MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jan 31 2019, 6:42 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bryan M. Truitt                                          Curtis T. Hill, Jr.
Bertig and Associates, LLC                               Attorney General of Indiana
Valparaiso, Indiana                                      Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Hakimah Qualls,                                          January 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1127
        v.                                               Appeal from the Porter Superior
                                                         Court
State of Indiana,                                        The Honorable Roger V. Bradford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         64D01-1509-F5-8078



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019                Page 1 of 9
[1]   Following a jury trial in Porter Superior Court, Hakimah Qualls (“Qualls”) was

      convicted of Level 5 felony escape, Level 6 felony battery, and Level 6 felony

      operating while intoxicated. The trial court initially sentenced Qualls to an

      aggregate term of three years executed and three years suspended to probation.

      Qualls failed to surrender herself to serve the executed portion of her sentence

      but was apprehended shortly thereafter. On the State’s motion, the trial court

      held a new sentencing hearing. At the hearing, Qualls requested counsel, but

      the trial court denied her request and re-sentenced her to an executed term of

      six years. Qualls appeals and presents two issues, which we restate as: (1)

      whether the trial court denied her Sixth Amendment right to counsel when it

      denied her request for counsel at the re-sentencing hearing, and (2) whether the

      trial court had authority to re-sentence Qualls. The State concedes that the trial

      court had no authority to re-sentence Qualls after its initial imposition of

      sentence.


[2]   We reverse and remand.


                                 Facts and Procedural History
[3]   On September 19, 2015, Qualls drove her car, with her four young children,

      even though she was intoxicated. Qualls’s erratic driving caused two

      pedestrians to jump off the roadway. Qualls then lost control of her vehicle and

      crashed into a ditch on the side of the road. The two pedestrians ran to check

      on the occupants of the crashed vehicle and found Qualls and her children

      inside. Qualls asked them not to call the police, but they had already done so.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019   Page 2 of 9
[4]   When the police arrived, Qualls was still in the driver’s seat. The responding

      officer noted the smell of alcohol coming from Qualls, who avoided eye contact

      with the officer and refused to speak. The officer helped Qualls out of the car, as

      the driver’s side door was pinned against a tree. Qualls ignored the officer’s

      questions but spoke to her children in slurred speech. She then gave one of her

      daughters a large amount of cash and told her to ignore the police and not obey

      their commands. Qualls also instructed her children to flee the scene. Qualls

      gave the police a false name, but they were able to ascertain her identity when

      they discovered an Indiana identification card in her pocket. The investigating

      detective put Qualls in her police vehicle to transport her to the police station so

      that she could conduct field sobriety tests in a more controlled environment.


[5]   On the way to the station, Qualls appeared to be “messing” with her handcuffs.

      Tr. Vol. II, p. 199. By the time they arrived at the station, Qualls had slipped

      out of one of her handcuffs and unbuckled her seat belt. The detective ordered

      Qualls out of the vehicle, but Qualls ignored her commands. Qualls then moved

      as if to exit the vehicle but instead took a swing at the detective, who jumped

      out of the way to avoid being hit. Qualls then ran away but eventually fell down

      in a nearby yard and the detective soon caught up with her. Still, Qualls flailed

      her arms and legs, striking the detective. When the detective grabbed one of

      Qualls’s arms, she bit her. She also grabbed and twisted the detective’s leg.

      Another officer arrived on the scene to assist, and the two were able to subdue

      Qualls and return her to the station.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019   Page 3 of 9
[6]   At the station, the detective read Qualls the Indiana implied consent statute and

      asked her permission to take a chemical test. Qualls did not respond, and the

      detective warned her that silence would be considered as a refusal to give

      consent. Nevertheless, the detective reread the implied consent statute to her

      several times, and Qualls finally stated that she did not want to consent because

      she believed the police would lie about the results. The detective then obtained

      a warrant to obtain a blood sample from Qualls to test for alcohol. The police

      took Qualls to the hospital where a blood sample was drawn. Subsequent

      testing revealed that Qualls blood alcohol content was 0.143.


[7]   On September 21, 2015, the State charged Qualls with Level 5 felony battery,

      Level 6 felony battery, Level 6 felony operating while intoxicated, Class A

      misdemeanor operating while intoxicated, two counts of Class C misdemeanor

      operating while intoxicated, and Class C misdemeanor operating a motor

      vehicle without ever having a license. On October 5, 2015, the State filed

      additional counts of Level 5 felony escape and Level 6 felony identity deception


[8]   A jury trial was held from November 14–17, 2017. At trial, the court granted

      Qualls’s motion to dismiss the charge of identity deception. During the trial, the

      prosecuting attorney brought it to the court’s attention that he had overheard

      Qualls tell her son to testify that he was driving. Qualls’s son denied this but did

      testify that he had driven and crashed the car. Qualls too testified that her son

      was driving. She also testified that she did not hit or bite the investigating

      detective. The jury ultimately found Qualls guilty of Level 5 felony escape, the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019   Page 4 of 9
       lesser-included offense of Level 6 felony battery, Level 6 felony operating while

       intoxicated, and Class A misdemeanor operating while intoxicated.

[9]    On February 26, 2018, the trial court held a sentencing hearing. The trial court

       found as aggravating that Qualls had a history of criminal activity and that

       Qualls had lied to the police and the court and suborned perjury by encouraging

       her son to lie in court. The trial court sentenced Qualls to six years on the Level

       5 felony escape conviction, with three years executed and three years suspended

       to probation. The court also sentenced Qualls to concurrent terms of three years

       on each of the Level 6 felony convictions1 and ordered those sentences to be

       served concurrently with the six-year sentence on the Level 5 felony. The trial

       court determined that the guilty verdict Class A misdemeanor operating while

       intoxicated “merged” with the Level 6 felony operating while intoxicated

       conviction and did not enter judgment or impose a separate sentence for that

       count. The trial court ordered Qualls to surrender herself on March 5, 2018, to

       begin serving the executed portion of her sentence.


