MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Sep 17 2018, 10:02 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Peter D. Todd                                            Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brittany L. Loftin,                                      September 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-934
        v.                                               Appeal from the
                                                         Elkhart Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Kristine A. Osterday, Judge
                                                         Trial Court Cause No.
                                                         20D01-1711-F6-1632



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018              Page 1 of 10
[1]   Brittany L. Loftin (“Loftin”) pleaded guilty in Elkhart Superior Court 1 to

      failure to return to lawful detention1 as a Level 6 felony, and Senior Judge

      David T. Ready (“Senior Judge Ready”) was the judge that conducted the

      guilty plea hearing. Some weeks later, Loftin’s sentencing hearing was held,

      and Judge Kristine A. Osterday (“Judge Osterday”), the presiding judge of

      Elkhart Superior Court 1, conducted that hearing. Loftin appeals, claiming that

      Judge Osterday did not have jurisdiction to sentence her pursuant to Indiana

      Trial Rule 63.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On March 13, 2017, Loftin was directed to serve a sentence in Cause Number

      20D01-1611-F4-294 (“Cause 294”) in the Elkhart County Community

      Corrections work release facility. On July 24, 2017, Loftin left the facility with

      permission to go to work, and she was required to return the same day. By the

      next morning, Loftin had not returned. In November 2017, the State charged

      Loftin with Level 6 felony failure to return to lawful detention for her failure to

      return to the work release facility on July 24, 2017, and a warrant was issued for

      her arrest. Appellant’s App. Vol. II at 3, 14. On December 4, 2017, a car in

      which Loftin was a passenger was stopped by police, she informed the officers

      of the outstanding warrant, and she was arrested. Loftin appeared with counsel




      1
          See Ind. Code § 35-44.1-3-4(c).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018   Page 2 of 10
      at the initial hearing, which was held before Judge Osterday.2 Tr. Vol. II at 2.

      Judge Osterday read the charging information to Loftin and advised Loftin that

      she had been charged with this new crime related to her failure to return to

      Community Corrections, which Judge Osterday explained was a separate

      offense from a violation of probation petition that had been filed in Cause 294.


[4]   On February 6, 2018, which was the day that her trial was to begin, Loftin

      pleaded guilty, without a written plea agreement, to the Level 6 felony of failure

      to return to lawful detention. Senior Judge Ready presided at the guilty plea

      hearing. He reviewed the charging information with Loftin, and he advised her

      of her rights. Loftin acknowledged that she had been committed to Elkhart

      County Community Corrections in Cause 294, that she was released from the

      work release facility on July 24 in the morning, was supposed to return the

      same day, and had not returned as of 9:00 a.m. the next day. Id. at 26. She

      acknowledged that she never voluntarily returned to the work release facility

      and that she was arrested on an outstanding warrant when she was a passenger

      in a car that got pulled over for a traffic violation. Id. at 27. At the conclusion

      of the hearing, Senior Judge Ready accepted Loftin’s guilty plea and entered

      judgment of conviction. Id. at 30.


[5]   On March 22, 2018, the trial court held a sentencing hearing, and Judge

      Osterday presided. Judge Osterday began by confirming that counsel had




      2
          According to the record, Judge Osterday was a magistrate at the time. Tr. Vol. II at 2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018             Page 3 of 10
      received and reviewed the presentence investigation report, and then she

      received argument from counsel regarding sentencing. Counsel for Loftin

      asked the trial court not to aggravate the sentence and urged the court to

      consider alternative placement again, arguing: (1) Loftin pleaded guilty and

      accepted responsibility; (2) this was not a violent crime, and Loftin “was

      someone who just didn’t return,” (4) Loftin’s sister was ill, Loftin had been

      asked to help care for her children, and Loftin was “overwhelmed” and regrets

      not returning. Id. at 35. Loftin told Judge Osterday, “I apologize and I’m just

      ready to get everything over with. You know, get home to my son. Get all of

      this over with.” Id. at 36. The State argued that, while Loftin did plead guilty,

      she had “numerous opportunities” to do so before trial but, because she waited

      until the morning of trial to plead, “the trial date was wasted because of her.”

      Id. The State also argued that Loftin’s “previous history is particularly

      egregious and she was fortunate to be in work release in the first place and . . .

      alternative placement is not appropriate when you escape.” Id. at 37.

      Therefore, the State urged the trial court to impose an aggravated and executed

      sentence at the Indiana Department of Correction.


[6]   Following argument, Judge Osterday remarked that Loftin’s criminal history

      was not particularly long but was “significant.” Id. Judge Osterday also stated

      that, after reading Loftin’s presentence investigation report, she questioned

      whether Loftin was “being honest with [her]self” about alcohol issues. Id. at

      38. Judge Osterday sentenced Loftin to eighteen months in the Elkhart County

      Jail and authorized alternative placement if approved by Community


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018   Page 4 of 10
      Corrections.3 Id. at 38-39; Appellant’s App. Vol. II at 9. Loftin did not object to

      Judge Osterday presiding at the sentencing hearing. Loftin now appeals.


