                                                                                     FILED
MEMORANDUM DECISION
                                                                               08/28/2017, 10:00 am
Pursuant to Ind. Appellate Rule 65(D), this                                          CLERK
                                                                                 Indiana Supreme Court
Memorandum Decision shall not be regarded as                                        Court of Appeals
                                                                                      and Tax Court
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
Troy D. Warner                                           Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

David Wayne Martin,                                      August 28, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1612-CR-2945
        v.                                               Appeal from the St. Joseph Superior
                                                         Court.
                                                         The Honorable John M. Marnocha,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         71D02-1605-F6-407




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2945 | August 28, 2017            Page 1 of 5
                                          Statement of the Case
[1]   David Wayne Martin appeals from the trial court’s order sentencing him in
                                                                        1
      absentia on his guilty plea of theft, a Level 6 felony, claiming that he was

      denied the opportunity to explain to the trial court the reason for his absence

      from his sentencing hearing, and contending that he did not voluntarily waive

      his right to attend. We affirm.


                                                     Issue
[2]   Martin raises two issues which we combine and state as the following one:

      whether the trial court committed reversible error by proceeding to sentence

      Martin in his absence.


                                   Facts and Procedural History
[3]   On December 3, 2015, Martin stole a cell phone from Midwest Cellular in St.

      Joseph County. At the time he committed that theft, he had a prior conviction

      for theft in Hendricks County. On March 21, 2016, Martin stole a Samsung

      Note 5 from an AT&T store. At the time he committed the theft, he had a prior

      theft conviction in St. Joseph County.


[4]   On September 13, 2016, a hearing was scheduled on a motion to enter a plea

      pursuant to a plea agreement. The chronological case summary reflects that

      although the State and Martin’s counsel appeared for the hearing, Martin



      1
          Ind. Code § 35-43-4-2 (2014).


      Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2945 | August 28, 2017   Page 2 of 5
      refused transport for the hearing. The matter was rescheduled for October 4,

      2016. The State, Martin, and Martin’s counsel all appeared for the October 4

      hearing at which time Martin acknowledged the terms of the agreement and the

      trial court took the plea under advisement. Pursuant to the terms of the plea

      agreement, Martin’s sentence was to be left open to argument with the

      maximum amount of executed time to be capped at thirty months. The trial

      court announced that the sentencing hearing would take place on November 2,

      2016.


[5]   Martin was not present at the hearing on November 2, 2016. The following is

      the exchange between the trial court and Martin’s counsel:

              THE COURT: These are Cause Nos. 16-F6-13, 16-F6-407, and
              15-CM-3051, State versus David Martin.
              My understanding is that Mr. Martin refused to come over today.
              The comment he made was that he’d rather go to the dentist.
              There seems to be a rash of people refusing to come over to court
              from the jail. And I’m quite honestly, tired of it.
              I believe that that is a voluntary absence from court, so the Court
              is going to proceed to sentencing in Mr. Martin’s absence.
              Mr. Rose?
              MR. ROSE: Thank you, Judge.
              I would simply make a Record of the defendant’s objection to
              proceed in absentia with sentencing.
      Sentencing Tr. p. 3. Martin’s counsel did not move for a continuance of the

      sentencing hearing. Instead, he and the State proceeded with arguments on the

      issue of sentencing.



      Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2945 | August 28, 2017   Page 3 of 5
[6]   The trial court accepted the plea agreement, entered judgment of conviction,

      and sentenced Martin to consecutive sentences totaling thirty months. The trial

      court allowed Martin to file a belated notice of appeal and this appeal ensued.


                                   Discussion and Decision
[7]   Martin contends that the trial court committed reversible error by denying him

      the right to be present at his sentencing hearing and by failing to give him the

      opportunity to explain his absence from the sentencing hearing.


[8]   We acknowledge the longstanding principle that a defendant has the right to be

      present at sentencing. Gillespie v. State, 634 N.E.2d 862, 863 (Ind. Ct. App.

      1994), trans. denied. Indeed, Indiana Code section 35-38-1-4(a) (1983) provides

      that, “The defendant must be personally present at the time sentence is

      pronounced. If the defendant is not personally present when sentence is to be

      pronounced, the court may issue a warrant for his arrest.” A defendant may

      waive the right to be present at his sentencing hearing if it is shown that his

      absence is knowing and voluntary. Gillespie, 634 N.E.2d at 863.


[9]   Here, the record reflects that Martin was present in court with counsel when the

      date of his sentencing hearing was announced. Therefore, the record reflects

      that his absence from the hearing was knowing and voluntary. To the extent he

      argues that he was entitled to the opportunity to provide an explanation to the

      court, we note the cases he cites involve defendants who were tried in absentia.

      Further, Martin did not request a continuance of the sentencing hearing, and he

      had refused transport on at least one prior occasion.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2945 | August 28, 2017   Page 4 of 5
[10]   The trial court stated on the record that Martin had expressed the desire to visit

       a dentist instead of attending his hearing. There is no admissible evidence to

       rebut the trial court’s finding that Martin’s absence from his sentencing hearing

       was both knowing and voluntary.


                                                Conclusion
[11]   In light of the foregoing, we affirm the trial court’s decision.


[12]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2945 | August 28, 2017   Page 5 of 5
