MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2017, 8:42 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 Sean C. Mullins Curtis T. Hill, Jr. Public Defender Attorney General of Indiana Crown Point, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Harvey Stephens, May 25, 2017 Appellant-Defendant, Court of Appeals Case No. 45A04-1612-CR-2927 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Samuel L. Cappas, Appellee-Plaintiff. Judge Trial Court Cause No. 45G04-0104-DF-90
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 1 of 8 Case Summary [1] Harvey Stephens (“Stephens”) brings a belated appeal pursuant to Indiana Post
Conviction Rule 2 to challenge the six-year aggregate sentence imposed in 2002
following his pleas of guilty to Theft1 and Attempted Theft,2 Class D felonies.
He presents three issues, which we consolidate and restate as a single issue:
whether the sentence is of such dubious validity that it constitutes fundamental
error.3 We reverse and remand for resentencing.
Facts and Procedural History [2] The facts underlying Stephens’ guilty pleas were described in the Stipulated
Factual Basis as follows in pertinent part:
On April 2, 2001 at a Wal-Mart Store, Hobart, Indiana, Harvey Stephens with his accomplices, Wendy Smith and Patricia Price, stole money from a store cash register by using IBM keys; and, on April 2, 2001 at a Target Store, Hobart, Indiana, Harvey
1 Ind. Code § 35-43-4-2. 2 I. C. §§ 35-43-4-2, 35-41-5-1. 3 We are unable to address the issue of inappropriateness, because the record – lacking a complete verified criminal history – is insufficient to permit meaningful review of the character of the offender pursuant to Indiana Appellate Rule 7(B). Stephens also asserted that his aggregate sentence should be capped at four years, the maximum sentence for the next highest felony, because his offenses constituted a single criminal episode, defined as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” I. C. § 35-50-1-2(b). The Stipulated Plea and Agreement does not provide for a sentencing cap of four years. However, the parties agreed that they were “free to fully argue their respective positions as to the sentence to be imposed.” (App. Vol. II at 33.) Thus, Stephens was not foreclosed from arguing that his offenses were a single continuing offense. Nonetheless, the Stipulated Factual Basis does not independently provide sufficient factual detail to establish the statutory criteria of close relation in time, place, and circumstance.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 2 of 8 Stephens with his accomplices, Wendy Smith and Patricia Price, attempted to steal money from a cash register by using IBM keys. However, they fled the store when approached by store employees and were later stopped by the police and arrested.
(App. Vol. II at 35.)
[3] On January 17, 2002, Stephens pleaded guilty to Theft and Attempted Theft
pursuant to a Stipulated Plea and Agreement. Therein, the State agreed not to
pursue a habitual offender enhancement and sentencing was left to the
discretion of the trial court. The trial court accepted the pleas and ordered the
compilation of a Presentence Investigation Report (“PSI”).
[4] On February 27, 2002, the trial court conducted a sentencing hearing. At the
commencement of the hearing, the following discussion ensued:
Court: The Defendant is in custody in the State of Ohio and wishes to be sentenced in his absence; is that correct, Mr. Clark?
Defense Attorney: Yes, it is, your Honor.
Court: All right. The probation department has sought to – sought a continuance in this matter, because records they requested from out of state have not been tendered. Therefore, the presentence report is incomplete, in their opinion. But even given that fact, the Defendant does wish to be sentenced in absentia; is that correct?
Defense Attorney: That’s correct.
Court: All right. Any corrections to the presentence report?
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 3 of 8 Defense Attorney: I haven’t even seen what this thing has, but I have no additional corrections. And, unfortunately, we can’t make any deletions, so we have none.
Court: All right. Any changes by the State:
Prosecutor: Not from the State, your Honor.
Court: All right. Any evidence for the Defendant?
Defense Attorney: No evidence, your Honor.
Court: Evidence for the State?
Prosecutor: No, your Honor.
(Sent. Tr. at 3-4.) The trial court heard brief argument from counsel, with each
counsel alleging facts outside the Stipulated Factual Basis. Thereafter, the trial
court advised the parties that he had reviewed “the criminal history
attachment” or “triple I” report. (Sent. Tr. at 5.) The trial court imposed the
maximum sentence possible, a three-year sentence for Theft and a three-year
sentence for Attempted Theft,4 to be served consecutively.
[5] Detainers were placed on Stephens during his incarceration in Ohio. On
October 21, 2016, he appeared in court in Indiana and was advised as to his
post-conviction rights and rights to an attorney. With assistance from a public
4 I. C. § 35-50-2-7.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 4 of 8 defender, on December 16, 2016, Stephens filed a petition seeking permission to
bring a belated appeal. On December 20, 2016, the trial court granted
Stephens’ petition. He now belatedly appeals his sentence.