                                        Discussion and Decision
[7]   Loftin contends that, pursuant to Indiana Trial Rule 63, Judge Osterday lacked

      jurisdiction to enter the sentencing order, and thus the sentencing order is void.

      Appellant’s Br. at 6. As an initial matter, we find that Loftin has waived this

      issue for appeal by failing to object at the sentencing hearing to having Judge

      Osterday determine and impose her sentence. Our Supreme Court has

      recognized that “the failure of a party to object at trial to the authority of a

      court officer to enter a final appealable order waives the issue for appeal.” 4

      Floyd v. State, 650 N.E.2d 28, 32-33 (Ind. 1994). Here, Loftin did not object at

      the sentencing hearing to Judge Osterday sentencing her, and therefore Loftin

      has waived the issue. See McMichel v. State, 655 N.E.2d 61, 63 (Ind. 1995)

      (defendant’s post-conviction claim, asserting that his conviction was invalid

      because the master commissioner did not have authority to accept his plea or

      sentence him, was properly denied due to waiver because defendant did not

      object to the master commissioner’s authority to act and thus failed to properly



      3
       Judge Osterday ordered Loftin’s sentence in the present case to be served consecutive to sanctions for her
      violation of probation in Cause 294. Tr. Vol. II at 39.
      4
        In its analysis, the Indiana Supreme Court observed that, as to the matter of jurisdiction, “[I]t has been the
      long-standing policy of this [C]ourt to view the authority of the officer appointed to try a case not as affecting
      the jurisdiction of the court.” Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994). It explained, “‘The defect
      pointed out was not affecting the jurisdiction of the court, but the right and authority of its presiding judge to
      act as such.’” Id. (quoting Gordy v. State, 262 Ind. 275, 282-83; 315 N.E.2d 362, 367 (Ind. 1974)).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018                    Page 5 of 10
       preserve the issue for appeal); see also 4 William F. Harvey & Stephen E.

       Arthur, Indiana Practice, Rules of Procedure Annotated, § 63.2 (3d ed. 2017) (“An

       objection must be made, however, or the point is waived.”).


[8]    Waiver notwithstanding, we find no error. Loftin’s argument on appeal is that,

       under the facts of her case, Indiana Trial Rule 63 required that she be sentenced

       by Senior Judge Ready. The interpretation of the Indiana Trial Rules is a

       question of law, which we review de novo. In re Paternity of V.A., 10 N.E.3d 61,

       63 (Ind. Ct. App. 2014). In construing the meaning of the Trial Rules, our

       objective is to give effect to the intent underlying the rule. Id.


[9]    Trial Rule 63, titled “Disability and unavailability of a judge,” provides, in

       pertinent part:


       The judge who presides at the trial of a cause or a hearing at which evidence is
       received shall, if available, hear motions and make all decisions and
       rulings required to be made by the court relating to the evidence and the
       conduct of the trial or hearing after the trial or hearing is concluded. If
       the judge before whom the trial or hearing was held is not available by
       reason of death, sickness, absence or unwillingness to act, then any
       other judge regularly sitting in the judicial circuit or assigned to the
       cause may perform any of the duties to be performed by the court after
       the verdict is returned[.]


[10]   This court has recognized that a purpose of Trial Rule 63 is to ensure that a

       successor judge who did not receive evidence and view witnesses is not

       reweighing evidence or assessing credibility of witnesses. See Gunter v. State,

       605 N.E.2d 1209, 1211 (Ind. Ct. App. 1993) (criminal law contemplates that

       same judge will preside throughout criminal trial, and the purpose of the rule is
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018   Page 6 of 10
       “to insure to both parties the fairness and evenhandedness that arises from

       having the same person preside over the various facets of a trial”), trans. denied;

       Oliver v. Morrison, 431 N.E.2d 140, 143-44 (Ind. Ct. App. 1982) (holding that

       special judge who did not preside at trial but ruled on motion to correct error,

       and, in so doing, assigned credibility to a witness without having seen the

       witness, abused his discretion); 4 William F. Harvey & Stephen E. Arthur,

       Indiana Practice, Rules of Procedure Annotated, § 63.2 (3d ed. 2017) (“[T]he rule

       insists that a second or successor judge cannot resolve issues of credibility and

       weight of the evidence, without having heard the evidence and observe[d] the

       demeanor of the witnesses.”).


