MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                May 20 2015, 6:38 am
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
Donald E.C. Leicht                                       Gregory F. Zoeller
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Cleverly P. Lockhart,                                   May 20, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A04-1407-CR-351
        v.                                              Appeal from the
                                                        Howard Circuit Court
State of Indiana,                                       The Honorable Bruce C. Embrey,
                                                        Special Judge
Appellee-Plaintiff.
                                                        Cause No. 34C01-9406-CF-40




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015      Page 1 of 13
[1]   Cleverly P. Lockhart was convicted in 1995, after a jury trial, of one count of

      child molesting1 as a Class C felony and three counts of child molesting, 2 each

      as a Class B felony. He brings this belated appeal after his re-sentencing in

      1998, where he received a fifty-three-year sentence, and raises the following

      issue: whether the trial court erred when it re-sentenced him.


[2]   We affirm.


                                      Facts and Procedural History
[3]   The facts of Lockhart’s 1995 convictions were set out in his direct appeal to this

      court as follows:

                 In November of 1993, Lockhart moved into the house of his friend,
                 Michelle Frazier. At first, Lockhart slept on a couch, but eventually
                 began sleeping in the bedroom of Frazier’s eleven year old son, J.R.
                 Lockhart developed a close father-son relationship with J.R.
                 In January of 1994, while Lockhart and J.R. sat on the floor under a
                 blanket and watched television, Lockhart reached over and placed his
                 hand inside J.R.’s underwear. Lockhart rubbed J.R.’s penis for several
                 minutes.
                 A couple of weeks later, Lockhart went into J.R.’s bedroom and
                 locked the door. He told J.R. about oral sex and then pulled J.R.’s
                 pants down. Lockhart placed his mouth on J.R.’s penis for several
                 minutes.
                 One month later, Lockhart again entered J.R.’s bedroom and locked
                 the door. He performed oral sex on J.R. and forced J.R. to perform



      1
        See Ind. Code § 35-42-4-3(b). We note that, effective July 1, 2014, a new version of the criminal statute at
      issue in this case was enacted. Because Lockhart committed his crimes prior to July 1, 2014, we will apply
      the statute in effect at the time he committed his crimes.
      2
          See Ind. Code § 35-42-4-3(a).


      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015                   Page 2 of 13
              oral sex on him. Afterwards, Lockhart placed his penis into a sock
              and masturbated until he ejaculated.
              In March of 1994, Lockhart became angry with J.R. for not
              completing a household chore. Lockhart spanked J.R. and ordered
              him to go to his bedroom. Lockhart later went to J.R.’s bedroom to
              apologize. Lockhart told J.R. “how to make love to a guy” and then
              “french-kissed.” Lockhart kissed J.R. all over his body and put his
              mouth on J.R.’s penis. Lockhart moved out of the house later that
              month. Before leaving, Lockhart told J.R. that if J.R. ever decided he
              was homosexual, he should contact Lockhart.
              Approximately two weeks later, J.R. told his mother about the
              molestations. Frazier immediately reported the incidents to Child
              Protective Services.
      Lockhart v. State, 671 N.E.2d 893, 896-97 (Ind. Ct. App. 1996). The State

      charged Lockhart with one count of Class C felony child molesting and three

      counts of Class B felony child molesting. At the jury trial, Lockhart did not

      raise mental illness as a defense, and he testified coherently in his own defense.

      Lockhart claimed to have received letters from the victim recanting the

      accusations against Lockhart; however, the evidence showed that the letters had

      not been written by the victim. There was also evidence and references to

      several other forged documents associated with the case. According to

      Lockhart’s trial attorney, there were many forged documents concerning cases

      in which Lockhart was involved, and the attorney viewed documents provided

      by Lockhart with caution until they could be verified by other sources.