Discussion and Decision [6] Stephens and the State agree that the instant sentence was imposed at the
culmination of irregular proceedings. The PSI, deemed incomplete by the
probation department, had apparently not been provided to defense counsel
prior to the sentencing hearing.5 In light of the probation department’s request
for a continuance, the trial court asked defense counsel to assess his client’s
wish to proceed, although Stephens was absent and not consulted. Although
the parties had agreed that Stephens had a criminal history, apparently
sufficient to support the filing of a habitual offender allegation, three versions of
that history had been compiled, and the details were not established by
admissible evidence. Defense counsel essentially abdicated his responsibility as
5 Indiana Code Section 35-38-1-12 provides that the trial court is to advise the defendant or his counsel of the factual contents and conclusions of the PSI or furnish a copy of the PSI “sufficiently in advance of sentencing so that the defendant will be afforded a fair opportunity to controvert the material included.” The purpose of the PSI is to provide information to the court for use at individualized sentencing. Yates v. State, 429 N.E.2d 992, 994 (Ind. Ct. App. 1982). “Of course, the pre-sentence report must contain only accurate information and therefore, a defendant is given the opportunity to refute the information in the report.” Id. In Gilbert v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2017, 8:42 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 Sean C. Mullins Curtis T. Hill, Jr. Public Defender Attorney General of Indiana Crown Point, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Harvey Stephens, May 25, 2017 Appellant-Defendant, Court of Appeals Case No. 45A04-1612-CR-2927 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Samuel L. Cappas, Appellee-Plaintiff. Judge Trial Court Cause No. 45G04-0104-DF-90
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 1 of 8 Case Summary [1] Harvey Stephens (“Stephens”) brings a belated appeal pursuant to Indiana Post
Conviction Rule 2 to challenge the six-year aggregate sentence imposed in 2002
following his pleas of guilty to Theft1 and Attempted Theft,2 Class D felonies.
He presents three issues, which we consolidate and restate as a single issue:
whether the sentence is of such dubious validity that it constitutes fundamental
error.3 We reverse and remand for resentencing.
Facts and Procedural History [2] The facts underlying Stephens’ guilty pleas were described in the Stipulated
Factual Basis as follows in pertinent part:
On April 2, 2001 at a Wal-Mart Store, Hobart, Indiana, Harvey Stephens with his accomplices, Wendy Smith and Patricia Price, stole money from a store cash register by using IBM keys; and, on April 2, 2001 at a Target Store, Hobart, Indiana, Harvey
1 Ind. Code § 35-43-4-2. 2 I. C. §§ 35-43-4-2, 35-41-5-1. 3 We are unable to address the issue of inappropriateness, because the record – lacking a complete verified criminal history – is insufficient to permit meaningful review of the character of the offender pursuant to Indiana Appellate Rule 7(B). Stephens also asserted that his aggregate sentence should be capped at four years, the maximum sentence for the next highest felony, because his offenses constituted a single criminal episode, defined as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” I. C. § 35-50-1-2(b). The Stipulated Plea and Agreement does not provide for a sentencing cap of four years. However, the parties agreed that they were “free to fully argue their respective positions as to the sentence to be imposed.” (App. Vol. II at 33.) Thus, Stephens was not foreclosed from arguing that his offenses were a single continuing offense. Nonetheless, the Stipulated Factual Basis does not independently provide sufficient factual detail to establish the statutory criteria of close relation in time, place, and circumstance.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 2 of 8 Stephens with his accomplices, Wendy Smith and Patricia Price, attempted to steal money from a cash register by using IBM keys. However, they fled the store when approached by store employees and were later stopped by the police and arrested.
(App. Vol. II at 35.)
[3] On January 17, 2002, Stephens pleaded guilty to Theft and Attempted Theft
pursuant to a Stipulated Plea and Agreement. Therein, the State agreed not to
pursue a habitual offender enhancement and sentencing was left to the
discretion of the trial court. The trial court accepted the pleas and ordered the
compilation of a Presentence Investigation Report (“PSI”).
[4] On February 27, 2002, the trial court conducted a sentencing hearing. At the
commencement of the hearing, the following discussion ensued:
Court: The Defendant is in custody in the State of Ohio and wishes to be sentenced in his absence; is that correct, Mr. Clark?
Defense Attorney: Yes, it is, your Honor.
Court: All right. The probation department has sought to – sought a continuance in this matter, because records they requested from out of state have not been tendered. Therefore, the presentence report is incomplete, in their opinion. But even given that fact, the Defendant does wish to be sentenced in absentia; is that correct?
Defense Attorney: That’s correct.
Court: All right. Any corrections to the presentence report?
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 3 of 8 Defense Attorney: I haven’t even seen what this thing has, but I have no additional corrections. And, unfortunately, we can’t make any deletions, so we have none.
Court: All right. Any changes by the State:
Prosecutor: Not from the State, your Honor.
Court: All right. Any evidence for the Defendant?
Defense Attorney: No evidence, your Honor.
Court: Evidence for the State?
Prosecutor: No, your Honor.
(Sent. Tr. at 3-4.) The trial court heard brief argument from counsel, with each
counsel alleging facts outside the Stipulated Factual Basis. Thereafter, the trial
court advised the parties that he had reviewed “the criminal history
attachment” or “triple I” report. (Sent. Tr. at 5.) The trial court imposed the
maximum sentence possible, a three-year sentence for Theft and a three-year
sentence for Attempted Theft,4 to be served consecutively.
