MEMORANDUM DECISION                                              FILED
                                                            Jun 21 2016, 5:40 am

Pursuant to Ind. Appellate Rule 65(D),                           CLERK
this Memorandum Decision shall not be                        Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court
regarded as 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
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Brooklyn, Indiana                                        Attorney General of Indiana

                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Middleton,                                          June 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         28A05-1602-CR-282
        v.                                               Appeal from the Greene Superior
                                                         Court
State of Indiana,                                        The Honorable Dena A. Martin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         28D01-1601-F6-6



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 28A05-1602-CR-282 | June 21, 2016    Page 1 of 7
[1]   John Middleton appeals the sentence imposed following his guilty plea to two

      counts of Level 6 felony theft. He appeared at sentencing via a two-way video

      from the jail without a written waiver of his right, under Ind. Code § 35-38-1-

      4(a), to be present in person for sentencing. This procedure was a clear

      violation of statute, Indiana Administrative Rule 14(A), and our Supreme

      Court’s recent directive. Because Middleton did not object to utilization of this

      improper procedure, however, he labors under the heavy burden of establishing

      fundamental error.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On January 7, 2016, the State charged Middleton with two counts of Level 6

      felony theft for stealing televisions from Walmart on two separate occasions.

      Middleton appeared for his initial hearing by two-way video from the jail on

      Friday, January 8, 2016. Middleton informed the trial court that he wished to

      proceed without counsel and to plead guilty. The court informed Middleton

      that it was not prepared to accept his guilty plea that day but could set a hearing

      for the following Monday, January 11, 2016. Middleton agreed and requested

      that he also be sentenced on Monday. The court then set the hearing as

      discussed and indicated “we will just do it by vie [sic] the two way video just

      like we are today okay?” Transcript at 11. Middleton did not object.


[4]   On January 11, 2016, Middleton appeared, pro se, for his change of plea

      hearing and sentencing via two-way video from the jail. Once again, Middleton

      Court of Appeals of Indiana | Memorandum Decision 28A05-1602-CR-282 | June 21, 2016   Page 2 of 7
      expressed his desire to plead guilty and “get it over with.” Id. at 13. The court

      advised Middleton of his right to an attorney and the benefits of being

      represented by counsel. Middleton indicated that speaking with an attorney

      might be in his best interest but stated “I am ready to proceed.” Id. at 15. The

      court then inquired as to whether the decision was being made freely and

      voluntarily and as to Middleton’s experience with the criminal justice system.

      Middleton responded that he was acting freely and voluntarily and stated, “I

      believe this is the best decision I could possibly make at this time your honor.”

      Id. at 16. The trial court then proceeded with the plea hearing, during which

      the court thoroughly advised and questioned Middleton, the State established a

      factual basis, and Middleton freely and voluntarily pled guilty without the

      benefit of a plea agreement. The trial court accepted Middleton’s plea.


[5]   With respect to sentencing, Middleton provided the following in allocution:


              I know I am not making any excuses, I want to take
              responsibility for my actions I did take the stuff, it did not belong
              to me, I should have not taken it, I do have a criminal history,
              but I am much more responsible than that now, I am on
              probation in Daviess county, but not for stealing, I will cooperate
              with the law, but roughly two and half years ago I severely
              injured myself and I have had six surgeries since that date, June
              26, 2013, I have been opiate addict since and an alcoholic and I
              just kind of lost my way again and that is why I stole the stuff
              was to partially support Christmas for my children and to support
              a drug addict and I am sincerely sorry and I am just ready to take
              responsibility, to get clean, I am kind of glad I am where I am at
              right now, I am glad I couldn’t afford to bond out because I am
              starting to feel better about myself and better, you know, the
              withdraws are easing up a little bit, I just want to get clean, I just

      Court of Appeals of Indiana | Memorandum Decision 28A05-1602-CR-282 | June 21, 2016   Page 3 of 7
              want to get clean and be happy and get back home that is all I
              have to say Judge and I am sorry.


      Id. at 24-25. The State then went through Middleton’s lengthy criminal history

      with Middleton to ensure its accuracy. After this colloquy, Middleton stated, “I

      was doing pretty good I just kind of lost my way, I have been clean for almost 8

      years and I got this injury and I just fell off face first.” Id. at 27.


[6]   At the conclusion of the hearing, the trial court addressed the aggravating and

      mitigating factors, including Middleton’s guilty plea, acceptance of

      responsibility, extensive criminal history, and probationary status at the time of

      these offenses. The court then imposed two years executed in the Greene

      County Jail on each count and ordered the sentences to be served consecutively

      for an aggregate sentence of four years. Middleton now appeals.


