MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 13 2017, 9:31 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Lamarr T. Crittenden Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lamar T. Crittenden, March 13, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1512-CR-2183 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F Borges, Appellee-Plaintiff Judge Trial Court Cause No. 49G04-0810-FA-227401
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 1 of 16 [1] Following a bench trial, Lamar T. Crittenden was convicted of one count of
child molesting as a Class A felony and one count of child molesting as a Class
C felony. Crittenden was originally sentenced to an aggregate term of thirty-
five years, with five years suspended. Crittenden’s convictions and sentence
were affirmed on direct appeal. See Crittenden v. State, No. 49A05-0906-CR-355
(Ind. Ct. App. Jan. 21, 2010), trans. denied (Crittenden I). Crittenden, pro se,
filed a petition for post-conviction relief arguing, in part, that his trial and
appellate counsel rendered ineffective assistance with regard to sentencing. The
post-conviction court agreed and remanded for a new sentencing hearing.
Crittenden appealed, challenging several of the post-conviction court’s
procedural rulings as well as its denial of his remaining claims of ineffective
assistance of trial and appellate counsel. In a memorandum decision, this court
affirmed the post-conviction court’s rulings and decision. Crittenden v. State,
49A05-1405-PC-227 (Ind. Ct. App. June 30, 2015) (Crittenden II).
[2] At the resentencing hearing, the trial court again sentenced Crittenden to an
aggregate term of thirty-five years, with five years suspended. Crittenden, pro
se, appeals, challenging the sentence imposed on several grounds:
1. Did the trial court have subject matter jurisdiction?
2. Did the trial court properly sentence Crittenden?
3. Did the trial court properly classify Crittenden as a sexually violent predator?
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 2 of 16 4. Did Crittenden receive ineffective assistance of counsel at his resentencing hearing?
5. Did the trial court properly amend the sentence imposed?
[3] We affirm.
Facts & Procedural History
[4] The facts underlying Crittenden’s convictions were set forth by this court on
direct appeal as follows:
In 2006, Crittenden began cohabiting with Shontae Matlock and her daughter D.M., born February 8, 1999, on Denny Street in Indianapolis. On one occasion during 2007 or 2008, Crittenden entered D.M.’s bedroom while she was sleeping and ordered her to perform fellatio on him. When she refused, Crittenden placed his hand inside her vagina and moved it around. He then performed anal intercourse on her. Crittenden admonished D.M. not to tell anyone about the incident.
Nevertheless, D.M. told her mother, who refused to believe her allegations. On May 11, 2008, D.M. reported the incident to her aunt, Lawanna Smith, who took her to the hospital for a medical examination.
Crittenden I, slip op. at 1 (footnote omitted). Crittenden was charged with two
counts of Class A felony child molesting and two counts of Class C felony child
molesting. Following a bench trial, the trial court found him guilty of one
count of each. The trial court subsequently sentenced Crittenden to thirty-five
years with five years suspended for the Class A felony conviction and to a
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 3 of 16 concurrent, six-year term for the Class C felony conviction. This sentence was
set aside upon post-conviction review and the matter was remanded for a new
sentencing hearing.
[5] A resentencing hearing was held on November 18, 2015, during which the trial
court incorporated evidence presented during the first sentencing hearing. After
the trial court received additional evidence and testimony from Crittenden, the
trial court sentenced him to the same sentence previously imposed. Crittenden
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
1. Jurisdiction
[6] Crittenden first argues that the trial court did not have subject matter
jurisdiction because the charging information was not properly filed as it was
not file-stamped by the clerk of the court. Relying on Emmons v. State, 847
N.E.2d 1035 (Ind. Ct. App. 2006), he asserts that his convictions are therefore
void for lack of jurisdiction.