[5] Detainers were placed on Stephens during his incarceration in Ohio. On
October 21, 2016, he appeared in court in Indiana and was advised as to his
post-conviction rights and rights to an attorney. With assistance from a public
4 I. C. § 35-50-2-7.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 4 of 8 defender, on December 16, 2016, Stephens filed a petition seeking permission to
bring a belated appeal. On December 20, 2016, the trial court granted
Stephens’ petition. He now belatedly appeals his sentence.
Discussion and Decision [6] Stephens and the State agree that the instant sentence was imposed at the
culmination of irregular proceedings. The PSI, deemed incomplete by the
probation department, had apparently not been provided to defense counsel
prior to the sentencing hearing.5 In light of the probation department’s request
for a continuance, the trial court asked defense counsel to assess his client’s
wish to proceed, although Stephens was absent and not consulted. Although
the parties had agreed that Stephens had a criminal history, apparently
sufficient to support the filing of a habitual offender allegation, three versions of
that history had been compiled, and the details were not established by
admissible evidence. Defense counsel essentially abdicated his responsibility as
5 Indiana Code Section 35-38-1-12 provides that the trial court is to advise the defendant or his counsel of the factual contents and conclusions of the PSI or furnish a copy of the PSI “sufficiently in advance of sentencing so that the defendant will be afforded a fair opportunity to controvert the material included.” The purpose of the PSI is to provide information to the court for use at individualized sentencing. Yates v. State, 429 N.E.2d 992, 994 (Ind. Ct. App. 1982). “Of course, the pre-sentence report must contain only accurate information and therefore, a defendant is given the opportunity to refute the information in the report.” Id. In Gilbert v. State, 982 N.E.2d 1087, 1092 (Ind. Ct. App. 2013), a panel of this Court found that the defendant’s due process rights had been violated when neither he nor his counsel was provided with a PSI until the day of the sentencing hearing.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 5 of 8 an advocate for his absent client to participate in the determination of a reliable
and reviewable sentence.
[7] On appeal, the State argues that Stephens’ counsel failed to object to any
irregularity, thereby waiving the matter for appellate review, while Stephens
contends that his sentence constitutes fundamental error. The doctrine of
fundamental error exists as an exception to the contemporaneous objection rule
and permits consideration on appeal of errors to which no objection was made
at trial. Stewart v. State, 567 N.E.2d 171, 174 (Ind. Ct. App. 1991), trans. denied.
“[T]he error must be one such that the defendant could not possibly have had a
fair trial or such that this court is left with the conviction that the verdict or
sentence is clearly wrong or of such dubious validity that justice cannot permit
it to stand.” Id.
[8] The PSI of record is incomplete, although it includes a summary:
Defendant has extensive prior contact with the criminal justice system. He has no known juvenile adjudications. Regarding the total number of misdemeanor and felony convictions, this information is not yet available. According to the NCIC, the defendant has numerous arrest[s] throughout the state of Ohio. In addition, it is believed that he has been incarcerated.
(App. Vol. II at 93.)
[9] Also appearing in the Appendix is a form titled “Record Check by Prosecuting
Attorney.” (App. Vol. II at 12.) The checked boxes on the form indicate that
Stephens was not on probation or parole, did not have other charges pending,
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 6 of 8 and was not on bond. Prior felony convictions were listed as a 1981 conviction
in Ohio for Forgery, a federal conviction in 1983 for Forging Endorsement on
U.S. Bond, a 1991 conviction in Ohio for Theft and a 1991 conviction in Ohio
for Carrying a Concealed Weapon. However, the sentencing transcript does
not suggest that this form was submitted as an evidentiary exhibit.
[10] Based upon the trial court’s comments at sentencing, it appears that he wholly
relied upon a third source, a “triple I report,” outside the evidentiary record or
appendix. (Sent. Tr. at 5.) The sentencing order recites Stephens’ prior
criminal history as a conviction for “possession of CDS, a felony,” Forgery in
1985, Forgery in 1989, and other convictions – at unspecified times – for Theft,
Robbery, Attempted Grand Theft, Forgery, and Carrying a Concealed
Weapon. (Sent. Tr. at 7-8.) Also, the trial court found Stephens’ use of aliases,
multiple Social Security numbers, and multiple dates of birth to be an
aggravating circumstance. However, this information was not in the PSI or a
separate evidentiary exhibit.
[11] Having ordered a PSI, the trial court refused to grant a continuance for its
completion, disregarded the incomplete PSI, and assigned credibility to an
unverified attachment described as a Triple I report. Stephens was afforded no
opportunity to refute the information therein. Nor was he afforded any
meaningful opportunity to respond to the varying accounts of his criminal
history. Also, due to the lack of dates of many purported offenses, defense
counsel was unable to make any argument as to remoteness. Under these
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 7 of 8 circumstances, we conclude that the sentence is of such dubious validity that it
constitutes fundamental error.
Conclusion [12] We reverse the sentence and remand for a new sentencing hearing predicated
upon compliance with Indiana Code Sections 35-38-1-8 and 35-38-1-12.
[13] Reversed and remanded.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 8 of 8