                                                                              FILED
                                                                          Apr 03 2020, 6:17 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                       Ross G. Thomas
Attorney General of Indiana                               Indianapolis, Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                         April 3, 2020
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          19A-CR-1772
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
Samuel E. Vande Brake,                                    The Honorable Randy Williams,
Appellee-Defendant,                                       Judge
                                                          Trial Court Cause No.
                                                          79D01-1903-F1-5



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020                                 Page 1 of 15
                                 Case Summary and Issue
[1]   Following an incident in which Samuel Vande Brake shot his roommate, the

      State charged him with several battery offenses, criminal recklessness, and

      attempted murder. Before trial, the State filed a motion to add a firearm

      enhancement, which the trial court granted. A jury found Vande Brake guilty

      of aggravated battery, a Level 3 felony; battery by means of a deadly weapon

      and battery resulting in serious bodily injury, both Level 5 felonies; and

      criminal recklessness committed with a deadly weapon, a Level 6 felony. The

      jury found Vande Brake not guilty of attempted murder. After the jury

      delivered its verdicts, the trial court accepted the verdicts and thanked the jury.

      The jury was excused and permitted to leave the courtroom. The State then

      raised the firearm enhancement issue and the trial court responded that the

      enhancement was never discussed at any time prior to and during the trial. The

      trial court sua sponte dismissed the enhancement as “a matter of course” and the

      State did not object.


[2]   Following the dismissal of the enhancement, the State filed a motion to correct

      error requesting that the firearm enhancement be reinstated. The trial court

      denied the motion. At sentencing, the trial court entered judgment of

      conviction for aggravated battery, a Level 3 felony, and the remaining counts

      were vacated. The trial court sentenced Vande Brake to serve nine years in the

      Indiana Department of Correction (“DOC”), two of which were suspended to

      probation. The State appeals and raises one issue for our review, namely

      whether the trial court abused its discretion when it dismissed the firearm

      Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020          Page 2 of 15
      enhancement sua sponte. Concluding the trial court abused its discretion, we

      reverse the dismissal of the firearm enhancement and remand with instructions

      for the trial court to impanel a new jury to hear the enhancement charge.



                             Facts and Procedural History
[3]   Since June 2017, Vande Burke and his friend, Tristan Fernandez, had been

      living as roommates in Vande Burke’s parents’ basement in Lafayette, Indiana.

      On October 19, 2017, law enforcement officers responded to a report by Vande

      Burke’s mother, Barb, that Vande Burke had shot Fernandez in their basement.

      When officers arrived, they found Fernandez in the basement and rendered first

      aid until an ambulance arrived. Barb told officers that earlier that afternoon,

      Vande Burke was angry and told her he intended to kick Fernandez out of the

      house. At some point later, Barb heard “loud angry voices[,]” overheard Vande

      Brake say “get out,” and then heard a shot. Appellant’s Appendix, Volume 2 at

      17. Barb went downstairs where she saw Fernandez on the floor with blood on

      him; Vande Brake told Barb that Fernandez had been shot.


[4]   Fernandez was admitted to the hospital and treated for a gunshot wound to the

      chest. The next day, officers spoke with Fernandez, who stated he and Vande

      Brake had been living in the basement of Vande Brake’s parents’ home. On

      October 19, Vande Brake got upset and told Fernandez to pack his things and

      leave the residence. As Fernandez was packing, Vande Brake came downstairs,

      became “hostile and began yelling at him and at one point . . . pulled out a

      handgun.” Id. Vande Brake put the gun to Fernandez’s chest and Fernandez

      Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020        Page 3 of 15
      pushed the gun away and told Vande Brake not to pull the gun on him. Vande

      Brake then shot him in the chest.1


[5]   On October 26, 2017, the State charged Vande Brake with the following: Count

      I, aggravated battery, a Level 3 felony; Count II, battery by means of a deadly

      weapon, a Level 5 felony; Count III, battery resulting in serious bodily injury, a

      Level 5 felony; and Count IV, criminal recklessness, a Level 6 felony, under

      Case No. 79D01-1710-F3-26. On November 3, the State filed a motion to add

      a “use of firearm” sentence enhancement. The trial court granted the motion

      and directed the magistrate to conduct an initial hearing on the new count. See

      id. at 24-26.


