Darlene Kay Herran v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2019
• Docket: 18A-CR-3131
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 27 2019, 6:54 am court except for the purpose of establishing 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 Dale W. Arnett Curtis T. Hill, Jr. Winchester, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darlene Kay Herran, June 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3131 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Kit C. Dean Crane, Appellee-Plaintiff. Judge Trial Court Cause No. 33C02-1802-F5-9

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 1 of 13 STATEMENT OF THE CASE [1] Appellant-Defendant, Darlene Herran (Herran), appeals the trial court’s Home

Detention Order and Agreement and its Order to Pay Transcription Costs

following her guilty plea to operating a motor vehicle after forfeiture for life, a

Level 5 felony, Ind. Code § 9-30-10-17(a)(1).

[2] We affirm.

ISSUES [3] Herran presents three issues on appeal, which we restate as:

(1) Whether the trial court improperly ordered that it may assess the cost of

the preparation of the transcript to Appellate Counsel;

(2) Whether the trial court’s Home Detention Order and Agreement is

subject to reversal for failing to comply with statutory notice

requirements set out for electronic monitoring devices; and

(3) Whether the trial court abused its discretion when it imposed a condition

of Herran’s home detention that effectively prohibited her from living

with her husband.

FACTS AND PROCEDURAL HISTORY [4] On February 22, 2018, Herran was observed driving north on 18th Street in New

Castle, Indiana, by an officer of the New Castle Police Department who

recognized her as a lifetime habitual traffic offender. After confirming that

Herran’s driver’s license was subject to an indefinite suspension, the officer

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 2 of 13 performed a traffic stop and subsequently arrested Herran. On February 23,

2018, the State filed an Information, charging Herran with operating a motor

vehicle after forfeiture for life, a Level 5 felony. On February 23, 2018, the trial

court found Herran to be indigent and appointed a public defender to represent

her.

[5] On November 29, 2018, pursuant to a plea agreement with the State, Herran

pleaded guilty to Level 5 felony operating a motor vehicle after forfeiture for

life. According to the terms of the plea agreement, Herran would receive a

sentence of five years, with three years to be executed on home detention and

two years suspended to probation. A pending charge of conversion in another

criminal matter was also dismissed. The plea agreement further provided that

Herran could seek a modification of her placement after completing one and

one-half years of her home detention. Prior to the entry of her guilty plea, the

trial court reviewed Herran’s constitutional trial rights, which the trial court

found she understood and waived voluntarily. Herran affirmed to the trial

court that she had read the terms of her plea agreement, discussed it with her

attorney, signed it, and understood that she could not request any modification

of placement on home detention for 401 days. The trial court found that

Herran knowingly and voluntarily pleaded guilty and that it should accept the

plea agreement and be bound by its terms. The trial court accepted the plea

agreement and sentenced Herran according to its terms. In its written

sentencing order, the trial court granted the withdrawal of Herran’s public

defender.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 3 of 13 [6] On November 29, 2018, the trial court also entered its Home Detention Order

and Agreement which enumerated the conditions of Herran’s home detention.

The written standard conditions of Herran’s home detention provided that

“[n]o person convicted of a felony will be allowed to live at or visit your

residence.” (Appellant’s App. Vol. II, p. 47). Directly above the signature line

of the Home Detention Order and Agreement was the following averment:

I have read the above terms and conditions of home detention and had those terms and conditions fully explained to me. I have received a copy of said terms. I agree to comply with all terms and conditions specified.

(Appellant’s App. Vol. II, p. 49). On November 29, 2018, Herran and Herran’s

public defender signed the Home Detention Order and Agreement. Home

detention was scheduled to commence on or before December 3, 2018. The

trial court’s Probation Order and Agreement, which Herran also executed on

November 29, 2018, did not contain any prohibition on her living with a felon.

[7] On December 7, 2018, Herran filed an unverified pro se motion with the trial

court seeking reconsideration of the conditions of her home detention to allow

her to live with her husband, who she stated had been on parole since July

2018. On December 18, 2018, the trial court denied Herran’s motion. On

December 18, 2018, Appellate Counsel filed his appearance along with

Herran’s unverified motion seeking to allow her to live with her husband while

on home detention. Herran claimed that the condition of her home detention

prohibiting her from living with a felon constituted an infringement upon her

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 4 of 13 right to “society” with her husband and was an undue economic hardship.

