Fields, I would
             ask you, are you the same Mr. Fields that on or about July 15th, 1996 in
             the County of Allen, State of Indiana, did commit felony criminal act,
             to-wit: Attempt Theft, a Class D Felony and that said Defendant was in
             Cause Number 02D04-9607-FC-324 [sic] convicted and sentenced for
             the commission of said felony on the 6th day of December, 1996 in the
             County of Allen, Fort Wayne, Indiana?
                                           *****
                                               4
      MR. FIELDS:        Yes.
      COURT:             All right. Additionally, are you same Termaine T. Fields
           that on or about the 17th day of September, 2002 in the County of Allen,
           State of Indiana, did commit another unrelated felony criminal act, to-
           wit: carrying a Handgun without a License, a Class C Felony. That
           said Defendant was in Cause Number 02D04-0209-FC-170 convicted
           and sentenced for the commission of said felony on the 17th day of
           March, 2003 in the Allen County Superior Court, Fort Wayne, Indiana?
      MR. FIELDS:        Yes.

(Id. at 163-65.) The trial court then entered a judgment of conviction on the habitual

offender count.

      At the sentencing hearing on November 9, 2011, the court asked Fields whether he

was satisfied with the representation he received from counsel:

      MR. FIELDS:           No . . . There’s a lot of things that happened that day [of
            trial that] I was not aware of.
      COURT:                Like what?
      MR. FIELDS:           The fact that . . . I didn’t know nothing about a plea
            bargain. Second, I was -- feel like I was -- I was forced into the trial
            not knowing nothing and the Habitual enhancement. I didn’t know
            anything about that until the day before trial.
      COURT:                All right. You admitted to that. You and I discussed the
            Habitual enhancement and you admitted to that.
                                          *****
      [Defense counsel]: . . . If he-if he didn’t have an initial hearing on [the
            habitual enhancement] originally when it was filed, then perhaps that’s
            an issue down the road, but --
      COURT:                Well, I have in my file and I do recall this -- bringing it to
            my attention . . . and it looks like we did, we did his initial hearing on
            the day of the jury trial and I believe -- it’s not in my notes, but I would
            assume you told me after the Habitual -- after the initial hearing, I think
            there was some issue the day of trial that he didn’t have his initial
            hearing, so we conducted one according to my notes. I don’t know
            what the record was.
      [Defense counsel]: We did.
      COURT:                Okay. Or he admitted-or waived it. Whatever we did,
            but regardless when I asked both sides then if we were ready for trial-
            ready to proceed to trial after that.
                                              5
       [Defense counsel]: Yes, ma’am. That’s my response to [Fields’] complaints.

(Sentencing Tr. at 4-7.)

       The court heard testimony from Fields and arguments of counsel regarding

aggravating and mitigating circumstances. Fields testified that he wanted to apologize to his

wife and his parents, and the trial court confirmed that he was not admitting he committed the

offenses. The court went on:

       In weighing the aggravators and mitigators in this case I’ll start with the
       mitigators in which I find zero. I don’t even hear any remorse other than the
       fact -- which is why I asked you the question, other than the fact you’ve had a
       hard life. Many people do. And you’re sorry now that you got caught, but I
       heard no remorse regarding the facts and circumstances nor your past history.
       As aggravating circumstances I look to your past criminal history. I note and
       the prosecutor has outlined them completely. I’ve made the Pre-Sentence
       Investigation Report a part of the record so that Pre-Sentence Investigation
       Report outlines them fully. However, in summation there’s three juvenile
       delinquence [sic] adjudications. You were placed on informal adjustment
       three times. As a juvenile, your juvenile probation was revoked once and you
       were sent to the Indiana Boys’ School. However, as an adult and candidly
       when I look at your age of 34 years old, you’re not that old. As an adult
       you’ve had 26 prior misdemeanor convictions and six prior felony offenses.
       You’ve have [sic] five misdemeanor suspended sentences modified and four
       misdemeanor suspended sentence[s] revoked. You’ve had two terms of your
       felony probation revoked and you’ve been found in violation of parole four
       times. I also note that you admitted to being a member of a gang which shows
       me your-your character candidly. I will show that prior attempts at -- all prior
       attempts at rehabilitation have failed. Additionally in looking at the character
       of Mr. Fields, I find that as an aggravator. . . . I note as your character as well
       that you asked the victim to lie for you. . . . As I look to the IRAS score which
       helps me determine whether or not I place you in prison or probation or the
       length of time, I note that as the prosecutor pointed out, you are very high risk,
       34 plus, which we don’t see very often in the Court. I will show that the
       aggravating circumstances drive your sentence far above the advisory and I
       will sentence you in Count I the Residential Entry, to three years in the Indiana
       Department of Corrections [sic]. Sentence you to Count II, Domestic Battery,
       a Class A Misdemeanor to one year in the Indiana Department of Corrections
       [sic]. I will enhance that sentence with the Habitual Offender tacking on an
                                                6
        additional four and a half years.