[6]   Following an initial hearing, the magistrate issued an order stating that “[a]ll

      proposed final instructions shall be submitted prior to the commencement of

      trial but need not be exchanged with opposing counsel until the conclusion of

      the evidence in this case.” Id. at 27. Vande Brake was ordered not to have any

      contact with the victim in this case. In addition, the order required that an

      objection to any portion of the order must be made in writing and filed within

      fifteen days of the order’s entry. See id. at 30. No objections were filed.


[7]   Vande Brake subsequently filed a Notice of Self-Defense. On December 28,

      2018, the State filed a Motion to Add Additional Count of attempted murder, a




      1
        As the transcript and corresponding exhibits from the jury trial were not included in the record on appeal,
      the underlying facts set forth in the first two paragraphs are derived solely from the probable cause affidavit
      contained in the State’s Appendix.

      Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020                                    Page 4 of 15
      Level 1 felony. In its motion, the State also requested that the attempted

      murder count be listed as Count V and the previously filed firearm

      enhancement be listed as Count VI. See id. at 55. Over Vande Brake’s

      objection, the trial court granted the State’s motion and later ordered the clerk

      to assign a new cause number to the case. On March 26, 2019, all counts from

      the previous case number were transferred to a new case number that also

      included the attempted murder count: Case No. 79D01-1903-F1-5. See id. at 66-

      67. Notably, neither Chronological Case Summary (“CCS”) lists the firearm

      enhancement as a charged offense in the Case Information section. See id. at 2,

      67. However, the CCS for Case No. 26 reflects the State’s motion to add the

      enhancement and the trial court’s grant of that motion. See id. at 4-5. The State

      never brought this to the trial court’s attention, nor did it mention the firearm

      enhancement or the need for bifurcated proceedings at any pre-trial hearings in

      which trial procedure was discussed.


[8]   Vande Brake filed his proposed jury instructions on June 12, 2019. The State

      filed its proposed preliminary and final instructions the next day, none of which

      mentioned the firearm enhancement or bifurcation. The trial court provided its

      preliminary instructions the same day. A jury trial was held on June 18-20,

      2019. Ultimately, the jury found Vande Brake guilty of Counts I through IV

      and not guilty of Count V (attempted murder). Following the verdicts, the trial

      court accepted the verdicts and thanked the jury:


              The Court:                Court accepts the verdicts enters judgment of
                                        conviction as to counts one, two, three and

      Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020             Page 5 of 15
                                        four and enters of acquittal as to count five.
                                        Ladies and gentleman I want to thank you, it
                                        took almost an entire three days. I hope you
                                        – the things I talked about when you first got
                                        here I hope they proved to be true in terms of
                                        how important this process is and that going
                                        through the process is something that not
                                        necessarily that you would enjoy but you
                                        understand the importance and that you
                                        would be glad that you did it. We all thank
                                        you for your time and efforts throughout this
                                        process. I would ask that when you are
                                        excused if you could please wait for me back
                                        in the jury room, and I’ll be back in there in
                                        just a couple minutes. Alright.


              Court Bailiff:            All rise.


              [At this time the jury is excused and permitted to leave the
                            courtroom]


              The Court:                You may be seated, thank you.


      Transcript, Volume 1 at 5-6.


[9]   However, after this, the State immediately said, “Judge, there’s a firearm

      enhancement that would attach to the aggravated battery count.” Id. at 6. The

      trial court responded:


              We’ve never talked about that. It was not discussed. It was not
              discussed at any time during the course of this trial. It was not
              discussed prior to and in preparation of this trial. I – there was
              nothing stated about a jury. The jury has now been excused.
              The defendant has not waived jury as to that. The Court
      Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020              Page 6 of 15
               dismisses it as a matter of course. Okay, seventy-two hours,
               three days to confer about what will happen if that was the case.
               We were here last night after the close of evidence, since 11:00
               o’clock, 10:00 o’clock today, we’ve had the opportunity to
               discuss that matter and nothing has been raised. . . .