[4]   At the conclusion of the jury trial, Lockhart was found guilty as charged. The

      trial court sentenced him to eight years for the Class C felony conviction and

      twenty years each for the three Class B felony convictions, with the sentences to

      run consecutively, for a total sentence of sixty-eight years; however, believing it

      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 3 of 13
      was required to do so under statute, the trial court reduced the aggregate

      sentence to thirty years. This court affirmed Lockhart’s convictions on direct

      appeal, but found that the trial court had erred in its belief that it was required

      to reduce Lockhart’s sentence and had, therefore, imposed an illegal sentence.

      Lockhart, 671 N.E.2d at 904-05. Lockhart’s original sentence was vacated, and

      the case was remanded with instructions to impose a “statutorily authorized

      sentence.” Id. at 905.3


[5]   Although it is not clear why, Lockhart was examined by Dr. Angel Brignoni on

      September 19, 1995, about one month after his original sentencing, and by Dr.

      David Jarmon on April 22, 1996, about eight months after his sentencing.4 In

      September 1995, Dr. Brignoni diagnosed Lockhart with bipolar disorder with

      psychotic features and concluded that Lockhart was incompetent to stand trial

      at that time. Appellant’s App. for 34A04-1204-CR-226 at 64-65. In April 1996, Dr.

      Jarmon diagnosed Lockhart with schizo-affective disorder, bipolar type and




      3
        This court also stated, in a footnote, that three of the aggravating factors relied upon by the trial court were
      not proper. Lockhart v. State, 671 N.E.2d 893, 904 n.5 (Ind. Ct. App. 1996). This was, however, not the basis
      for vacating Lockhart’s sentence, and there were four other aggravating factors relied upon by the trial court
      that were not found to be improper: (1) Lockhart’s violation of probation; (2) his prior criminal history; (3)
      the need for correctional treatment; and (4) the violation of a position of trust. Id. at 903.
      4
        The CCS contains no entries indicating either that these evaluations were ordered or that the reports were
      filed with the trial court. Dr. Brignoni’s report states that Lockhart was being evaluated “to determine
      whether he is competent to stand trial,” but at the time of the evaluation, Lockhart had already been tried,
      convicted, and sentenced for his crimes. Appellant’s App. for 34A04-1204-CR-226 at 61. Dr. Jarmon’s report
      states that Lockhart was currently incarcerated and had been for approximately three years for an arrest on
      child molesting charges, id. at 57; however, at the time of evaluation, Lockhart had already been convicted
      and sentenced for the child molesting charges. Therefore, it does not seem that these reports were created in
      connection with this case as the case would have been on appeal with this court at the time the evaluations
      were performed.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015                    Page 4 of 13
      concluded that there were questions about Lockhart’s competency to stand trial.

      Id. at 60. Dr. Jarmon also cautioned, however, that he could not rule out the

      possibility of malingering in this case. Id. at 58.


[6]   On June 12, 1997, Lockhart’s attorney for the re-sentencing filed a motion

      requesting a mental examination, which was granted by the trial court. The

      trial court received a copy of the report from this mental examination on April

      2, 1998. A report of a psychiatric evaluation done by Dr. Edward Wasserman

      on July 15, 1997 is contained in the record, which states that the evaluation had

      been ordered to recommend admission to the psychiatric ward of the Westville

      Correctional Center. It appears this was the report that the trial court referred

      to at the re-sentencing hearing as it occurred close in time to the ordered

      evaluation, and in the transcript of the re-sentencing, the trial court referred to

      page two of the report and verbatim quotes Dr. Wasserman’s diagnosis of “‘Bi-

      Polar [a]ffective Disorder with psychosis and rule out schizo[a]ffective disorder,

      also chemical dependency to poly-substances.’” Appellant’s App. 34A04-1204-CR-

      226 at 52 (quoting Appellant’s App. 34A05-0905-PC-293 at 34). The July 15 report

      recommended that Lockhart be admitted to the psychiatric area for further

      observation and treatment, but did not contain an opinion that Lockhart was

      incompetent at that time.