[10]   On March 5, 2018, Qualls filed a motion requesting additional time to turn

       herself in. The trial court granted the motion and ordered Qualls to surrender

       herself no later than noon on March 12, 2018. On that deadline, Qualls’s




       1
         As acknowledged by the State, and discussed infra, the trial court could not properly sentence Qualls to
       three years on the Level 6 felony convictions, as the statutory maximum sentence for a Level 6 felony is two
       and one-half years. Ind. Code § 35-50-2-7(b).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019                  Page 5 of 9
       counsel appeared in court without Qualls to request an additional extension of

       time, which the trial court denied. Qualls did not surrender herself, and the trial

       court issued a warrant for her arrest. Qualls was eventually apprehended on

       March 20, 2018.

[11]   Apparently irritated by Qualls’s behavior, the prosecuting attorney filed a

       motion to vacate Qualls’s sentence and re-sentence her. The trial court held a

       hearing on the State’s motion on April 17, 2018. At this hearing, Qualls

       appeared in custody and without representation.2 Qualls requested counsel, but

       the trial court denied this request. The trial court then revised its previous

       sentencing order by vacating the suspended portion of Qualls’s six-year

       sentence on the Level 5 felony and ordering the original six-year sentence to be

       fully executed. Qualls now appeals.


                                               Right to Counsel
[12]   Qualls first claims that the trial court deprived her of the right to counsel at the

       sentencing hearing. We agree.

[13]   The Sixth Amendment to the United States Constitution guarantees a

       defendant a right to the assistance of counsel. Puckett v. State, 843 N.E.2d 959,

       965 (Ind. Ct. App. 2006) (citing J.W. v. State, 763 N.E.2d 464, 467 (Ind. Ct.




       2
        The trial court had permitted Qualls’s trial counsel to withdraw after Qualls filed a disciplinary complaint
       against him.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019                    Page 6 of 9
       App. 2002)). Courts have interpreted this right to mean that a defendant has a

       right to counsel at all critical stages of a criminal proceeding against her. Id.

       (citing Adams v. State, 693 N.E.2d 107, 108 (Ind. Ct. App. 1998)). Further, it is

       clear that sentencing is a critical stage of the proceedings at which a defendant

       is entitled to representation by counsel. Id.


[14]   Here, Qualls had an unquestionable constitutional right to counsel at the

       sentencing hearing. Yet the trial court denied her request for counsel. This was

       clearly improper. For this reason alone, we would be justified in reversing the

       trial court’s revised sentencing order. But under the unique circumstances of the

       present case, we also address Qualls’s claims regarding the propriety of the trial

       court revising her sentence at all.


                 Authority of the Trial Court Following Sentencing

[15]   Qualls also contends, and the State concedes, that the trial court had no

       authority to revisit its original sentencing order. “A trial judge generally has no

       authority over a defendant after sentencing.” State v. Harper, 8 N.E.3d 694, 696

       (Ind. 2014).3 After issuing a sentencing order, which is a final judgment, a trial

       court retains only such continuing jurisdiction as permitted by the judgment or

       granted to the court by statute or rule. State v. Porter, 729 N.E.2d 591, 592 (Ind.




       3
         The legislature may, however, grant a trial court authority, under certain circumstances, to modify a
       defendant’s sentence. See id. (identifying the “shock probation statute” as a “notable exception” to this
       general rule) (citing Ind. Code § 35-38-1-17(a); Dier v. State, 524 N.E.2d 789, 790 (Ind. 1988)).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019                     Page 7 of 9
       Ct. App. 2000). Instead, after a sentence is pronounced, jurisdiction over the

       defendant goes to the Department of Correction. Dier v. State, 524 N.E.2d 789,

       790 (Ind. 1988); Woodford v. State, 58 N.E.3d 282, 284 n.4 (Ind. Ct. App. 2016).


[16]   In the present case, the trial court cited no statutory authority for its alteration

       of its original sentencing order, and we are aware of none. Nor did the trial

       court’s original sentencing order reserve any authority to modify the sentence at

       a later date. Accordingly, we agree with Qualls and the State that the trial court

       exceeded its authority when it revised Qualls’s original sentence. We therefore

       reverse the trial court’s sentencing order and remand with instructions that the

       trial court re-impose its original sentence on the Level 5 felony conviction, i.e.,

       three years executed and three years suspended to probation.

[17]   As noted above, the trial court also exceeded its statutory authority by imposing

       three-year sentences on the two Level 6 felony convictions, as the statutory

       maximum sentence for a Level 6 felony is two and one-half years. See Ind.

       Code § 35-50-2-7(b). We therefore remand with instructions that the trial court

       correct this error by imposing concurrent sentences of two and one-half years

       on the Level 6 felony convictions. Qualls’s aggregate sentence will then be three




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019   Page 8 of 9
       years executed and three years suspended to probation, as provided in the trial

       court’s original sentencing order.4

[18]   Reversed and remanded for proceedings consistent with this opinion.


       Vaidik, C.J., and Crone, J. concur.




       4
         The State requests that we hold that Qualls has waived any claim regarding the appropriateness of her
       sentence by failing to present it in this appeal. However, we decline to issue what would essentially be an
       advisory opinion on this matter. The issue of waiver should be addressed if and when Qualls presents a claim
       of an inappropriate sentence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1127 | January 31, 2019                 Page 9 of 9