                                          Discussion & Decision


[7]   Middleton’s sole argument on appeal is that the trial court erred by conducting

      the sentencing hearing via video conference without obtaining a written waiver

      of his right to be present in person. Middleton acknowledges that he did not

      object below. Accordingly, he argues that the error was fundamental.


[8]   “Neither the United States Constitution nor the Indiana Constitution explicitly

      or implicitly secure to a defendant the right to be present at sentencing.” Cleff v.

      State, 565 N.E.2d 1089, 1091 (Ind. Ct. App. 1991), trans. denied. This non-

      constitutional right is found in I.C. § 35-38-1-4(a), which provides that criminal

      defendants “must be personally present at the time sentence is pronounced.” In
      Court of Appeals of Indiana | Memorandum Decision 28A05-1602-CR-282 | June 21, 2016   Page 4 of 7
       other words, the statute requires a “defendant’s actual physical presence” at

       sentencing. Hawkins v. State, 982 N.E.2d 997, 1002 (Ind. 2013).


[9]    Indiana Administrative Rule 14(A)(2)(c) provides that a trial court “may use

       audio visual telecommunication to conduct…[s]entencing hearings…when the

       defendant has given a written waiver of his or her right to be present in person

       and the prosecution has consented.” “Thus, a trial court may conduct a

       sentencing hearing at which the defendant appears by video, but only after

       obtaining a written waiver of his right to be present and the consent of the

       prosecution.” Hawkins, 982 N.E.2d at 1002-03.


[10]   In Hawkins, the defendant appeared at sentencing by video conference without

       expressly waiving his right to be present in person. Like Middleton, the

       defendant in Hawkins failed to object. Because the Supreme Court was

       remanding for a new trial on another ground, the court determined: “we need

       not decide the impact of Hawkins’s failure to contemporaneously object or

       weigh the impact of denying a defendant the right to be physically present for

       sentencing under fundamental error analysis.” Id. at 1003. The Court,

       nevertheless, took the opportunity to caution trial courts as follows:

               Going forward, though, we would expect to see what our rules
               require reflected in the record, and would urge trial courts to be
               cautious of using procedures—however efficient they may be—
               without following all of the steps required to implement those
               procedures in a way that is fair to all involved.




       Court of Appeals of Indiana | Memorandum Decision 28A05-1602-CR-282 | June 21, 2016   Page 5 of 7
       Id. As this warning was not headed in the instant case, we are left to determine

       whether the failure to obtain a written waiver from Middleton or have him

       physically present at sentencing amounted to fundamental error.


[11]   Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged error was so

       prejudicial to the defendant’s rights as to make a fair trial impossible. Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014). To establish fundamental error, the

       defendant must show that, under the circumstances, the error “constitute[d]

       clearly blatant violations of basic and elementary principles of due process” and

       “present[ed] an undeniable and substantial potential for harm.” Id. (quoting

       Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). “Fundamental error is meant

       to permit appellate courts a means to correct the most egregious and blatant

       trial errors that otherwise would have been procedurally barred, not to provide

       a second bite at the apple for [those] who ignorantly, carelessly, or strategically

       fail to preserve an error.” Id.


[12]   Middleton does not meet the heavy burden of establishing fundamental error.

       His entire fundamental error argument is as follows:

               Few rights afforded to a defendant require a waiver be made in
               writing; a defendant’s waiver of his constitutional right to a jury
               trial is one such example. It would seem, then, that the right of
               one to be physically present at his sentencing is nearly as
               fundamental as the right to be tried by a jury of one’s peers.


       Appellant’s Brief at 6.


       Court of Appeals of Indiana | Memorandum Decision 28A05-1602-CR-282 | June 21, 2016   Page 6 of 7
[13]   As set forth above, the right to be present at sentencing is not a constitutional

       right. Cleff, 565 N.E.2d at 1091. Further, the record establishes that Middleton

       received a thorough sentencing hearing at which he had the opportunity to be

       heard, offer evidence, and present his sentencing argument via video

       conference. While we do not condone the trial court’s failure to follow

       Administrative Rule 14(A), we conclude that Middleton’s presence via video

       conference without a written waiver did not violate basic and elementary

       principles of due process.1 Accordingly, the error was not fundamental.


[14]   Judgment affirmed.


[15]   Bailey, J., and Bradford, J., concur.




       1
         A challenge to his sentence on this issue could have been avoided had waiver forms been available at the
       jail for Middleton’s consideration.

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