MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                        FILED
court except for the purpose of establishing                       Feb 15 2017, 10:04 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Troy D. Warner                                           Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
South Bend, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Grady Jamal Moss,                                        February 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1609-CR-2067
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffery L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1509-F5-199



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017    Page 1 of 7
                                Case Summary and Issue
[1]   Following a jury trial, Grady Moss was convicted of dealing in cocaine as a

      Level 5 felony. Moss appeals, raising two issues for our review, which we

      consolidate and state as whether he waived his right to be present at his jury

      trial. Concluding Moss waived his right to be present, we affirm.



                            Facts and Procedural History
[2]   Following a controlled buy on September 9, 2015, the State charged Moss with

      dealing in cocaine as a Level 5 felony. The trial court scheduled a status

      conference for January 4, 2016, and Moss failed to appear. The trial court

      rescheduled the status conference and issued a bench warrant for Moss. At the

      rescheduled hearing on March 14, Moss was present and the trial court

      informed him the court would hold a pre-trial conference on June 6 and a jury

      trial would commence on June 20. When Moss expressed concern about being

      able to remember the trial date, the trial court provided Moss with a reminder

      card. Moss failed to appear for the pre-trial conference on June 6 and the trial

      court issued a bench warrant for his arrest. Unable to contact Moss, defense

      counsel moved to continue the June 20 trial date. After reviewing the relevant

      case law and discussing the matter with counsel at length, the trial court denied

      the motion to continue and concluded Moss could be tried in absentia if he did

      not appear at trial on June 20.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017   Page 2 of 7
[3]   Moss did not appear at trial on June 20 and Moss’ counsel objected to trying

      the case in absentia, arguing the trial court did not advise Moss his failure to

      appear at trial could result in a waiver of his right to be present at his trial.1 The

      trial court noted the objection and proceeded with trial. The jury found Moss

      guilty as charged.


[4]   On July 12, Moss appeared before the trial court in custody and the trial court

      entered judgment of conviction. At the sentencing hearing, the following

      discussion occurred:


               [Trial Court:] All right. Mr. Moss, this is a result of the trial that
               you were absent from. I think I am required to allow you to give
               an explanation as to why you weren’t here for trial. I think you
               had told me that you had mixed up the dates?


               [Moss:] Yes.


               [Trial Court:] Which I don’t think is a really strong reason for
               me to vacate the jury’s verdict now. . . . You were here when we
               set the trial date. . . . You were informed of the trial date. So I
               think based on that that we can go forward. Okay? So I will
               listen to your attorney and to you, if you have anything you want
               to tell me . . . .


               ***




      1
       The record on appeal does not include the entirety of the parties’ discussions with the trial court at the
      March 14 hearing. Thus, it is not entirely clear whether the trial court explained to Moss he could be tried in
      absentia. For the purposes of this appeal, we address the merits of Moss’ claims assuming the trial court did
      not advise him of the potential waiver

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017            Page 3 of 7
              [Moss:] I apologize for missing court, and I was wrong for that.
              I’m just sorry for that, and I just want to try and ask you to give
              me another chance to do the right thing.


      Transcript, Vol. 2 at 82-84. This appeal ensued.



                                 Discussion and Decision
[5]   Moss argues the trial court improperly tried him in absentia. Pursuant to the

      United States and Indiana Constitutions, a criminal defendant has the right to

      be present during his or her trial. Holtz v. State, 858 N.E.2d 1059, 1061 (Ind. Ct.

      App. 2006), trans. denied. A defendant may waive this right so long as the

      waiver is voluntarily, knowingly, and intelligently made. Id. When a

      defendant fails to appear for trial and fails to notify the trial court or provide it

      with an explanation of his or her absence, the trial court may conclude the

      defendant’s absence is knowing and voluntary and proceed with trial when

      there is evidence the defendant knew of his or her scheduled trial date. Id. at

      1062. However, a defendant who has been tried in absentia must be afforded an

      opportunity to explain his or her absence in an attempt rebut the initial

      presumption of waiver. Ellis v. State, 525 N.E.2d 610, 611 (Ind. Ct. App. 1987).

