MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                               Apr 20 2020, 10:55 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Curtis T. Hill, Jr.
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Douglas Kelly Clark,                                     April 20, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2252
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Davin G. Smith,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         35C01-1812-F5-298



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020                    Page 1 of 10
[1]   Douglas Clark appeals his convictions of criminal recklessness, a Level 5
                 1                                                                    2
      felony; carrying a handgun without a license, a Level 5 felony; and three
                                                                          3
      counts of neglect of a dependent, all Level 6 felonies. He also appeals the

      sentence imposed by the trial court. We affirm in part, reverse in part, and

      remand with instructions.


[2]   On the afternoon of November 2, 2018, Gregory Hummer was driving in

      Huntington County. He passed a blue Ford Escape being driven by Douglas

      Kelly Clark. Hummer passed Clark on the right, believing that Clark was

      making a left-hand turn, and traveled on State Road 218 towards I-69.


[3]   Next, Clark aggressively passed a semi-truck and began tailgating Hummer.

      Once Clark passed Hummer, he began “brake-checking” Hummer. Tr. Vol. III,

      p. 142. Eventually both Clark and Hummer drove onto I-69, and despite heavy

      traffic on that highway, Clark “amped” up his behavior and “was even more

      aggressive.” Id. at 143. Clark would either follow Hummer in order to tailgate

      him or pass Hummer in order to brake-check him. At times, Clark would drive

      alongside Hummer, boxing Hummer in with other traffic. It was during one of

      these times that the passenger side window on the Escape was rolled down, and




      1
          Ind. Code § 35-42-2-2 (2014).
      2
          Ind. Code § 35-47-2-1 (2017).
      3
          Ind. Code § 35-46-1-4 (2018).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020       Page 2 of 10
      Clark pointed a handgun at Hummer’s vehicle and fired three shots. The

      bullets struck Hummer’s vehicle but missed Hummer.


[4]   Clark sped away, but Hummer followed Clark, attempting to record his license

      plate number. Next, Clark made a sudden U-turn in the I-69 median, but due

      to his high rate of speed, the vehicle tipped back onto two wheels before driving

      away. At that time, Hummer observed what he believed to be two children in

      Clark’s vehicle. Hummer called 911 and was instructed to meet law

      enforcement at a nearby exit.


[5]   After exiting I-69, Hummer met with Huntington County Sheriff’s Department

      Captain Malcolm Jones. Hummer reported the incident to Captain Jones, and

      Captain Jones observed three bullet holes in Hummer’s vehicle. Around that

      same time, Deputy Jamin Sands stopped alongside State Road 5 to assist Clark,

      whose vehicle had broken down. Clark had three children with him, ages nine,

      six, and four. After meeting with Hummer, Captain Jones arrived at the scene

      on State Road 5 and informed Deputy Sands that Clark’s vehicle matched the

      vehicle described by Hummer. Clark was taken into police custody.


[6]   After officers located a gun holster and ammunition in Clark’s vehicle and a

      handgun in the ditch along State Road 5, they interviewed Clark. Clark

      admitted to pulling alongside Hummer’s vehicle on I-69, telling his son to roll

      down his window and lay his seat back, and firing three shots at Hummer’s

      vehicle. Clark further admitted that he did not have a permit to carry the

      handgun, and he had thrown the gun in a ditch.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020   Page 3 of 10
[7]   On December 18, 2018, the State charged Clark with Level 5 felony criminal

      recklessness, Level 5 felony possession of a handgun without a license, and
                                                                             4
      three counts of Level 6 felony neglect of a dependent. On July 23 and 24,

      2019, Clark was tried by jury in absentia, after failing to appear without any

      notification. Clark was found guilty as charged.


[8]   The trial court scheduled a sentencing hearing for August 12, 2019, but Clark

      failed to appear. Clark was later arrested on a warrant, and a sentencing

      hearing was held on September 16, 2019. At the sentencing hearing, Clark

      moved to vacate the jury’s verdict, arguing that his trial in absentia violated his

      right to be present at trial under the Sixth Amendment to the United States

      Constitution and article 1, section 13 of the Indiana Constitution, a motion

      which was denied by the trial court.