[7]   The re-sentencing hearing was held on April 16, 1998. During the hearing,

      Lockhart did not claim that he was currently incompetent or make any

      objection that he could not be sentenced on that basis. The parties did not

      present any evidence except for Lockhart’s counsel referring to “the information

      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 5 of 13
      that the [c]ourt had on the . . . medical reports.” Id. at 47. The trial court

      mentioned a psychiatric evaluation given to it by Lockhart’s counsel,

      presumably the evaluation done by Dr. Wasserman on July 15, 1997, and to

      two exams it already had, presumably the reports by Drs. Brignoni and Jarmon.

      After argument by the parties, the trial court found as aggravating factors that

      Lockhart was on probation at the time he committed the crimes, his prior

      criminal history, that prior periods of incarceration had not rehabilitated him,

      and the violation of a position of trust. It found as a mitigating factor that

      Lockhart suffers from bi-polar affective disorder with psychosis. The trial court

      found the aggravating factors outweighed the mitigating factor and sentenced

      Lockhart to eight years for his Class C felony conviction and fifteen years for

      each of his three Class B felony convictions with the sentences to run

      consecutively for an aggregate sentence of fifty-three years.


[8]   Lockhart filed a petition for post-conviction relief shortly after the re-sentencing

      hearing. At the hearing on his petition, Lockhart attempted to admit several

      exhibits, which the post-conviction court excluded, including an affidavit

      purporting to be from Lockhart’s re-sentencing counsel that stated that

      Lockhart was incompetent during the re-sentencing hearing. The attorney

      testified at the hearing, however, and stated that it was not his signature on the

      affidavit and he did not remember the affidavit. Included in the documents

      attached to this alleged affidavit by the attorney was a one-page letter

      purporting to be from Dr. Wasserman to the sentencing judge dated January

      14, 1998 that stated the opinion that Lockhart was incompetent at that time.


      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 6 of 13
       Lockhart’s post-conviction petition was denied, and this court affirmed that

       ruling on appeal.


[9]    Lockhart filed a motion to correct erroneous sentence in March 2012, which

       was denied by the trial court. On his appeal of that denial, Lockhart included a

       one-page document in his appendix that claimed to be a report by Dr.

       Wasserman regarding an evaluation conducted on April 13, 1998. The report

       stated that Lockhart was incompetent at that time. The denial of Lockhart’s

       motion to correct erroneous sentence was affirmed. Lockhart now belatedly

       appeals his 1998 re-sentencing.


                                      Discussion and Decision
[10]   Lockhart argues that the trial court erred when it re-sentenced him. He first

       contends that the trial court abused its discretion when it sentenced him to fifty-

       three-years at his re-sentencing hearing. We review a trial court’s sentencing

       decision for an abuse of discretion. Gellenbeck v. State, 918 N.E.2d 706, 711

       (Ind. Ct. App. 2009). An abuse of discretion occurs if the sentencing decision is

       clearly against the logic and effect of the facts and circumstances. Id.


[11]   Lockhart concedes that the sentence imposed by the trial court was within

       statutory parameters and that the “sentencing order is not subject to challenge

       on the grounds of an improper [weighing] of aggravating and mitigating

       factors.” Appellant’s Br. at 9. Instead, Lockhart argues that the trial court

       abused its discretion in “treating incompetence . . . as merely a mitigating

       circumstance, rather than a prohibited violation of federal due process.” Id. He

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 7 of 13
       contends that, at the re-sentencing hearing, he submitted reports that indicated

       that he was incompetent and that, because a conviction of an incompetent

       person is a violation of federal due process, the sentencing of an incompetent

       person must also be a denial of due process.


[12]   Initially, we note that Lockhart failed to provide a cogent argument in support

       of his contention. Indiana Appellate Rule 46(A)(8) requires that contentions in

       an appellant’s brief be supported by cogent reasoning and citations to

       authorities, statutes, and the appendix or parts of the record on appeal. “A

       party waives an issue where the party fails to develop a cogent argument or

       provide adequate citation to authority and portions of the record.” Davis v.

