MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             May 25 2017, 8:42 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Sean C. Mullins                                         Curtis T. Hill, Jr.
Public Defender                                         Attorney General of Indiana
Crown Point, Indiana
                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Harvey Stephens,                                        May 25, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A04-1612-CR-2927
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G04-0104-DF-90



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017            Page 1 of 8
                                             Case Summary
[1]   Harvey Stephens (“Stephens”) brings a belated appeal pursuant to Indiana Post

      Conviction Rule 2 to challenge the six-year aggregate sentence imposed in 2002

      following his pleas of guilty to Theft1 and Attempted Theft,2 Class D felonies.

      He presents three issues, which we consolidate and restate as a single issue:

      whether the sentence is of such dubious validity that it constitutes fundamental

      error.3 We reverse and remand for resentencing.



                                   Facts and Procedural History
[2]   The facts underlying Stephens’ guilty pleas were described in the Stipulated

      Factual Basis as follows in pertinent part:

                 On April 2, 2001 at a Wal-Mart Store, Hobart, Indiana, Harvey
                 Stephens with his accomplices, Wendy Smith and Patricia Price,
                 stole money from a store cash register by using IBM keys; and,
                 on April 2, 2001 at a Target Store, Hobart, Indiana, Harvey



      1
          Ind. Code § 35-43-4-2.
      2
          I. C. §§ 35-43-4-2, 35-41-5-1.
      3
        We are unable to address the issue of inappropriateness, because the record – lacking a complete verified
      criminal history – is insufficient to permit meaningful review of the character of the offender pursuant to
      Indiana Appellate Rule 7(B).
      Stephens also asserted that his aggregate sentence should be capped at four years, the maximum sentence for
      the next highest felony, because his offenses constituted a single criminal episode, defined as “offenses or a
      connected series of offenses that are closely related in time, place, and circumstance.” I. C. § 35-50-1-2(b).
      The Stipulated Plea and Agreement does not provide for a sentencing cap of four years. However, the parties
      agreed that they were “free to fully argue their respective positions as to the sentence to be imposed.” (App.
      Vol. II at 33.) Thus, Stephens was not foreclosed from arguing that his offenses were a single continuing
      offense. Nonetheless, the Stipulated Factual Basis does not independently provide sufficient factual detail to
      establish the statutory criteria of close relation in time, place, and circumstance.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017                Page 2 of 8
              Stephens with his accomplices, Wendy Smith and Patricia Price,
              attempted to steal money from a cash register by using IBM keys.
              However, they fled the store when approached by store
              employees and were later stopped by the police and arrested.


      (App. Vol. II at 35.)


[3]   On January 17, 2002, Stephens pleaded guilty to Theft and Attempted Theft

      pursuant to a Stipulated Plea and Agreement. Therein, the State agreed not to

      pursue a habitual offender enhancement and sentencing was left to the

      discretion of the trial court. The trial court accepted the pleas and ordered the

      compilation of a Presentence Investigation Report (“PSI”).


[4]   On February 27, 2002, the trial court conducted a sentencing hearing. At the

      commencement of the hearing, the following discussion ensued:

              Court: The Defendant is in custody in the State of Ohio and
              wishes to be sentenced in his absence; is that correct, Mr. Clark?


              Defense Attorney: Yes, it is, your Honor.


              Court: All right. The probation department has sought to –
              sought a continuance in this matter, because records they
              requested from out of state have not been tendered. Therefore,
              the presentence report is incomplete, in their opinion. But even
              given that fact, the Defendant does wish to be sentenced in
              absentia; is that correct?


              Defense Attorney: That’s correct.


              Court: All right. Any corrections to the presentence report?

      Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017   Page 3 of 8
                  Defense Attorney: I haven’t even seen what this thing has, but I
                  have no additional corrections. And, unfortunately, we can’t
                  make any deletions, so we have none.


                  Court: All right. Any changes by the State:


                  Prosecutor: Not from the State, your Honor.


                  Court: All right. Any evidence for the Defendant?


                  Defense Attorney: No evidence, your Honor.


                  Court: Evidence for the State?


                  Prosecutor: No, your Honor.


      (Sent. Tr. at 3-4.) The trial court heard brief argument from counsel, with each

      counsel alleging facts outside the Stipulated Factual Basis. Thereafter, the trial

      court advised the parties that he had reviewed “the criminal history

      attachment” or “triple I” report. (Sent. Tr. at 5.) The trial court imposed the

      maximum sentence possible, a three-year sentence for Theft and a three-year

      sentence for Attempted Theft,4 to be served consecutively.


[5]   Detainers were placed on Stephens during his incarceration in Ohio. On

      October 21, 2016, he appeared in court in Indiana and was advised as to his

      post-conviction rights and rights to an attorney. With assistance from a public



      4
          I. C. § 35-50-2-7.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017   Page 4 of 8
      defender, on December 16, 2016, Stephens filed a petition seeking permission to

      bring a belated appeal. On December 20, 2016, the trial court granted

      Stephens’ petition. He now belatedly appeals his sentence.