[7] In Emmons, the defendant moved to dismiss the charges against him because the
charging information was not properly file-stamped. The trial court granted the
defendant’s motion to dismiss at the bench trial prior to the presentation of
evidence. Upon retrial, Emmons moved to dismiss the charges on double
jeopardy grounds, which the trial court denied. We affirmed the trial court’s
denial of the motion, explaining in an alternative analysis:
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 4 of 16 A defendant may also be retried if the prior proceeding was terminated because a legal defect in the proceedings would make any resulting judgment reversible as a matter of law. . . . We have explained:
[A] criminal action can be commenced only in the manner provided by law, and that it is the filing of the accusation in lawful form that invokes the jurisdiction of the court in the particular case. It is a universal principle as old as the law that the proceedings of a court without jurisdiction are a nullity and its judgment void. There can be no conviction or punishment for crime, except on accusation made in the manner prescribed by law . . . .
Pease v. State, 74 Ind.App. 572, 576, 129 N.E. 337, 339 (1921) (internal citations omitted) . . . .
The original information against Emmons had not been file- stamped and therefore was not properly filed under Ind. Code § 35-34-1-1. As a result, the trial court did not have jurisdiction over Emmons and any judgment rendered would have been void for lack of jurisdiction . . . .
Emmons, 847 N.E.2d at 1038-39. The court noted, however, that failure to
properly file-stamp the charging information constituted a clerical error that
could have been corrected by a nunc pro tunc entry. Id. at 1038 (citing Owens v.
State, 263 Ind. 487, 495, 333 N.E.2d 745, 749 (1975)). Indeed, the court
indicated that “[t]he better course of action . . . would be a nunc pro tunc entry
to show the filing of the information.” Id. at 1037 n.6
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 5 of 16 [8] Unlike the defendant in Emmons, Crittenden did not raise the jurisdictional
defect before the trial court. If he had, the clerical error could have easily been
corrected by a nunc pro tunc entry. Moreover, even assuming that the clerical
error constituted a jurisdictional defect, it was at most a defect in personal
jurisdiction, not subject matter jurisdiction.
[9] “The question of subject matter jurisdiction entails a determination of whether
a court has jurisdiction over the general class of actions to which a particular
case belongs.” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006) (citing Troxel v.
Troxel, 737 N.E.2d 745, 749 (Ind. 2000)). As our Supreme Court noted, “[r]eal
jurisdictional problems would be, say, a juvenile delinquency adjudication
entered in a small claims court, or a judgment rendered without any service of
process.” Id. (emphasis in original). Our Supreme Court clarified that
“characterizing other sorts of procedural defects as ‘jursidictional’
misapprehends the concepts [of personal and subject matter jurisdiction].” Id.
In K.S., the Court thus held that even if the juvenile court had not explicitly
approved the filing of a delinquency petition, as was required by statute, the
juvenile court was not divested of subject matter jurisdiction in the matter
because juvenile courts have jurisdiction over delinquency proceedings. Id.
[10] Similarly, here, even if the trial court clerk neglected to place a file stamp on the
charging information as required by I.C. § 35-34-1-1, such clerical error would
not change the fact that the trial court had subject matter jurisdiction over the
criminal case filed against Crittenden. Indeed, the Marion Superior Court has
“original and concurrent jurisdiction in all criminal cases allegedly committed
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 6 of 16 in Marion County.” Taylor-Bey v. State, 53 N.E.3d 1230, 1231 (Ind. Ct. App.
2016). Crittenden’s argument that the trial court was without subject matter
jurisdiction fails.
2. Sentencing
[11] Crittenden argues that the trial court abused its discretion when it sentenced
him to an aggravated sentence using improper aggravating factors. Sentencing
decisions are within the sound discretion of the trial court and are reviewed on
appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion
occurs if the decision is “clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id. A trial court abuses its discretion by
(1) failing to enter a sentencing statement, (2) entering a sentencing statement that explains reasons for imposing the sentence but the record does not support the reasons, (3) the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or (4) the reasons given in the sentencing statement are improper as a matter of law.
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).