      “As a reviewing court, we consider the entire record to determine whether the

      defendant voluntarily, knowingly, and intelligently waived his right to be

      present at trial.” Brown v. State, 839 N.E.2d 225, 228 (Ind. Ct. App. 2005)

      (citation omitted), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017   Page 4 of 7
[6]   Despite this well-established framework for trying defendants in absentia, Moss

      claims two additional requirements must be addressed before a defendant can

      be tried in absentia. First, he cites to Jackson v. State, 868 N.E.2d 494 (Ind.

      2007), and argues there must be evidence of egregious conduct by the

      defendant, noting the court’s statement that Jackson’s absence was “intentional

      and inexcusable.” Id. at 496. In Jackson, our supreme court concluded the

      defendant waived his right to be present at his trial, reasoning he was informed

      of his trial date both orally and in writing and he never contacted the court prior

      to his trial to address any confusion he might have had about the trial date. Id.

      at 498-99. In fact, the court specifically stated, “Consistent with Indiana law,

      the trial court properly concluded that Jackson’s knowledge of the trial date

      coupled with a lack of explanation for his absence supported a determination

      that there was a voluntary and knowing waiver.” Id. at 499. We therefore

      cannot read Jackson as indicating or implying there must be evidence of

      egregious conduct by the defendant before the defendant may be tried in

      absentia.


[7]   Second, he cites to Holtz and argues the trial court is also required to advise a

      defendant a failure to appear at trial could result in a waiver of his or her right

      to be present at trial. In Holtz, we found no error in the defendant being tried in

      absentia, reasoning in part that the trial court had already informed the

      defendant the trial may proceed regardless of his attendance. 858 N.E.2d at

      1062. However, we did not state as a matter of law the trial court is required to

      advise a defendant his absence from trial could result in waiver. Rather, the

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017   Page 5 of 7
      defendant in Holtz was merely present in court when the trial court informed

      him of his trial date and did not give a justifiable reason for his absence.

      Consistent with a number of cases from this court and our supreme court, this

      was and remains sufficient evidence to establish a defendant knowingly waived

      his or her right to be present at trial. See, e.g., Jackson, 868 N.E.2d at 498;

      Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997); Calvert v. State, 14 N.E.3d

      818, 821 (Ind. Ct. App. 2014); Brown, 839 N.E.2d at 227-28; Soliz v. State, 832

      N.E.2d 1022, 1029 (Ind. Ct. App. 2005), trans. denied; Ellis, 525 N.E.2d at 611.

      The fact the trial court advised the defendant in Holtz of the potential waiver is

      merely additional evidence showing the defendant knowingly waived the right to

      be present at trial and we conclude such evidence is not a prerequisite to trying

      a defendant in absentia.


[8]   Consistent with our case law, the trial court informed Moss of his trial date. In

      addition, the trial court provided Moss with a reminder card containing the trial

      date. Moss did not appear at the June 6 pre-trial conference or at trial on June

      20. Moss did not contact his attorney or the trial court and notify them he

      would be absent. When Moss finally appeared in custody, the trial court gave

      Moss an opportunity to explain his absence. Moss claimed he misunderstood

      the trial dates, and when given an opportunity to elaborate further, he only

      apologized for his absence and stated he was “wrong for that.” Tr., Vol. 2 at

      84. We do not agree such an explanation rebuts the presumption of waiver

      already established by Moss’ knowledge of the trial date and failure to appear,

      especially in light of the fact the trial court gave Moss a card reminding him of

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017   Page 6 of 7
       the trial date. Compare Calvert, 14 N.E.3d at 822-23 (concluding a defendant’s

       deployment to Afghanistan justified his absence at trial), with Brown, 839

       N.E.2d at 231 (concluding a defendant’s assertion he was in another county’s

       jail during his trial was not an adequate explanation for his absence when he

       was present in court when the trial date was set and he chose not to

       communicate his predicament to his counsel). We conclude Moss knowingly,

       voluntarily, and intelligently waived his right to be present at trial.2



                                                  Conclusion
[9]    Moss waived his constitutional right to be present at his trial. Accordingly, we

       affirm.


[10]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       2
         Because Moss knowingly waived his right to be present at trial, we conclude all other claims presented in
       the Brief of Appellant fail.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017           Page 7 of 7