                                      Discussion and Decision
[6]   Stephens and the State agree that the instant sentence was imposed at the

      culmination of irregular proceedings. The PSI, deemed incomplete by the

      probation department, had apparently not been provided to defense counsel

      prior to the sentencing hearing.5 In light of the probation department’s request

      for a continuance, the trial court asked defense counsel to assess his client’s

      wish to proceed, although Stephens was absent and not consulted. Although

      the parties had agreed that Stephens had a criminal history, apparently

      sufficient to support the filing of a habitual offender allegation, three versions of

      that history had been compiled, and the details were not established by

      admissible evidence. Defense counsel essentially abdicated his responsibility as




      5
        Indiana Code Section 35-38-1-12 provides that the trial court is to advise the defendant or his counsel of the
      factual contents and conclusions of the PSI or furnish a copy of the PSI “sufficiently in advance of sentencing
      so that the defendant will be afforded a fair opportunity to controvert the material included.”
      The purpose of the PSI is to provide information to the court for use at individualized sentencing. Yates v.
      State, 429 N.E.2d 992, 994 (Ind. Ct. App. 1982). “Of course, the pre-sentence report must contain only
      accurate information and therefore, a defendant is given the opportunity to refute the information in the
      report.” Id.
      In Gilbert v. State, 982 N.E.2d 1087, 1092 (Ind. Ct. App. 2013), a panel of this Court found that the
      defendant’s due process rights had been violated when neither he nor his counsel was provided with a PSI
      until the day of the sentencing hearing.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017                 Page 5 of 8
      an advocate for his absent client to participate in the determination of a reliable

      and reviewable sentence.


[7]   On appeal, the State argues that Stephens’ counsel failed to object to any

      irregularity, thereby waiving the matter for appellate review, while Stephens

      contends that his sentence constitutes fundamental error. The doctrine of

      fundamental error exists as an exception to the contemporaneous objection rule

      and permits consideration on appeal of errors to which no objection was made

      at trial. Stewart v. State, 567 N.E.2d 171, 174 (Ind. Ct. App. 1991), trans. denied.

      “[T]he error must be one such that the defendant could not possibly have had a

      fair trial or such that this court is left with the conviction that the verdict or

      sentence is clearly wrong or of such dubious validity that justice cannot permit

      it to stand.” Id.


[8]   The PSI of record is incomplete, although it includes a summary:


              Defendant has extensive prior contact with the criminal justice
              system. He has no known juvenile adjudications. Regarding the
              total number of misdemeanor and felony convictions, this
              information is not yet available. According to the NCIC, the
              defendant has numerous arrest[s] throughout the state of Ohio.
              In addition, it is believed that he has been incarcerated.


      (App. Vol. II at 93.)


[9]   Also appearing in the Appendix is a form titled “Record Check by Prosecuting

      Attorney.” (App. Vol. II at 12.) The checked boxes on the form indicate that

      Stephens was not on probation or parole, did not have other charges pending,

      Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017   Page 6 of 8
       and was not on bond. Prior felony convictions were listed as a 1981 conviction

       in Ohio for Forgery, a federal conviction in 1983 for Forging Endorsement on

       U.S. Bond, a 1991 conviction in Ohio for Theft and a 1991 conviction in Ohio

       for Carrying a Concealed Weapon. However, the sentencing transcript does

       not suggest that this form was submitted as an evidentiary exhibit.


[10]   Based upon the trial court’s comments at sentencing, it appears that he wholly

       relied upon a third source, a “triple I report,” outside the evidentiary record or

       appendix. (Sent. Tr. at 5.) The sentencing order recites Stephens’ prior

       criminal history as a conviction for “possession of CDS, a felony,” Forgery in

       1985, Forgery in 1989, and other convictions – at unspecified times – for Theft,

       Robbery, Attempted Grand Theft, Forgery, and Carrying a Concealed

       Weapon. (Sent. Tr. at 7-8.) Also, the trial court found Stephens’ use of aliases,

       multiple Social Security numbers, and multiple dates of birth to be an

       aggravating circumstance. However, this information was not in the PSI or a

       separate evidentiary exhibit.


[11]   Having ordered a PSI, the trial court refused to grant a continuance for its

       completion, disregarded the incomplete PSI, and assigned credibility to an

       unverified attachment described as a Triple I report. Stephens was afforded no

       opportunity to refute the information therein. Nor was he afforded any

       meaningful opportunity to respond to the varying accounts of his criminal

       history. Also, due to the lack of dates of many purported offenses, defense

       counsel was unable to make any argument as to remoteness. Under these



       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017   Page 7 of 8
       circumstances, we conclude that the sentence is of such dubious validity that it

       constitutes fundamental error.



                                               Conclusion
[12]   We reverse the sentence and remand for a new sentencing hearing predicated

       upon compliance with Indiana Code Sections 35-38-1-8 and 35-38-1-12.


[13]   Reversed and remanded.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017   Page 8 of 8
