                                                                            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

      Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018       Page 2 of 12
      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


      Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018       Page 3 of 12
      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.




      Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018        Page 4 of 12
[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


      Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018      Page 5 of 12
       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




       Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018       Page 6 of 12
       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.




       Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018                                 Page 7 of 12
       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

       Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018        Page 8 of 12
       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.



       Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018                   Page 10 of 12
[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

       Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018        Page 11 of 12
       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.




       Court of Appeals of Indiana | Opinion 18A-CR-1101 | October 10, 2018      Page 12 of 12
