Andrew S. Raines v. State of Indiana (mem.dec.)

• Court: Indiana Court of Appeals
• Decided: October 31, 2017
• Docket: 86A05-1705-CR-965
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 31 2017, 9:47 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Linda L. Harris Curtis T. Hill, Jr. Kentland, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrew S. Raines, October 31, 2017 Appellant-Defendant, Court of Appeals Case No. 86A05-1705-CR-965 v. Appeal from the Warren Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Hunter J. Reece, Judge Trial Court Cause No. 86C01-1612-F6-52

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 1 of 12 [1] Following a jury trial, Andrew S. Raines (“Raines”) was convicted of Level 6

felony auto theft.1 Previously, Raines had pleaded guilty, in the same cause of

action, to two counts of Class B misdemeanor false informing. 2 The trial court

sentenced Raines on the three convictions, and he now appeals, raising the

following two restated issues:

I. Whether the trial court abused its discretion in sentencing Raines because, at the sentencing hearing, the trial court had stated Raines was to serve his incarceration at Indiana Department of Correction (“DOC”), but in its written sentencing order, the trial court ordered Raines to serve his time at the Warren County Jail; and

II. Whether the State, during the rebuttal portion of its closing argument, committed prosecutorial misconduct that constituted fundamental error.

[2] We affirm.

Facts and Procedural History [3] On December 19, 2016, Raines was living with a woman known as Lela Faye

(“Faye”) and her nine-year-old son (“Son”). Due to an altercation that was

occurring at their residence, Faye instructed Son to run to the home of her

friend, Patricia Stump (“Stump”), and summon help. Stump at that time was

living with her then-boyfriend, Sean Ingram (“Ingram”), in an apartment.

1 See Ind. Code § 35-43-4-2.5(b)(1). 2 See Ind. Code § 35-44.1-2-3(d)(1).

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 2 of 12 Stump’s friend, Rachel Cooper (“Cooper”), lived in the apartment located

above Stump. Son knocked on Stump’s door and asked for help, and, in

response, Stump and Cooper drove Son back to Faye’s house in Ingram’s

Subaru Legacy vehicle, while Ingram remained with Stump’s children. When

Stump and Cooper arrived, Faye and Raines were on the front porch. Stump

and Cooper asked Raines to leave, an argument or an altercation ensued, and

the police were called. Before police arrived, Raines ran from the house, got in

Ingram’s Subaru, and drove away. Eight days later, on December 27, 2016,

authorities found Ingram’s Subaru, along with Raines, in St. Louis, Missouri.

[4] The State charged Raines with Count I, Level 6 felony auto theft and Counts II

and III, Class B misdemeanor false informing. Appellant’s App. Vol. II at 2-3.

On March 6, 2017, Raines pleaded guilty to the two counts of false informing,

and, on March 23, 2017, a jury trial was held on the auto theft charge.

[5] At trial, one issue was whether Ingram had given his consent to Raines to take

the Subaru. Among other witnesses, Stump, Cooper, and Ingram testified for

the State, and Raines testified in his defense. Stump stated that Raines did not

ask her if he could take the Subaru before he left in it, and Cooper testified,

“[Raines] asked nobody’s permission, he just walked out” and left in Ingram’s

car. Tr. Vol. II at 59. Ingram testified that he gave his permission to Stump to

take his car to Faye’s house, but he did not give his consent to Raines to use or

take the Subaru on that date. Id. at 65, 66-67. Raines testified that he had

driven Ingram’s car on several prior occasions and that Ingram previously had

told him, “[Y]ou can use the car anytime you want it. Anytime that you need

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 3 of 12 to use the car, you can use it.” Id. at 83. Raines stated that, to get away from

the “commotion” at Faye’s home, he left in Ingram’s car and drove to Ingram’s

house, where Ingram was on the front porch. According to Raines, Ingram

suggested to Raines that he should “get out of here[,]” telling Raines that he

would call him “when the smoke clears.” Id. at 82-83, 85.