       State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005), trans. denied. Here, Lockhart

       merely cites to case law stating that a defendant may not stand trial when

       incompetent, but makes no citation to authority that states that a defendant

       may not be sentenced if incompetent. Further, he does not assert any argument

       as to why such a rule would apply to the present case, where he was merely

       being re-sentenced due to an error in the original sentencing and no evidence

       was even presented at the re-sentencing hearing. Therefore, Lockhart has

       waived this contention by failing to provide a cogent argument in support of his

       claim.


[13]   Waiver notwithstanding, Lockhart’s argument fails. In support of his

       contention that he was incompetent at the time of the re-sentencing hearing,

       Lockhart points to three reports: the September 1995 evaluation report by Dr.

       Brignoni; the April 1996 evaluation report by Dr. Jarmon; and an evaluation

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 8 of 13
       report by Dr. Wasserman dated April 13, 1998. Dr. Brignoni evaluated

       Lockhart in September 1995, two and a half years before the re-sentencing

       hearing. Dr. Jarmon evaluated Lockhart in April 1996, two years before the re-

       sentencing. Given that these reports were completed at least two years prior to

       when Lockhart was re-sentenced, they are not relevant as to whether he was

       competent at the time of the re-sentencing hearing because it would be

       speculation to assume that Lockhart’s condition was still the same as it was two

       years prior. The presumption that Lockhart’s condition is not the same as it

       was two years prior is supported by the fact that his attorney did not assert that

       Lockhart was incompetent at the re-sentencing or object to the re-sentencing

       occurring on that basis.


[14]   Therefore, the only remaining evidence supporting incompetence was the report

       by Dr. Wasserman dated April 13, 1998. Although Lockhart has included this

       report in the record on appeal, there is no evidence that this report was

       presented to the trial court at re-sentencing. The one-page report at issue is not

       file-stamped and is dated April 13, 1998. Appellant’s App. 34A04-1204-CR-226 at

       66. The CCS indicates that, on April 2, 1998, the trial court received a mental

       evaluation that had been requested on June 12, 1997, and no other entries

       reflect that a subsequent report was received between April 13 and 16, 1998.

       Appellant’s App at 21. It is clear that this one-page report was not the same one

       discussed by the parties at the re-sentencing hearing. The report discussed was

       two pages in length, and the language quoted by the trial court matches that

       from a report by Dr. Wasserman completed on July 15, 1997, but does not


       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 9 of 13
       match any language from the April 13 report. The two-page evaluation from

       July 15, 1997 also seems more likely to be one ordered by the trial court as it

       occurred closer in time to June 12, 1997, the date it was ordered. It is

       important to note that, although the July 15, 1997 report diagnosed Lockhart

       with significant mental health issues, it did not allege that he was incompetent

       at that time. Appellant’s App. 34A05-0905-PC-293 at 33-34. The record, therefore,

       does not support that the April 13 report was ever before the trial court at re-

       sentencing.5 Lockhart has failed to present evidence that the evidence presented

       to the trial court at his re-sentencing hearing demonstrated that he was

       incompetent at that time.


[15]   Even if there was evidence that the trial court was presented with reliable

       evidence that Lockhart was incompetent at the time of re-sentencing, it would

       not have been an abuse of discretion to re-sentence Lockhart in this case. The

       trial and conviction of a defendant who lacks adequate competence is a denial

       of federal due process. Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995). The

       standard for deciding competency is whether or not the defendant possesses the

       ability to consult rationally with counsel during the case and factually

       comprehend the proceedings against him or her. Id. It clearly violates due

       process for a defendant to stand trial when he has no understanding of the




       5
        The circumstances of this case also cause concern as to the validity of the April 13, 1998 report by Dr.
       Wasserman. There was a history of previous forged documents in this case associated with Lockhart. The
       April 13 report was not file-stamped and was contained in an appendix submitted by Lockhart pro se in prior
       proceedings in this case. Nothing in the CCS shows that this report was ever filed in this proceeding.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015             Page 10 of 13
       proceedings and cannot assist in his defense. Id. at 1384-85. However, no

       authority has been presented to indicate that this due process right extends to

       the imposition of sentence.