Age of Victim
[12] Crittenden first argues that the trial court inappropriately relied upon the age of
the victim as an aggravating factor because age is a material element of the
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 7 of 16 crime of child molesting. Crittenden’s crimes required that the victim be under
fourteen years of age. See Ind. Code § 35-42-4-3. D.M. was between the ages of
seven and nine when the molestations occurred. During the sentencing
hearing, the trial court found as an aggravating circumstance that “[t]his was a
very young child that [Crittenden] had been in a position of care, custody and
control over.” Transcript at 211.
[13] This court has held that, “[w]hile the victim’s age may not constitute an
aggravating circumstance to support an enhanced sentence when it also
comprises a material element of the crime for which conviction was obtained,
the trial court may properly consider particularized circumstances of the factual
elements as aggravating factors.” Mallory v. State, 563 N.E.2d 640, 647 (Ind. Ct.
App. 1990). To the extent the trial court considered the age of the victim as an
aggravating circumstance, it properly did so in light of the particular
circumstances, i.e., the very young age of the victim. See Kien v. State, 782
N.E.2d 398, 414 (holding that trial court properly considered age of the victim
in a child molesting case as an aggravating circumstance where court noted that
“child is extremely vulnerable to sexual predation because of her ‘tender
years’”).
Victim Impact
[14] Crittenden argues that the trial court improperly considered the impact of the
crime on the victim as an aggravating circumstance because such had already
been factored into the advisory sentence for the level of the crime committed.
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 8 of 16 A trial court may consider as an aggravator whether “[t]he harm, injury, loss, or
damage suffered by the victim . . . was . . . significant[] and . . . greater than the
elements necessary to prove the commission of the offense. Ind. Code § 35-38-
1-7.1(a)(1).
[15] Here, there was evidence that D.M. suffered significant behavioral issues as a
result of the molestation and began acting out sexually with other children and
with herself. D.M.’s aunt testified that D.M. began playing with dolls in a
sexual manner and also “tried to hump the neighbor’s kids.” Transcript at 94.
Because of D.M.’s behavioral issues, her aunt turned her over to foster care
because she was not able to care for her. Eventually, D.M. was placed in a
mental hospital. D.M. continues to face issues relating to the molestation by
Crittenden. At the first sentencing hearing, the trial court found that the harm
to D.M. was “significant and certainly greater than the elements that are
necessary to prove the offense.” Transcript at 156.1 At the second sentencing
hearing, the court again noted that “[t]he impact on the victim was just
incredibly lasting. She’s lost her mother, she’s lost so much. Spent time in a
mental hospital trying to cope with the memories” of what Crittenden did to
her. Id. at 210. The court further observed that D.M. was devastated and
scared by having to testify and be in Crittenden’s presence. Based on the
1 The original transcript of the trial and sentencing hearing were included in the record on appeal. These same transcripts were included in the “Transcript of the Record” in this appeal, which also includes the transcript of the second sentencing hearing. For simplicity, our citations to the Transcript will refer to the “Transcript of Record.”
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 9 of 16 foregoing, we cannot say that the trial court erred in finding the serious and
lasting nature of the impact on the victim as an aggravating factor.
Position of Trust
[16] Crittenden argues that the trial court erred in finding as an aggravating factor
that he violated a position of trust because such “is already inherently included
in the presumptive [sic] sentence as an element of the offense.” Appellant’s Brief
at 18. Contrary to Crittenden’s argument, “Indiana courts have long held that
the violation of a position of trust is a valid aggravating factor.” Stout v. State,
834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied. The sad fact that adults
in positions of trust are often the perpetrators of these crimes does not change
this result. Id. (disagreeing with defendant’s argument that the violation of a
position of trust with one’s victim should not be an aggravator in a case of child
molesting because acts of molestation are commonly committed by stepfathers).
Crittenden does not challenge that he was in a position of trust with D.M.
Indeed, Crittenden was D.M.’s mother’s boyfriend and he lived in the home
with D.M. and her mother. The trial court did not improperly consider as an
aggravating circumstance that Crittenden was in a position of trust with his
victim.