(Appellant’s App. Vol. II, p. 10). On December 20, 2018, the trial court denied

Herran’s second motion without a hearing and without entering any findings of

fact or conclusions of law.

[8] Herran filed a notice of appeal on December 31, 2018, in which Appellate

Counsel was identified as “pro bono” counsel. (Appellant’s App. Vol. II, p. 57).

In her notice of appeal, Herran requested that the Henry Circuit Court 2

Reporter prepare a transcript of the November 29, 2018, sentencing hearing and

furnish it to Appellate Counsel. Herran attached to her notice of appeal a copy

of the chronological case summary entry dated February 27, 2018, noting that

the trial court had found her indigent and had appointed her a public defender

for purposes of addressing the operating while forfeited for life charge.

[9] On January 11, 2019, we granted a motion by Herran to proceed in forma

pauperis and expressly relieved her of the obligation to pay the filing fee for her

appeal. On January 24, 2019, the Clerk of the Henry Circuit Court 2 filed a

notice indicating that the transcript had not yet been completed. 1 On January

25, 2019, the trial court entered its Order to Pay Transcription Costs as follows:

[Appellate Counsel] contacted court staff to request the preparation of a transcript. Until just recently and after the transcript had already been completed, [Appellate Counsel] did not advise the [c]ourt that he expected that the transcript be

1 An invoice included in the Appendix indicates that the transcript was delivered by the court reporter on January 8, 2019.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 5 of 13 prepared at no cost to [Herran]. In fact, the [c]ourt has never received any pleading from [Appellate Counsel] requesting such a finding, nor have there been any pleadings filed asserting indigency. Due to high volume, the [c]ourt uses outside services to prepare transcripts. Accordingly, the [c]ourt FINDS and ORDERS as follows:

The Henry County Auditor shall pay . . . the sum of $94.50 as costs of transcript service to [the ] Court Reporter . . . [Appellate Counsel] however, is put on notice that the [c]ourt may assess such costs against [Appellate Counsel].

(Appellant’s App. Vol. II, p. 61). On January 31, 2019, Herran filed a motion

to correct error requesting that the trial court not assess the cost of the transcript

preparation to Appellate Counsel. The trial court did not rule on the motion.

[10] Herran now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Costs of Transcript

[11] Herran first contends that the trial court erroneously ordered that Appellate

Counsel may be assessed the costs of the preparation of the transcript. The

State counters that the issue is not ripe for appeal because the trial court’s Order

to Pay Transcription Costs did not, in fact, assess those costs to Appellate

Counsel and merely warned that it may do so. The concept of ripeness refers to

the degree that the defined issues in a case are based on actual facts, not abstract

possibilities, and are capable of being decided on an adequately developed

record. Buck v. Grube, 833 N.E.2d 110, 118 n.7 (Ind. Ct. App. 2005). In ruling

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 6 of 13 on ripeness, we consider the fitness of the issue for judicial decision as well as

the hardship to the parties of withholding a decision on the merits. Id.

[12] We agree with the State that this issue is not ripe for appeal. The transcript was

paid for with public funds, and this appeal has proceeded in due course. The

trial court did not yet order Appellate Counsel to pay the costs of the

preparation of the transcript. Neither Herran nor Appellate Counsel have

sustained any injury, and, therefore, we decline to address the issue. 2

II. Notice Requirement for Electronic Surveillance

[13] Herran next briefly argues that the trial court failed to adequately notify her of