[6] During closing argument, defense counsel suggested that Ingram might have

given his consent, as Raines claimed, but testified to the contrary because he did

not want to contradict Stump. Counsel argued, “[Ingram]’s not going to do

that. He wouldn’t do that because they live together, he doesn’t want the

controversy.” Id. at 102. The State’s rebuttal included the following remarks,

with which Raines now takes issue:

The evidence that is established by people who have no motive to come here and lie to you. In fact, that’s the only way they can get in trouble. The only way they can get in trouble is to come in here and lie just as he did two [] prior occasions. There is no motive for them to do that, and they came in here and they told you what happened.

Id. at 104. Raines did not object to the prosecutor’s comments.

[7] The jury found Raines guilty of Level 6 auto theft. At the April 18, 2017

sentencing hearing, the trial court sentenced Raines to two years on Count I

and to 180 days each on Counts II and III, which were ordered to be served

concurrent with each other and concurrent with Count I. At the hearing, the

trial court stated that Raines was sentenced to “two years in the [DOC]” with

credit for pretrial confinement. Id. at 124. In the trial court’s Judgment of Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 4 of 12 Conviction and Pronouncement of Sentence, issued that same date, the trial

court ordered that Raines was sentenced to “two [] years of incarceration in the

Warren County Jail,” reduced by pretrial confinement.3 Appellant’s App. Vol. II

at 33.

[8] In May 2017, Raines filed a notice of appeal with this court, and, on July 18,

2017, he filed with the trial court a motion to correct erroneous sentence, asking

the trial court to correct its sentencing order “to reflect that [Raines] was

sentenced to two years in [DOC] rather than two years in the Warren County

Jail.” Appellee’s App. Vol. II at 19, 22. That same day, the trial court issued an

order that denied the motion, explaining that, under Indiana Code section 35-

38-3-3, which became effective on March 29, 2017, a trial court “may not

commit a person convicted of a Level 6 felony to the [DOC]” unless certain

circumstances existed, none of which were applicable to Raines and, thus, the

trial court sua sponte “corrected its own mistake” and sentenced Raines to the

Warren County Jail instead of DOC. Id. at 23. Thereafter, on August 11,

2017, Raines filed his Appellant’s Brief and now appeals.

3 We note that on May 1, 2017, the trial court issued a Nunc Pro Tunc order for the April 28, 2017 Judgment of Conviction and Pronouncement of Sentence, adding a sentencing to state that Raines was indigent and that appointment of pauper counsel was warranted. Appellant’s App. Vol. II at 35-36.

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 5 of 12 Discussion and Decision

I. Sentencing [9] Raines argues that the trial court erred in sentencing him because, during the

sentencing hearing, the trial court stated that it was sentencing Raines to two

years in DOC, but its subsequent written Pronouncement of Sentence ordered

Raines to two years of incarceration in the Warren County Jail. Raines did not

provide us with an applicable standard of review, as required by Indiana

Appellate Rule 46(A)(8)(b). Because the trial court sentenced Raines within the

statutory range for his convictions, see Ind. Code sections 35-50-2-7 (Level 6

felony) and 35-50-3-3 (Class B misdemeanor), we will review the trial court’s

sentencing decision for an abuse of discretion. See Barker v. State, 994 N.E.2d

306, 311 (Ind. Ct. App. 2013) (“[A]s long as a sentence is within the statutory

range, it is subject to review only for an abuse of discretion.”). An abuse of

discretion occurs where the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before it. Id.

[10] On appeal, Raines (1) restates what happened, i.e, that the trial court’s remarks

at the hearing indicated he was sentenced to two years at DOC, but the written

Pronouncement of Sentence ordered that he was sentenced to two years at the

Warren County Jail, and (2) indicates that he would be filing a Motion to

Correct Erroneous Sentence. Other than that, Raines presented no argument,

reasoning, or authority in support of his position that the trial court abused its

discretion when it sentenced him to the Warren County Jail rather than to

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 6 of 12 DOC. Thus, his argument on this issue is waived. Ind. Appellate Rule

46(A)(8)(a). Waiver notwithstanding, we find no error.

