                                                                        FILED
                                                                   Aug 04 2020, 12:37 pm

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court



                              IN THE

      Indiana Supreme Court
                 Supreme Court Case No. 20S-CR-499

                         State of Indiana,
                           Appellant-Plaintiff,

                                   –v–

                   Samuel E. Vande Brake,
                           Appellee-Defendant.


                         Decided: August 4, 2020

   Appeal from the Tippecanoe Superior Court, No. 79D01-1903-F1-5
                 The Honorable Randy Williams, Judge

       On Petition to Transfer from the Indiana Court of Appeals
                            No. 19A-CR-1772



                          Per Curiam Opinion
Chief Justice Rush and Justice David, Justice Massa, Justice Slaughter, and
                           Justice Goff concur.
Per curiam.

  Samuel E. Vande Brake was charged with four felonies after he shot his
roommate in the chest during an argument on October 19, 2017.

   Around a week after Vande Brake’s arrest, the State moved to add a
“use of firearm” sentence enhancement. This permits the trial court to
impose an additional 5- to 20-year fixed term of imprisonment if the State
can show beyond a reasonable doubt that the defendant knowingly or
intentionally used a firearm in the commission of the underlying offense.
I.C. § 35-50-2-11(d), (g). The trial court granted this motion on November
8, 2017. The trial court later granted the State’s motion to add an
additional charge of attempted murder and assigned a new case number.

   The State did not raise the firearm enhancement or address the need for
bifurcated proceedings at any of nine pre-trial or status conferences held
between the initial hearing on November 17, 2017 and the jury trial on
June 18, 2019. For reasons not made clear by the record, the firearm
enhancement was not listed in the Case Information section in either
chronological case summary. The State also did not submit proposed
instructions regarding a firearm enhancement or relating to a potential
bifurcated second phase.

   After a three-day trial, the jury found Vande Brake guilty of four felony
counts, including aggravated battery as a Level 3 felony. The trial court
accepted the verdicts and excused the jury.

   Only then did the State raise the firearm enhancement. The trial court
responded that because the enhancement was not addressed “at any time
during the course of this trial” and the jury had already been excused, it
was “dismisse[d] as a matter of course.” Tr. Vol. 1 p. 6. The State did not
object. One week later, it filed a motion to correct error, which was denied.

   At the July 19, 2019 sentencing hearing, the trial court sentenced Vande
Brake to nine years in the Indiana Department of Correction. The State
appealed, arguing that the trial court abused its discretion by dismissing
the firearm enhancement sua sponte.




Indiana Supreme Court | Case No. 20S-CR-499 | August 4, 2020          Page 2 of 4
   The Court of Appeals reversed and remanded with instructions for the
trial court to impanel a new jury to hear the enhancement charge. State v.
Vande Brake, 143 N.E.3d 362 (Ind. Ct. App. 2020). Vande Brake petitioned
for transfer, which we now grant, vacating the Court of Appeals opinion.
Ind. Appellate Rule 58(A).


Discussion, Decision, and Conclusion
  The State appealed from a negative judgment, which required it to
show that the trial court’s judgment was contrary to law. Burnell v. State,
56 N.E.3d 1146, 1149-50 (Ind. 2016).

   The firearm enhancement statute provides, in relevant part:

        The state may seek … 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) (emphasis added).

  The use of “may” indicates the State has discretion to seek a firearm
enhancement—which, necessarily, also means the State can withdraw or
waive that enhancement.

   We find clear waiver here. The State failed to: raise the firearm
enhancement at any of nine pretrial conferences; inform the court that the
enhancement was not listed as a charged offense in either CCS for the
case; propose preliminary or final jury instructions relating to the
enhancement; alert the trial court to the need for a bifurcated trial at any
time before the court excused the jury; or object to the dismissal of the
enhancement while the jury remained in the building.

   Under these circumstances, the State failed to meet its burden to show
that the trial court’s implied finding of waiver and subsequent sua sponte
dismissal of the firearm enhancement were contrary to law. Having
granted transfer, we affirm the trial court.



Indiana Supreme Court | Case No. 20S-CR-499 | August 4, 2020         Page 3 of 4
Rush, C.J., and David, Massa, Slaughter, and Goff, JJ., concur.



ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana

Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana

ATTORNEY FOR APPELLEE
Ross G. Thomas
Indianapolis, Indiana




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