(Id. at 21-23.) All counts were ordered served consecutively, for an aggregate sentence of

eight and a half years.

                             DISCUSSION AND DECISION

        1.     Habitual Offender Enhancement

        Fields argues there was reversible error because a formal initial hearing was not held

on his habitual offender enhancement. Fields is correct that “[an] habitual offender charge is

subject to the same procedural safeguards as any criminal offense,” Lampkins v. State, 682

N.E.2d 1268, 1273 (Ind. 1997), modified on reh’g on other grounds, 685 N.E.2d 698 (Ind.

1997), but “failure to hold an initial hearing on the habitual offender count is not reversible

error unless it results in prejudice.” Id. Even if a defendant did not have actual knowledge

of the charge, prejudice does not necessarily result if defense counsel had knowledge. Id. at

1274.

        While a formal initial hearing was not held, Fields’s counsel stated he had read and

discussed the habitual offender charge and potential penalties with Fields. The State and the

trial court both indicated a willingness to have a formal initial hearing, and the lengthy

discussion concluded this way:

        COURT:              All right. Does he want a formal hearing? I just asked
              him if he understands the range of punishment and that he’s read it and
              understands it and he said yes, but is that correct?
        (No response.)
        COURT:              Okay. So do we need to do anything further then?
        [Defense counsel]: No, ma’am.


                                              7
(Jury Trial Tr. at 4-6.) There was noreversible error. See Lampkins, 682 N.E.2d at 1274

(holding no reversible error because counsel knew about the charge at least four days before

the trial).

        2.       Mitigating Circumstances

        Fields argues the trial court abused its discretion in sentencing him to the maximum

possible sentence of eight and a half years because it ignored significant mitigating factors.

Sentencing decisions rest within the sound discretion of the trial court, and we review those

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

2007), modified on reh’g on other grounds (Ind. 2007). An abuse of discretion has occurred

if a decision was “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 a trial court is “required to identify all significant mitigating circumstances.” Id. at

492-93. To demonstrate a trial court overlooked a valid mitigator, an appellant must

demonstrate the evidence of such mitigator was “both significant and clearly supported by

the record.” Id. at 493.

        Fields argues the court should have found as a mitigator his admission he was an

habitual offender, as that relieved the State of the burden of proving his prior convictions.4

Our Indiana Supreme Court has explained:


4
  The State asserts Fields waived this argument because he did not assert it at the sentencing hearing. Fields’
admission to the habitual offender allegation was, in essence, a plea of guilty to that allegation. An appellant
may raise a guilty plea as a mitigator for the first time on appeal because “a sentencing court is inherently
aware of the fact that a guilty plea is a mitigating circumstance.” Anglemyer v. State, 875 N.E.2d 218, 220
(Ind. 2007). We therefore reject the State’s allegation that Fields waived this argument.

                                                       8
       [A] defendant who pleads guilty deserves ‘some’ mitigating weight to be given
       to the plea in return. But an allegation that the trial court failed to identify or
       find a mitigating factor requires the defendant to establish that the mitigating
       evidence is not only supported by the record but also that the mitigating
       evidence is significant. And the significance of a guilty plea as a mitigating
       factor varies from case to case. For example, a guilty plea may not be
       significantly mitigating when it does not demonstrate the defendant’s
       acceptance of responsibility or when the defendant receives a substantial
       benefit in return for the plea.

Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007) (internal citations omitted).

       After the jury found Fields guilty of residential entry and domestic battery, Fields pled

guilty to being an habitual offender. Fields’ criminal history included six felony convictions

and the State would presumably need only to print court documents to demonstrate he was an

habitual offender. We therefore cannot hold the trial court abused its discretion by

overlooking significant evidence of a mitigator. See Edrington v. State, 909 N.E.2d 1093,

1101 (Ind. Ct. App. 2009) (guilty plea does not rise to level of significant mitigator when

“evidence against him is such that the decision to plead guilty is merely a pragmatic one”),

trans. denied.

       Fields also argues the court should have found a mitigator in the remorse he

demonstrated by telling his parents he was sorry. However, when given the opportunity to

clarify whether he was sorry for the crimes for which he was convicted, Fields continued to

claim he had not committed the crimes. As a result, we cannot say that Fields exhibited such

significant remorse that the trial court was required to find it as a mitigating factor. See, e.g.,

Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011) (finding no mitigator in

alleged remorse because trial court had authority to assess credibility of witnesses), trans.

                                                9
denied.

      Affirmed.

ROBB, C.J., and PYLE, J., concur.




                                    10