the use of an electronic monitoring device as part of her home detention. She

therefore asks us to determine “that any conditions of electronic monitoring in

this matter be declared null and void.” (Appellant’s Br. p. 9). The terms of

Herran’s home detention order and agreement provided that she “shall ensure

compliance with this [c]ourt’s order on home detention by wearing an

2 [1] We note that a party who was permitted to proceed in the trial court in forma pauperis may proceed in like manner on appeal without prior authorization from the trial court or the appellate court. Ind. Appellate Rule 40(A)(1). If a party is granted in forma pauperis status by this court, the effect is that the party “is relieved of the obligation to prepay filing fees or costs in either the trial court or the Court on Appeal or to give security therefor[.]” App. R. 40(D)(1) (emphasis added). Costs are defined, in relevant part, in the Appellate Rules as “the cost of preparing the Record on Appeal, including the Transcript[.]” App. R. 67(B)(2). Thus, a defendant who has been determined to be indigent is entitled to a transcript on appeal at public expense. See I.C. § 33-40-8-5; see also Hollowell v. State, 19 N.E.3d 263, 266-67 (Ind. 2014) (noting that, after the Court of Appeals had granted him in forma pauperis status, Hollowell was entitled to a transcript of his post-conviction relief hearing at public expense); Wright v. State, 772 N.E.2d 449, 461 (Ind. Ct. App. 2002) (“[C]riminal defendants in Indiana who cannot afford to pay for a transcript are still entitled to one if they are found to be indigent.”).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 7 of 13 electronic non-removable anklet twenty-four (24) hours a day during the period

of detention[.]” (Appellant’s App. Vol. II, p. 47).

[14] Herran directs us to Indiana Code section 35-38-2.5-11, which provides that

[b]efore entering an order for home detention that requires the use of a monitoring device described in section 3.3 of this chapter the court shall inform the offender and other persons residing in the home of the nature and extent of electronic surveillance provided by the monitoring device in the home.

Assuming, without deciding, that she preserved this claim, section 35-38-2.5-11

applies to Herran’s electronic monitoring device, and the trial court failed to

provide adequate notice, we conclude that, on the record before us, Herran is

unable to demonstrate that she has suffered any prejudice. We will not reverse

any order or action by a trial court unless it impacts the defendant’s substantial

rights. See App. Rule 66(A). Herran alleges a lack of notice, and her claim of

prejudice is that “electronic monitoring should be disallowed because more

expansive terms of that condition may be applied than were noticed to the

probationer.” Our review of the conditions of the home detention order and

agreement leads us to conclude that Herran was put on notice that her presence

and absence from her home would be monitored by the anklet. Without any

evidence that some other form of monitoring was imposed in this case, we

cannot conclude that Herran’s substantial rights have been impacted by any

error on the part of the trial court. See id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 8 of 13 III. Prohibition on Living or Visiting with Felons in Home

[15] Herran’s final contention on appeal is that the condition of her home detention

prohibiting her from cohabitating or visiting with felons in her home infringes

upon her constitutionally-protected, fundamental right to marriage. Herran

essentially argues that the condition is unconstitutional as it applies to her

because its effect is to prevent her from living with her spouse, who she

represents is a convicted felon. Thus, Herran requests that we invalidate this

condition of her home detention.

[16] The State counters with a number of arguments as to why we should not

address the merits of Herran’s arguments, including that Herran has waived her

argument by failing to raise these issues below. Our review of the record

indicates that the Home Detention Order and Agreement was executed after the

conclusion of the sentencing hearing, and, therefore, Herran had no

opportunity to object at the trial level apart from raising the issue in her

subsequent motions. Although her argument was not as well developed below

as on appeal, we find it was sufficiently raised in her motions to preserve it for

our review. In addition, contrary to the State’s assertion that Herran invited

any error when she entered into her plea agreement and signed the Home

Detention Order and Agreement, we note that even when a defendant enters

into an agreement enumerating conditions as part of her conditional freedom,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 9 of 13 we will review the propriety of those agreed-upon conditions. See, e.g., Green v.

State, 719 N.E.2d 426, 430 (Ind. Ct. App. 1999) (finding the condition of work

release agreement that Green had signed obligating him to waive his 4th

Amendment rights as to any law enforcement officer to be overly broad).

