Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              FILED
                                                            Apr 12 2012, 8:49 am
any court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
collateral estoppel, or the law of the case.                     court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ANA M. QUIRK                                      GREGORY F. ZOELLER
Public Defender                                   Attorney General of Indiana
Muncie, Indiana
                                                  J.T. WHITEHEAD
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT E. STANLEY,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 18A02-1109-CR-834
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                         The Honorable Richard A. Dailey, Judge
                             Cause No. 18C02-1006-FD-80



                                        April 12, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Robert E. Stanley appeals his conviction for home improvement fraud, as a Class

D felony, following a jury trial. Stanley raises four issues for our review, which we

restate as the following three issues:

       1.     Whether the trial court erred when it tried Stanley in absentia;

       2.     Whether the trial court committed fundamental error when it
              permitted Stanley to twice appear without counsel; and

       3.     Whether the State presented sufficient evidence to support Stanley’s
              conviction.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On March 18, 2010, Stanley knocked on the door of the home of Willard and

Mary Barlage, an elderly couple in Muncie. When Willard answered the door, Stanley

told him that he had done repair work for the Barlages in the past and that he had noticed

the Barlages’ planter was broken. Stanley then offered to fix the planter for between

ninety and one-hundred dollars, and Willard agreed. After a few hours of work, Stanley

then told the Barlages that the total amount due was $1,850. Shortly after paying Stanley,

the Barlages decided to call the police.

       On June 2, 2010, the State charged Stanley with home improvement fraud, as a

Class D felony. The State also alleged Stanley to be an habitual offender. On June 2,

2011, the court held a status hearing, at which Stanley’s counsel was present but Stanley

was not. Stanley’s counsel informed the court as follows: “Judge . . . [t]his case is

scheduled for a Jury Trial on June 20th[] of this month . . . . My understanding . . . was


                                             2
that Mr. Stanley previously appeared in Court[] and was notified of that Jury Trial date in

person.” Transcript at 6-7. Stanley’s counsel then informed the court that he had

attempted to serve notice of the trial date at Stanley’s last known address, but the notice

was returned.

       Eighteen days later, the court held Stanley’s jury trial as scheduled. Stanley failed

to appear, and the jury found him guilty as charged. Stanley was also found to be an

habitual offender.

       Two days after his jury trial, the court learned that Stanley was being held in the

Madison County Jail.     The court ordered the Delaware County Sheriff to transport

Stanley to the courtroom “as soon as possible.” Appellant’s App. at 63. On July 5,

Stanley was brought before the court, and the court informed him that he had been tried

in absentia and found guilty. Stanley stated that he had been in jail, and he then waived

his right to a sentencing hearing within thirty days and informed the court that he would

hire his own counsel before his sentencing hearing. The court responded, “All right . . . .

[I]f between now and Sentencing . . . you decide that you can’t afford counsel, you’re

going to need to let the Court know.         You understand that, that’s your burden.”

Transcript at 92. Stanley agreed that he understood that was his burden.

       The court held Stanley’s sentencing hearing on August 25. That day, Stanley

informed the court that he needed court-appointed counsel. The court denied Stanley’s

request as untimely. The court then sentenced Stanley to an aggregate term of seven and

one-half years executed. This appeal ensued.




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                              DISCUSSION AND DECISION

                                Issue One: Trial In Absentia

         Stanley first contends that the trial court erred when it tried him in absentia.

Specifically, Stanley contends that he had no actual knowledge of the trial date and that

he had no chance to explain his absence at the subsequent hearing on July 5. We cannot

agree.

         As our supreme court has stated:

         A defendant in a criminal proceeding has a right to be present at all stages
         of his or her trial. U.S. Const. amend. VI; Ind. Const. art. I, § 13; Fennell v.
         State, 492 N.E.2d 297, 299 (Ind. 1986). A defendant may waive this right
         and be tried in absentia if the trial court determines that the defendant
         knowingly and voluntarily waived that right. Freeman v. State, 541 N.E.2d
         533, 535 (Ind. 1989); Fennell, 492 N.E.2d at 299. The best evidence that a
         defendant knowingly and voluntarily waived his or her right to be present at
         trial is the “defendant’s presence in court on the day the matter is set for
         trial.” Fennell, 492 N.E.2d at 299 (citing Brown v. State, 181 Ind. App.
         102, 390 N.E.2d 1058 (1979)).

Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997).               Further, “[a] defendant’s

explanation of his absence is a part of the evidence available to this Court on the question

of whether it was error to try him in absentia.” Id. (quotations omitted).