[9]   The trial court sentenced Clark to six years with 180 days suspended to

      probation for his criminal recklessness conviction, six years with 180 days

      suspended to probation for his conviction of possession of a handgun without a

      license, and two and one-half years with two years suspended to probation on

      each of his neglect of a dependent convictions. Clark was ordered to serve all

      sentences consecutively except for the criminal recklessness and possession of a

      handgun without a license sentences, which were ordered to be served




      4
       The State also charged Clark with Class A misdemeanor possession of a firearm after a conviction for
      domestic battery but ultimately dismissed that charge.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020                  Page 4 of 10
       concurrently, for an aggregate sentence of thirteen and one-half years, with six

       and one-half years suspended to probation.


                                           I. Trial in Absentia
[10]   Clark contends that the trial court erroneously tried him in absentia, violating his

       right to be present at trial under both the Sixth Amendment to the United States

       Constitution and article 1, section 13 of the Indiana Constitution. Both the

       Sixth Amendment to the United States Constitution and article 1, section 13 of

       the Indiana Constitution provide a defendant in a criminal proceeding the right

       to be present at all stages of his trial. Jackson v. State, 868 N.E.2d 494 (Ind.

       2007). A defendant, however, may be tried in absentia if the trial court finds that

       the defendant knowingly and voluntarily waived that right. Id. Furthermore:


               When a defendant fails to appear for trial and fails to notify the
               trial court or provide it with an explanation of his absence, the
               trial court may conclude the defendant’s absence is knowing and
               voluntary and proceed with trial when there is evidence that the
               defendant knew of his scheduled trial date.


       Id. at 498 (quoting Freeman v. State, 541 N.E.2d 533, 535 (Ind. 1989)).


[11]   “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.” Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997)

       (citation omitted), modified on reh’g, 685 N.E.2d 698 (Ind. 1997). “The trial

       court may presume a defendant voluntarily, knowingly and intelligently waived

       his right to be present and try the defendant in absentia upon a showing that the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020   Page 5 of 10
       defendant knew the scheduled trial date but failed to appear.” Brown v. State,

       839 N.E.2d 225, 227 (Ind. Ct. App. 2005) (citation omitted), trans. denied.


[12]   That said, a defendant who has been tried in absentia must be provided an

       opportunity to explain his absence and thereby rebut the initial presumption of

       waiver. Id. (quotation omitted). “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.” Id. at 228 (quoting Soliz v.

       State, 832 N.E.2d 1022, 1029 (Ind. Ct. App. 2005), trans. denied). We review the

       defendant’s explanation of his absence as part of the evidence used to determine

       whether it was error to try him in absentia. Id.


[13]   Here, we conclude that the trial court properly found waiver. Neither party

       disputes that Clark was made aware of his July 23, 2019 trial date at his March

       11, 2019 pretrial hearing. At the pretrial hearing, Clark clearly acknowledged

       his trial date in a colloquy with the trial court as follows:


               THE COURT: And that will be at 8:00 a.m. for final pretrial
               conference. Mr. Clark, did you hear those dates?

               [CLARK]: Yes.

               THE COURT: Okay, do you understand that we’re setting this
               matter for trial today? Okay? So you’re going to need to be here
               for final pretrial conference on June 17th at 8:00 a.m. and then
               our trial will be July 23rd, 24th, and 25th at 8:30.

               [CLARK]: Alright.

               THE COURT: Okay? It’s your responsibility to be here those
               days.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020   Page 6 of 10
               [CLARK]: Yes.


       Tr. Vol. III, pp. 18-19. Both parties also agree that Clark failed to appear at

       trial. Finally, after the trial, Clark did not provide his trial counsel or the trial

       court a reason for his absence.


[14]   Clark argues, however, that he was not afforded an opportunity to rebut the

       presumption of waiver. We disagree. On September 16, 2019, the trial court

       held a sentencing hearing, at which Clark moved to vacate the jury’s verdict

       based on being tried in absentia. At the hearing, through his counsel, Clark

       stated:


               Mr. Clark stands ready to participate in his defense and would
               like his day in court. Uh, so we believe that proceeding with
               sentencing today would be inappropriate as the Court again
               denied our Motion to Continue his jury trial that was held in
               absentia. We believe as part of his state- Indiana State and
               United States Constitutional rights, Mr. Clark has a right to be
               present and participate at his trial and in his defense, and the
               right to confront and question witnesses, and all the other rights
               guaranteed to him by the State and Federal Constitutions.