[16]   Even assuming that there is a constitutional due process right to be competent

       at the initial hearing, it does not mean this is automatically true for a re-

       sentencing hearing as occurred in the present case. At the original sentencing

       hearing, the defendant may provide important assistance to his counsel in

       preparing evidence and witnesses to present on his behalf. See Ind. Code § 35-

       38-1-3 (defendant is entitled to subpoena and call witnesses and to present

       information in his own behalf at sentencing hearing). A defendant also

       provides information for the pre-sentence investigation report and has an

       opportunity to speak on his behalf before the sentence is imposed. Therefore, a

       defendant’s ability to assist in his sentencing hearing would be hindered if he

       were not competent during his original sentencing hearing.


[17]   However, in the present case, such reasoning does not apply. Here, Lockhart’s

       re-sentencing hearing was just an opportunity for the trial court to correct a

       legal error that happened during the original sentencing. No new evidence was

       presented, and neither party called any witnesses. No new pre-sentence report

       was presented, and the trial court was not asked to consider any new

       aggravating or mitigating factors. Thus, this was not a proceeding where the

       defendant’s ability to assist his counsel was necessary to protect his rights or

       where there were significant issues that required defendant’s participation. The

       purpose of this re-sentencing hearing was to impose a sentence that did not

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 11 of 13
       include the legal error that occurred in the initial hearing. We conclude that the

       trial court did not abuse its discretion when it sentenced Lockhart.


[18]   Lockhart next argues that his fifty-three-year sentence is inappropriate in light

       of the nature of the offense and the character of the offender. Under Indiana

       Appellate Rule 7(B), “we may revise any sentence authorized by statute if we

       deem it to be inappropriate in light of the nature of the offense and the character

       of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014).6 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. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the

       defendant’s burden on appeal to persuade the reviewing court that the sentence

       imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,

       133 (Ind. Ct. App. 2012), trans. denied.


[19]   As to the nature of the offense, Lockhart repeatedly molested the eleven-year-

       old son of his friend, who had allowed him to stay with her. The victim did not

       have a father figure in his life, and Lockhart developed a close father-son

       relationship with the boy. Over the span of a few months, Lockhart progressed

       from fondling J.R. to performing oral sex on the boy and having J.R. perform




       6
         On July 19, 2002, our Supreme Court amended Indiana Appellate Rule 7(B) effective January 1, 2003. The
       rule is directed to the reviewing court and sets forth the standard for that review. Because that review is made
       as of the date the decision or opinion is handed down, even when a sentence was imposed prior to January 1,
       2003, we will review the sentence using the “inappropriate” test that is currently in effect. Kien v. State, 782
       N.E.2d 398, 416 n.12 (Ind. Ct. App. 2003), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015                 Page 12 of 13
       oral sex on him. Lockhart also told J.R. that he was teaching him “how to

       make love to a guy.” Lockhart, 671 N.E.2d at 897. As a result of Lockhart’s

       acts, J.R. suffered significant behavioral and emotional issues. Lockhart’s

       offenses consisted of multiple molestations of the victim that occurred over a

       period of several months, he abused a position of trust, and he caused

       significant emotional harm to the victim. Lockhart’s sentence is not

       inappropriate in light of the nature of the offense.


[20]   As to Lockhart’s character, he has a significant criminal history that consists of

       at least four felony convictions, including arson, theft, and forgery. Lockhart

       was also on probation at the time he committed the offenses for which he was

       re-sentenced. Additionally, there was evidence that Lockhart had forged

       documents involved in this case. Further, Lockhart’s abuse of his position of

       trust with the victim in this case, with whom he had a father-son relationship,

       speaks to his poor character. We conclude that Lockhart’s sentence is not

       inappropriate in light of his character. The trial court did not err in imposing a

       fifty-three-year sentence at Lockhart’s re-sentencing hearing.


[21]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015   Page 13 of 13