       Id.2 The State did not respond or object to the dismissal of the enhancement at

       this time.


[10]   Instead, on June 27, the State filed a Motion to Correct Error requesting that

       the trial court reinstate the firearm enhancement. In support of reinstatement,

       the State relied on Indiana Code section 35-50-2-11(f), which states that if an

       individual is convicted of an offense defined by subsection (b) – here,

       aggravated battery – “in a jury trial, the jury shall reconvene to hear evidence in

       the enhancement hearing.” The State argued that “[a]t no point prior to the

       trial or during the trial proceedings did defense counsel claim the enhancement

       was untimely filed, or that he lacked notice that it would be tried, or that there

       was any procedural defect in the filing.” Appellant’s App., Vol. 2 at 90. The

       State suggested the following remedies with respect to the requested

       reinstatement of the enhancement:


               a.     Empanel a new jury for the purposes of hearing evidence,
               deliberating upon, and rendering a decision on the firearm
               enhancement.




       2
         Notably, the same judge who granted the State’s motion to add the firearm enhancement also presided over
       the trial and dismissed the enhancement. See Appellant’s App., Vol. 2 at 26; see generally Tr., Vol. 1.

       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020                             Page 7 of 15
                        i.      In Carter v. State, the trial court decided after the
                        original jury returned guilty verdict [sic] that its calendar
                        did not allow for an immediate Habitual Offender trial, so
                        it dismissed the original jury and called a new jury several
                        weeks later for a separate Habitual Offender trial. Carter v.
                        State, 505 N.E.2d 798, 801 (Ind. 1987).


                        ii.     In Wade v. State, the trial court decided that the first
                        jury had done enough work when it returned a guilty
                        verdict after a five-day trial and that it would be
                        “inconvenient” to have them wait over a weekend to do
                        the Habitual Offender portion of the trial. Therefore, the
                        Court dismissed the first jury and empaneled a new jury
                        over six weeks later to do the Habitual Offender portion of
                        the trial. Wade v. State, 718 N.E.2d 1162, 1169 (Ind. Ct.
                        App. 1999).


               b.   Allow [Vande Brake] the opportunity to waive the
               enhancement portion of the jury trial to a bench trial.


               c.      Allow [Vande Brake] the opportunity to admit to the
               enhancement. During the trial, [Vande Brake] admitted to using
               the firearm to shoot the victim while claiming self-defense.
               Ultimately, the jury rejected his defense. With this only being an
               enhancement, admitting to the enhancement would not affect
               [Vande Brake]’s appellate rights – should the count to which the
               enhancement attaches get reverse, so too would the
               enhancement.


       Id. at 91.


[11]   Vande Brake responded, requested that the trial court deny the State’s motion

       to correct error, and asserted:



       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020               Page 8 of 15
                4.     The trial is over. There is no jury to call back. There is no
                time to have yet another jury trial before sentencing.


                5.    There before trial the State of Indiana submitted
                Preliminary Instructions that did not mention a single word
                about bifur[ca]tion or the Sentencing Enhancement.


                6.     That during the course of the trial, despite the State being
                represented by two (2) Deputy Prosecuting Attorneys, was not a
                single, solitary word about the Firearms Enhancement was
                mentioned by the State and not a word before the dismissal of the
                jury.


       Id. at 93. The trial court subsequently denied the State’s motion to correct

       error.


[12]   After the trial court’s denial but prior to sentencing, the State filed two motions

       – a Motion to Stay Sentencing Pending Appeal and a Motion to Reconsider

       State’s Motion to Correct Error – but later withdrew these motions at the

       sentencing hearing, which was held on July 19, 2019. See id. at 97-98, 101-02.

       At sentencing, the trial court entered judgment of conviction on Count I only,

       aggravated battery, a Level 3 felony, and vacated Counts II, III, and IV. The

       trial court sentenced Vande Brake to serve nine years, seven years executed in

       the DOC and two years suspended to probation. See Sentencing Order at 2.