         Here, according to the statements of Stanley’s trial counsel at the June 2, 2011,

status hearing, Stanley was personally informed of the trial date. See Transcript at 6-7.

Nonetheless, Stanley did not appear for his trial on the scheduled date. As such, the trial

court did not err when it concluded that Stanley knowingly and voluntarily waived his

right to be present at trial. See Lampkins, 682 N.E.2d at 1273.

         Stanley also argues that he was denied an opportunity to explain his absence at the

July 5 hearing. But at that hearing Stanley informed the court that he was in the Madison
                                                4
County Jail during his trial. Thus, he was not denied an opportunity to explain his

absence when he did in fact give an explanation. We also agree with the State that,

Stanley’s statements to the trial court aside, the record does not unequivocally

demonstrate that he was actually in jail on his trial date. And if he were in jail, the record

is clear that he did not inform the trial court despite his actual knowledge of his imminent

trial date. Accordingly, the record supports the conclusion that Stanley knowingly and

voluntarily waived his right to be present at his trial.

                               Issue Two: Right to Counsel

       Stanley next contends that the trial court committed fundamental error when it

denied him his right to counsel during the July 5 hearing and the August 25 sentencing

hearing. As this court has stated on several occasions:

       The fundamental error doctrine is extremely narrow. Sandifur v. State, 815
       N.E.2d 1042, 1046 (Ind. Ct. App. 2004), trans. denied. To qualify as
       fundamental error, an error must be so prejudicial to the rights of the
       defendant as to make a fair trial impossible. Id. Further, the error must
       constitute a blatant violation of basic principles, the harm, or potential for
       harm must be substantial, and the resulting error must deny the defendant
       fundamental due process. Id.

Rowe v. State, 867 N.E.2d 262, 266 (Ind. Ct. App. 2007).

       We fail to see how either of the alleged errors was such a blatant violation that

they denied Stanley fundamental due process. He does not suggest, and we cannot

discern, how having counsel present at the July 5 hearing would have mattered. As noted

above, he gave his explanation for his absence at that hearing, which was the apparent

purpose for the hearing. And he plainly waived his right to counsel for the August 25

sentencing hearing, as the trial court determined, when he waited until that day to request


                                               5
court-appointed counsel. It is well established that the right to counsel is waivable, and

Stanley does not suggest that he was not properly advised of his right.          See, e.g.,

Frederick v. State, 658 N.E.2d 941, 943-44 (Ind. Ct. App. 2000). We hold that neither of

Stanley’s allegations regarding the right to counsel demonstrates fundamental error.

                            Issue Three: Sufficient Evidence

       Finally, Stanley asserts that the State failed to present sufficient evidence to

support his conviction for home improvement fraud.            When reviewing a claim of

sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the

witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the

probative evidence supporting the verdict and the reasonable inferences that may be

drawn from that evidence to determine whether a reasonable trier of fact could conclude

the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence

of probative value to support the conviction, it will not be set aside.

       To prove home improvement fraud, as a Class D felony, the State was required to

show that Stanley was a home improvement supplier who entered into a home

improvement contract with the Barlages, that both Willard and Mary were over sixty

years of age, and that in contracting with them Stanley knowingly misrepresented a

material fact relating to the terms of the contract or promised performance that he did not

intend to perform or knew would not be performed. See Ind. Code §§ 35-43-6-12, -13.

On appeal, Stanley asserts that “the witnesses presented by the State [the Barlages] failed

to identify the defendant as the individual who came to the house to perform work.”

Appellant’s Br. at 17.


                                              6
        Ignoring the fact that Stanley absented himself from his trial, and thereby denied

the witnesses the opportunity to point him out to the jury, we cannot agree that the State

failed to present sufficient evidence of Stanley’s identity.                Both Willard and Mary

testified that they saw Stanley, and another State witness, Muncie Police Officer Jesse

Winningham, testified that both Willard and Mary picked Stanley’s photograph out of an

photo array. That evidence is sufficient to support the verdict.1

        Affirmed.

RILEY, J., and DARDEN, J., concur.




        1
           The State suggests that the trial court’s sentencing order “might” need to be clarified because
the court ordered the habitual offender enhancement to run “consecutive” to the felony conviction.
Appellee’s Br. at 27. But the State also recognizes that, “[o]f course[,] the habitual offender part of the
sentence is an enhancement, and not a separate sentence.” Id. Stanley does not appeal the sentencing
order or otherwise suggest that it is unclear. Accordingly, we do not believe a remand for clarification is
necessary in this case.
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