[11] As an initial matter, we observe that Raines’s Appellant’s Brief, filed August 11,

2017, states that he “will be filing a Motion to Correct Erroneous Sentence

pursuant to I.C. 35-38-1-15 contemporaneously with the filing of Appellant’s

Brief.” Appellant’s Br. at 9. However, the record before us reflects that, before

he filed his Appellant’s Brief on August 11, Raines already had filed his Motion

to Correct Erroneous Sentence on July 18, 2017 and that the trial court denied

his motion the same day by written order (“the July 18 Order”), explaining:

After imposing sentence [at the sentencing hearing], the Court recalled that recent legislation prohibited most [L]evel 6 felons from being incarcerated at DOC, absent an exception, thus the Court sua sponte corrected its own misstatement. Effective March 29, 2017, I.C. § 35-38-3-3 was amended to provide that “a court may not commit a person convicted of a Level 6 felony to the department of correction, unless . . .” one of the exceptions provided for in I.C. § 35-38-3-3(d)(l), (d)(2)(A), (d)(2)(b) or (d)(2)(C) are met. None of those exceptions applied here. The DOC’s acceptance or rejection of inmates, sentenced to incarceration, is not an issue for the trial court. Therefore, the Court’s Order made a correction to a statement that was merely dicta, as the Defendant’s placement was controlled by statu[t]e, not the Court.

For the forgoing reasons, the Court finds and clarifies that the Defendant’s sentence on Count I was two (2) years of incarceration. Any reference to DOC or the Warren County Jail was dicta, and the Defendant may be incarcerated wherever appropriate, be it prison or jail. Though it appears from the facts of this case that he is not eligible to be incarcerated at DOC.

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 7 of 12 Appellee’s App. Vol. II at 23 (emphasis added).

[12] Although not raised by either party, we note that we had some question about

the trial court’s jurisdiction to issue the July 18 Order.4 Under Indiana

Appellate Rule 8, “[t]he Court on Appeal acquires jurisdiction on the date the

trial court clerk issues its Notice of Completion of Clerk’s Record.” The

general rule is that, once an appeal is perfected, the trial court loses subject

matter jurisdiction over the case. Clark v. State, 727 N.E.2d 18, 20 (Ind. Ct.

App. 2000). The policy underlying the rule is to facilitate the efficient

presentation and disposition of the appeal and to prevent the simultaneous

review of a judgment by both a trial and appellate court. Id. at 21.

[13] Here, the CCS does not reflect a date of filing of Notice of Completion of

Clerk’s Record; however, the CCS contains two separate dates of filing Notice

of Completion of Transcript: June 16 and June 29, 2017. Raines’s Appellant’s

Brief was initially tendered July 17, 2017, but officially filed, after correction of

defects, on August 11, 2017. Given this timeline, and pursuant to Indiana

Appellate Rule 45(B), requiring the appellant’s brief to be filed thirty days after

Completion of the Clerk’s Record, we infer that the Clerk’s Record was

complete before Raines tendered his Appellant’s Brief on July 17, 2017. Thus,

the trial court’s July 18 Order was issued after this Court had acquired

4 “Subject matter jurisdiction cannot be waived, and courts are required to consider the issue sua sponte.” Watkins v. State, 869 N.E.2d 497, 499 (Ind. Ct. App. 2007).

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 8 of 12 jurisdiction. However, while the general rule is that trial courts lose jurisdiction

once the appeal is perfected, there are exceptions that permit the trial court to

retain jurisdiction notwithstanding an appeal. “For example, a trial court may

retain jurisdiction to reassess costs, correct the record, enforce a judgment,

continue with a trial during an interlocutory appeal concerning venue, or

preside over matters which are independent of and do not interfere with the

subject matter of the appeal.” Clark, 727 N.E.2d at 21 (emphasis added). In

this case, we find that the trial court’s July 18 Order did even less than “correct

the record,” as that Order merely clarified that its written Pronouncement of

Sentence “corrected its own misstatement” that was made at the sentencing

hearing. Appellee’s App. Vol. II at 23. The trial court’s July 18 Order is thus not

void for lack of jurisdiction, and we now turn to it.