       Tr. Vol. IV, p. 89. Clark was provided an opportunity to rebut the presumptive

       waiver, but he failed to provide any reason whatsoever for his absence at trial.

       We will not second-guess the conclusion of the trial court that Clark simply

       “chose not to appear” at trial. Id. at 90. Defendants who are tried in absentia

       are not entitled to a new trial just because they have decided they want to show




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020   Page 7 of 10
       up and participate after the fact. The trial court did not err in concluding that

       Clark knowingly and voluntarily waived his right to be present at his trial.


                                II. Appropriateness of Sentence
[15]   Clark contends that his sentence is inappropriate and asks that it be reduced to

       five and one-half years. At the outset, the State acknowledges, and we agree,

       that Clark’s aggregate thirteen and one-half year sentence is improper pursuant

       to Indiana Code section 35-50-1-2(d) (2018). That statute provides, in relevant

       part:


               (d) Except as provided in subsection (c), the total of the
               consecutive terms of imprisonment to which the defendant is
               sentenced for felony convictions arising out of an episode of
               criminal conduct may not exceed the following:

                                                     *****

                        (2) If the most serious crime for which the defendant is
                        sentenced is a Level 5 felony, the total of the consecutive
                        terms of imprisonment may not exceed seven (7) years.


       Id.; see also Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005) (concluding that the

       phrase “terms of imprisonment” in Indiana Code section 35-50-1-2 should be

       read “to include any period of incarceration a defendant is sentenced to, even if

       all or a portion of that period of time is suspended.”). Based on the State’s

       concession that Clark’s offenses were an episode of criminal conduct, Clark’s

       aggregate sentence cannot exceed seven years. We remand to the trial court

       with instructions to vacate the six and one-half years of his sentence that the

       trial court suspended to probation.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020   Page 8 of 10
[16]   That said, Clark was sentenced to seven years of incarceration, and we will

       review said sentence to determine whether it was inappropriate. We may revise

       a sentence if, “after due consideration of the trial court’s decision, the Court

       finds that the sentence is inappropriate in light of the nature of the offense and

       the character of the offender.” Ind. Appellate Rule 7(B). “Sentencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008) (internal citations omitted). The defendant bears the burden of proving

       that his sentence is inappropriate in light of both the nature of his offense and

       his character. Gil v. State, 988 N.E.2d 1231 (Ind. Ct. App. 2013) (quotation

       omitted).


[17]   The nature of Clark’s egregious offenses does not support a reduction in his

       sentence. Clark was convicted of Level 5 felony criminal recklessness, Level 5

       felony possession of a handgun without a license, and three counts of Level 6

       felony neglect of a dependent, after an apparent bout of unjustified road rage

       led to his decision to fire three gunshots at Hummer’s vehicle as the two drove

       down a highly trafficked interstate. Clark’s appalling recklessness put not only

       Hummer’s life in jeopardy but also the lives of his own children and the other

       drivers on the interstate.


[18]   Clark’s character also does not support a reduction in his sentence. Clark has

       prior convictions for Level 6 felony battery resulting in moderate bodily injury;

       Level 6 felony battery on a person less than fourteen years old; Level 6 felony

       domestic battery in the presence of a child less than sixteen years old; and two

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020   Page 9 of 10
       counts of Level 6 felony neglect of a dependent. Clark was also on probation at

       the time he committed the instant offenses and had a pending criminal case in

       another county when he was sentenced in this matter. Despite his prior

       contacts with the criminal justice system, Clark has not conformed his behavior

       to societal norms. Clark has failed to establish that his sentence is

       inappropriate.


[19]   For the reasons stated above, we affirm in part, reverse in part, and remand to

       the trial court with instructions to vacate the six and one-half years of Clark’s

       sentence that were suspended to probation, leaving Clark with a sentence of

       seven years of incarceration to be served.


[20]   Judgement affirmed in part, reversed in part, and remanded with instructions.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020   Page 10 of 10