[11]   Here, Loftin’s argument is that because Senior Judge Ready conducted the

       guilty plea hearing, he “maintained jurisdiction over the case,” and since

       nothing in the record indicates that Senior Judge Ready was unavailable to

       conduct the sentencing hearing, Judge Osterday’s sentencing order is “void and

       without effect” pursuant to Indiana Trial Rule 63. Appellant’s Br. at 4, 6. Loftin

       asks this court to remand the action to the trial court “so that Senior Judge

       Ready can sentence her or Judge Osterday can issue an order that determines

       and shows [Senior] Judge Ready is unavailable before she sentences Loftin.”

       Id. at 6. We disagree with Loftin’s interpretation and application of Trial Rule

       63 and find that, contrary to Loftin’s claim, remand for re-sentencing is not

       warranted.


[12]   As this court has observed, a guilty plea hearing is not the same as a criminal

       trial. See Long v. State, 962 N.E.2d 671, 674 (Ind. Ct. App. 2012) (holding that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018   Page 7 of 10
       master commissioner who presided at guilty plea hearing was not statutorily

       authorized to sentence defendant because the statute only authorizes sentencing

       by magistrate or master commissioner if he or she “presides at a criminal

       trial[,]” and appellate court was “not at liberty to conclude that [the statute’s

       language] indicating ‘criminal trial’ really means ‘criminal trial or guilty plea

       hearing’”), trans. denied.


[13]   We agree with the Long court that a guilty plea hearing and a trial are not

       equivalents. At a guilty plea hearing, the applicable criminal charges are read

       to the defendant, and a factual basis is presented, based on charging

       information and probable cause affidavit, and, thereafter, the defendant, if he or

       she so chooses, accepts the truthfulness of the allegations. This is

       distinguishable from a trial, where evidence and witnesses are presented,

       observed, and evaluated, and guilt or innocence is determined. We thus find

       that Trial Rule 63’s directive – that “[t]he judge who presides at the trial of a cause

       or a hearing at which evidence is received shall, if available, . . . make all [post-trial]

       decisions and rulings” – does not require that the same judge must conduct both

       the guilty plea hearing and the sentencing hearing. Ind. Trial Rule 63(A)

       (emphasis added).


[14]   Furthermore, even if it was error in this case for one judge to accept Loftin’s

       guilty plea and another judge to sentence her, Loftin has not shown that she

       was prejudiced, and, thus, any error was harmless. First, Loftin has not

       alleged, and we do not find, that Judge Osterday improperly re-evaluated

       evidence that had been presented to Senior Judge Ready at the guilty plea

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018   Page 8 of 10
       hearing. The guilty plea hearing consisted of Senior Judge Ready reviewing the

       charging information with Loftin and advising Loftin of her rights. Loftin

       acknowledged that she left the work release facility and did not return and that

       she was later arrested on the outstanding warrant. Tr. Vol. II at 26-27. At the

       subsequent sentencing hearing, Judge Osterday outlined that the hearing would

       include both sentencing in the current case, as well as imposition of sanctions

       for a probation violation in Cause 294, and then she confirmed that the parties

       had received and read the presentence investigation report. Thereafter, counsel

       for each party presented argument as to sentencing. When the trial court asked

       Loftin if there was anything she wanted to say on her own behalf, she told

       Judge Osterday, “I apologize and I’m just ready to get everything over with.

       You know, get home to my son. Get all of this over with.” Id. at 36. Judge

       Osterday, during her imposition of sentence, made statements indicating that

       she had read and was familiar with the contents of Loftin’s presentence

       investigation report. We agree with the State that “[a]ll of the evidence relevant

       to the sentencing determination was provided at the sentencing hearing,”

       including the presentence investigation report and probable cause affidavit.

       Appellee’s Br. at 8. Given these facts, there is no likelihood of unfairness to

       Loftin based on information or evidence given to Senior Judge Ready at the

       guilty plea hearing that Judge Osterday either did not have or improperly re-

       evaluated at the subsequent sentencing hearing.


[15]   Second, Judge Osterday sentenced Loftin to eighteen months in the Elkhart

       County Jail and approved of alternative placement. The maximum sentence for


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018   Page 9 of 10
       a Level 6 felony is two and one-half years. Ind. Code § 35-50-2-7. Thus, Loftin

       received a sentence well below what was permitted. As Loftin has not argued,

       much less shown, that she suffered any harm as a result of Judge Osterday

       imposing sentence, rather than Senior Judge Ready, we find that any error was

       harmless. See Gunter, 605 N.E.3d at 1211 (finding that any error in having a

       special judge preside over the habitual offender phase of a trial, after the first

       judge disqualified himself following the first phase of trial, was harmless

       because there was no suggestion of any actual prejudice). Based on the record

       before us, we conclude that Judge Osterday’s sentencing order is not void, and

       remand for re-sentencing is not warranted.


[16]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018   Page 10 of 10