[14] The July 18 Order explained that, following the hearing that same date, the trial

court realized that its statement at the hearing indicating that Raines would

serve his two years at DOC was incorrect because, under Indiana Code section

35-38-3-3(d), it could not sentence Raines to DOC. That statute reads:

After December 31, 2015, a court may not commit a person convicted of a Level 6 felony to the department of correction unless:

(1) the commitment is due to the revocation of the person’s sentence for violating probation, parole, or community corrections and the revocation of the person’s sentence is due to a new criminal offense; or

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 9 of 12 (2) the person:

(A) is convicted of a Level 6 felony and the sentence for that felony is ordered to be served consecutively to the sentence for another felony;

(B) is convicted of a Level 6 felony that is enhanced by an additional fixed term under IC 35-50-2-8 through IC 35-50-2-16; or

(C) has received an enhanced sentence under IC 9- 30-15.5-2;

and the person’s earliest possible release date is more than three hundred sixty-five (365) days after the date of sentencing.

Ind. Code § 35-38-3-3(d).

[15] Raines was convicted of a Level 6 felony, and none of the statute’s exceptions

applied to Raines; therefore, the trial court could not sentence Raines to DOC.

Accordingly, Raines has failed to show that the trial court abused its discretion

when it sentenced him to two years at the Warren County Jail.

II. Prosecutorial Misconduct [16] Raines asserts that the State committed prosecutorial misconduct in its rebuttal

closing argument by making “vouching statements” concerning “the State’s

witnesses.” Appellant’s Br. at 10. Specifically, Raines challenges the following:

The evidence that is established by people who have no motive to come here and lie to you. In fact, that’s the only way they can

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 10 of 12 get in trouble. The only way they can get in trouble is to come in here and lie just as he did two [] prior occasions. There is no motive for them to do that, and they came in here and they told you what happened.

Tr. Vol. II at 104. He claims that the State “implicitly told the jury, [‘]listen, my

witnesses told you the truth because they didn’t get in trouble for coming before

you and testifying[,] and therefore they are not lying.[’]” Appellant’s Br at 10.

[17] “To preserve a claim of prosecutorial misconduct, the defendant must—at the

time the alleged misconduct occurs—request an admonishment to the jury, and

if further relief is desired, move for a mistrial.” Ryan v. State, 9 N.E.3d 663, 667

(Ind. 2014). Raines concedes that at trial he did not pose any objection to the

State’s closing argument, and, therefore, to avoid procedural default, he must

establish fundamental error. Appellant’s Br. at 10 (citing Booher v. State, 773

N.E.2d 814, 817 (Ind. 2002)). The fundamental error exception is an extremely

narrow exception to the waiver rule and requires the defendant to show that the

alleged errors are so prejudicial to his or her rights as to make a fair trial

impossible. Ryan, 9 N.E.3d at 668. “In other words, to establish fundamental

error, the defendant must show that, under the circumstances, the trial judge

erred in not sua sponte raising the issue because alleged errors (a) constitute

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

(b) present an undeniable and substantial potential for harm.” Id. (internal

quotations omitted).

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 11 of 12 [18] The State maintains that the challenged rebuttal remarks were a permissible

response to defense counsel’s closing argument, which implied that Stump and

Cooper lied when testifying because they were upset with Raines and that

Ingram lied because he lived with Stump and did not want to contradict her and

thereby create controversy. According to the State, “‘The prosecutor was

entitled to counter with argument that the witness[es were] not lying and had

no reason to do so.’” Appellee’s Br. at 12 (quoting Dumas v. State, 803 N.E.2d at

1113, 1118 (Ind. 2004)). Even assuming that the challenged portion of the

State’s rebuttal argument constitutes vouching and prosecutorial misconduct, as

Raines’s contends, we find that Raines’s claim fails as he has not established

fundamental error. He has not argued or explained in what way the

prosecutor’s comments were so prejudicial to him that a fair trial was

impossible, nor has he shown that the trial judge erred in not sua sponte raising

the issue. See Ryan, 9 N.E.3d at 668. Raines’s assertion of prosecutorial

misconduct fails.

[19] Affirmed.

Najam, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 86A05-1705-CR-965 | October 31, 2017 Page 12 of 12