[17] The State also argues that we should not address Herran’s claim because she

waived her right to seek any modification of her placement when she entered

into the fixed-term plea agreement and the Home Detention Order and

Agreement. The General Assembly has recently amended the sentence

modification statute, Indiana Code section 35-38-1-17 (2018). As of the writing

of this opinion, the effect of these amendments on the ability of a defendant to

seek modification of a sentence imposed pursuant to a fixed-term plea

agreement is being reviewed by our supreme court. See State v. Stafford, 117

N.E.3d 621 (Ind. Ct. App. 2018), trans. granted; Rodriguez v. State, 116 N.E.3d

515 (Ind. Ct. App. 2018), trans. granted. However, we need not resolve the issue

because we conclude that, even if Herran had the ability to seek modification of

her sentence, she is not entitled to relief on the merits of her claim.

[18] It is well-established that, once a trial court accepts a plea agreement, it is

bound by its terms. I.C. § 35-35-3-3(e); State v. Smith, 71 N.E.3d 368, 370 (Ind.

2017). Our supreme court has held that if a plea agreement is silent as to the

conditions of probation and does not reserve to the trial court the discretion to

impose probation conditions, the trial court may impose only those conditions

that do not “materially add to the punitive obligation” provided for by the plea

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 10 of 13 agreement. Freije v. State, 709 N.E.2d 323, 324-25 (Ind. 1999). For example,

even if not specifically provided for in the plea agreement, a trial court may

impose certain administrative or ministerial conditions, such as reporting

requirements, providing notification of changes in employment or address, and

remaining within the jurisdiction of the court. Id. at 325. These are the sort of

conditions that are regularly imposed upon a defendant subject to probation,

and a defendant who enters into a plea agreement that calls for a sentence to be

served on probation should reasonably expect that the county’s standard

conditions may apply. Id. However, if a condition materially adds to the

punitive obligation of a sentence, it may not be imposed in absence of a

provision in the plea agreement providing the trial court with discretion to set

the conditions of probation. Id.

[19] Freije involved conditions of probation, as opposed to the conditions of home

detention at issue here. However, we have analogized home detention to

probation. Although different statutory schemes are involved in these two

forms of alternative commitment, we see no reason why Freije would not apply

equally to home detention conditions. See, e.g., Rodriguez v. State, 714 N.E.2d

667, 670 (holding that the same standard of review applies to home detention

conditions and conditions of probation).

[20] Here, Herran’s plea agreement did not specifically provide for the conditions of

home detention, and it did not reserve to the trial court the discretion to impose

those conditions. Thus, the discretion of the trial court to impose conditions of

home detention was limited to those which did not materially add to the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 11 of 13 punitive obligations of the sentence. See Freije, 709 N.E.2d at 325. The

condition at issue here was entered as part of the standard conditions of the

home detention order and agreement, which is the type of ministerial or

administrative condition which could be imposed without being expressly

provided for in the plea agreement. Id.

[21] Herran argues that the challenged condition unduly infringes upon her

fundamental right to be married. It has been recognized that citizens have a

fundamental right to enter into and maintain a marriage relationship. See, e.g.,

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113

(1942) (“Marriage and procreation are fundamental to the very existence and

survival of the race.”). However, the condition of Herran’s home detention

prohibiting her from living with a felon or having a felon visit her home did not

implicate Herran’s ability to remain legally married to her spouse, nor did it

materially add to the punitive obligations of her sentence. It does not require

her to divorce her husband, legally separate from him, or to alter her legal status

as to her spouse in any way. This was not a ‘no-contact’ order prohibiting

Herran from having any contact with her spouse. Because this standard

condition of home detention did not materially add to the punitive obligation of

Herran’s sentence, we conclude that the trial court did not abuse its discretion

when it entered its Home Detention Order and Agreement. See Freije, 709

N.E.2d at 325.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 12 of 13 CONCLUSION [22] Based on the foregoing, we conclude that the issue of whether the trial court

could assess the cost of the transcript to pro bono Appellate Counsel is not ripe

for our consideration and that Herran has not demonstrated that she was

prejudiced by any failure on the part of the trial court to provide additional

notice to her regarding the electronic monitoring of her home detention. We

also conclude that the standard condition of the Home Detention Order and

Agreement having the effect of precluding Herran from living with her spouse

was not an abuse of the trial court’s discretion.

[23] Affirmed.

[24] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3131 | June 27, 2019 Page 13 of 13