       The State now appeals.



                                  Discussion and Decision


       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020           Page 9 of 15
                                       I. Standard of Review
[13]   Here, the State appeals from a negative judgment.


               A judgment entered against a party bearing the burden of proof is
               a negative judgment. On appeal from a negative judgment, this
               Court will reverse the trial court only if the judgment is contrary
               to law. A judgment is contrary to law if the evidence leads to but
               one conclusion and the trial court reached an opposite
               conclusion. In determining whether the trial court’s judgment is
               contrary to law, we will consider the evidence in the light most
               favorable to the prevailing party, together with all reasonable
               inferences therefrom. We neither reweigh the evidence nor judge
               the credibility of witnesses. Further, “[w]hen appealing from a
               negative judgment, a party has a heavy burden to establish to the
               satisfaction of the reviewing court that there was no basis in fact
               for the judgment rendered.”


       Burnell v. State, 56 N.E.3d 1146, 1149-50 (Ind. 2016) (internal citations omitted).


                        II. Dismissal of Firearm Enhancement
[14]   The State argues the trial court improperly dismissed the firearm enhancement

       because it lacked the authority to do so. We review a trial court’s decision to

       dismiss a charging information for abuse of discretion. State v. Davis, 898

       N.E.2d 281, 285 (Ind. 2008). And we will reverse only where the decision is

       clearly against the logic and effect of the facts and circumstances. State v. Isaacs,

       794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003).


[15]   “Ordinarily, a trial court may not sua sponte dismiss an action unless the court

       lacks jurisdiction or is otherwise authorized by statute or the rules of


       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020          Page 10 of 15
       procedure.” Zavodnik v. Richards, 984 N.E.2d 699, 703 (Ind. Ct. App. 2013)

       (internal quotation omitted). Pursuant to the Indiana Code, upon motion by the

       defendant or State, a trial court has the authority to dismiss an indictment or

       information based on any of the enumerated statutory grounds. Ind. Code §§

       35-34-1-4, 35-34-1-13. In addition, our supreme court has recognized a trial

       court’s “inherent authority to dismiss criminal charges where the prosecution of

       such charges would violate a defendant’s constitutional rights.” Davis, 898

       N.E.2d at 285.


[16]   With respect to a firearm enhancement, “[t]he state may seek, on a page

       separate from the rest of a charging instrument, to have a person who allegedly

       committed an offense sentenced to an additional fixed term of imprisonment if

       the state can show beyond a reasonable doubt that the person knowingly or

       intentionally used a firearm in the commission of the offense.” Ind. Code § 35-

       50-2-11(d). An “offense” is defined as (1) a felony under Indiana Code article

       35-42 that resulted in death or serious bodily injury; (2) kidnapping; or (3)

       criminal confinement as a Level 2 or Level 3 felony. Ind. Code § 35-50-2-11(b).

       If a person is convicted of an offense in subsection (b) of the statute “in a jury

       trial, the jury shall reconvene to hear evidence in the enhancement hearing.”

       Ind. Code § 35-50-2-11(f). And if the State proves the firearm enhancement, the

       trial court may impose an additional fixed term of imprisonment of between

       five and twenty years. Ind. Code § 35-50-2-11(g). There is no dispute that the

       State properly filed the enhancement or that Vande Brake’s conviction is a

       qualifying offense.


       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020         Page 11 of 15
[17]   Here, the State contends that once Vande Brake was convicted of the predicate

       offense, namely aggravated battery, and the State reminded the trial court that

       the prerequisite for the enhancement phase was met, the trial court was then

       required to reconvene the jury. The State further asserts that the trial court’s

       “request for the jury to wait outside for him to confer with counsel was

       consistent with the court still contemplating the possibility of a second phase.”

       Brief of Appellant at 10 n.1.


[18]   Vande Brake argues that “[w]hile the State would have been entitled to a

       bifurcated trial and a second phase following the jury’s verdict, it waived that

       procedure by failing to follow court rules in the preparation and conduct of the

       trial.” Brief of Appellee at 8. In support of this proposition, Vande Brake relies

       on the trial court’s Initial Hearing Order issued by the magistrate which, in part,

       stated that “[a]ll proposed final instructions shall be submitted prior to the

       commencement of trial but need not be exchanged with opposing counsel until

       the conclusion of the evidence in this case.” Appellant’s App., Vol. 2 at 27.

       Vande Brake notes that under Indiana’s Pattern Jury Instructions, “[a] proper

       second stage of a bifurcated trial would require that such instructions be given.”

       Br. of Appellee at 10. The State counters that they are not required by rule or

       statute to submit jury instructions and instead, jury instructions are left to the

       discretion of the trial court.


[19]   We agree that neither the trial court order nor the trial rules required that the

       State offer instructions on the enhancement phase. See Denton v. State, 496

       N.E.2d 576, 581 (Ind. 1986); Ind. Trial Rule 51(C) (“At the close of the

       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020         Page 12 of 15
       evidence and before argument each party may file written requests that the court

       instruct the jury on the law as set forth in the requests.” (emphasis added)); T.R.

       51(D). Here, the State properly filed a motion to add the firearm enhancement

       count; the trial court granted the motion and therefore, was clearly aware of the

       enhancement charge; neither the State nor Vande Brake moved to dismiss the

       enhancement; the enhancement was pending throughout this case; and the trial

       court lacked a legitimate basis for dismissing the enhancement sua sponte. We

       therefore conclude the trial court abused its discretion when it dismissed a

       legitimate and pending charge.


[20]   We pause briefly to comment on the State’s shortcomings in this matter at the

       trial court level. The heart of this dispute is rooted in the State’s tenuous

       performance with respect to the enhancement. Except for the initial filing and

       the trial court’s grant of the firearm enhancement, there is no evidence in the

       record that the State raised the firearm enhancement or bifurcation in any

       manner – it was not discussed prior to or during trial, was not included in any

       proposed preliminary or final instructions, and was not included in the trial

       court’s preliminary or final instructions. Furthermore, the State failed to object

       to the trial court’s dismissal of the firearm enhancement on the spot and while,

       presumably, the jury was still in the courthouse, waiting instead to file a motion

       to correct error nearly one week later. And despite filing the enhancement

       count, the State was careless in failing to observe that the count had not been

       added to either CCS. We emphasize that parties bear a responsibility to

       manage their cases and assist the court; a party may not sit idly by and


       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020         Page 13 of 15
       subsequently place the blame elsewhere for their own shortcomings. Although

       the State may not have been required to submit jury instructions on the issue,

       the State, having the burden of proof in both phases, had an obligation to raise

       the issue in a timely manner. But for the enhancement statute’s requirement

       that the jury reconvene to hear the enhancement phase, this issue would have

       been waived under these circumstances. We therefore take this opportunity to

       remind the State to be mindful of this responsibility in the future.


[21]   Nonetheless, our jurisprudence permits the trial court to impanel a new jury on

       the enhancement phase as an appropriate remedy. See Carter v. State, 505

       N.E.2d 798, 801 (Ind. 1987) (no error when the a trial court decided to impanel

       a new jury for the habitual offender phase because the trial judge’s calendar did

       not allow a trial on the habitual offender phase for several weeks); Wade v. State,

       718 N.E.2d 1162, 1169 (Ind. Ct. App. 1999) (holding that, when necessary, a

       trial court is authorized to impanel a new jury to hear a habitual charge), trans.

       denied. And as such, we reverse the trial court’s dismissal of the enhancement

       and remand with instructions that the trial court impanel a new jury to try

       Vande Brake on the enhancement.



                                                Conclusion
[22]   We conclude that the trial court abused its discretion in dismissing the firearm

       enhancement. Accordingly, we reverse the dismissal of the firearm

       enhancement and remand to the trial court with instructions to impanel a new

       jury to hear the enhancement charge.

       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020        Page 14 of 15
[23]   Reversed and remanded.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020   Page 15 of 15