Criminal History
[17] Crittenden argues that the trial court should not have cited his criminal history
as an aggravating circumstance because his one prior conviction for theft “bears
no relation to the crime for which the sentence enhancement was applied.”
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 10 of 16 Appellant’s Brief at 20. A defendant’s criminal history is a proper aggravating
factor; the significance of which “varies based on the gravity, nature and
number of prior offenses as they relate to the current offense.” Wooley v. State,
716 N.E.2d 919, 929 n.4 (Ind. 1999).
[18] With regard to Crittenden’s criminal history, the trial court acknowledged that
he had a prior conviction for Class D felony theft in 2004 and that he violated
his probation. The trial court described such as “very minimal” and indicated
that it gave it “very little weight.” Transcript at 212. The trial court’s
consideration of such was not error. To the extent Crittenden’s claim is that the
trial court afforded too much weight to his criminal history, such claims are no
longer subject to appellate review. Anglemyer, 868 N.E.2d at 491.
Rehabilitation
[19] Crittenden argues that the trial court abused its discretion by failing to explain
how an enhanced sentence furthered his rehabilitation. The trial court,
however, is not required to provide such an explanation where its sentencing
statement sufficiently demonstrates that it evaluated the mitigating and
aggravating circumstances. See Kile v. State, 729 N.E.2d 211, 215 (Ind. Ct. App.
2000) (citing Crawley v. State, 677 N.E.2d 520, 523 (Ind. 1997)). Here, the trial
court explained its evaluation of the circumstances impacting the sentence.
Maintaining Innocence
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 11 of 16 [20] Crittenden argues that the trial court “abused its discretion when it based the
outcome of [his] sentence on [him] admitting or denying guilt.” Appellant’s Brief
at 22. In support of his argument, Crittenden directs us to a portion of the trial
court’s sentencing statement wherein the court stated in response to
Crittenden’s request that the court consider placing him in community
corrections or an additional five years of probation:
One of the things that would matter a great deal to me would be your participation in counseling while you are at the DOC. Now, that may require admission, I don’t know. If that – I don’t know if you can get into the sex offender counseling at the DOC without admitting the offense. I don’t know that. Perhaps you can. But that’s one of the things that would move me a long ways down the road when you get closer to the end of your sentence. I might, might reconsider letting you come out for the last couple of years or so onto home detention.
Transcript at 216. Crittenden maintains that the trial court’s statement shows
that the trial court is “trying to compel [him] to accept responsibility for a crime
that he maintains his innocence to . . ., so he could possibly receive the benefit
of a lighter sentence.” Appellant’s Brief at 22.
[21] Contrary to Crittenden’s claim,2 the trial court did not consider Crittenden’s
possible participation in counseling as weighing on the sentence imposed. The
trial court’s statement came after the trial court pronounced the sentence and
2 Crittenden cites to Ashby v. State, 904 N.E.2d at 361 (Ind. Ct. App. 2009) in support of his argument. Upon review, we find Ashby to be inapposite.
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 12 of 16 was in response to Crittenden’s request that the court consider placing him in
community corrections or an additional five years of probation. The trial
court’s sentencing decision was not based on him admitting or denying guilt.
The trial court did not abuse its discretion.
3. Sexually Violent Predator
[22] Crittenden argues that although the trial court never specifically found that he
was a sexually violent predator, a notation in the abstract of judgment was to
that effect. Crittenden is referring to the trial court’s statement in the comment
section of the abstract of judgment in which the court noted “NO CONTACT
ORDER ISSUED: SEE STATE’S REGISTRY.” Appellant’s Second Appendix
Volume 2 at 13. Crittenden maintains that with this notation, the court was
informing him to follow the State’s sex offender laws. Crittenden asserts that if
required to register as a sexually violent predator under the law as it exists
today, such would constitute an ex post facto violation.
[23] We do not agree with Crittenden’s interpretation of the trial court’s notation in
the abstract of judgment. Rather, as the State asserts, we find that the reference
to “SEE STATE’S REGISTRY” is a reference to the registry for no-contact
orders. See http://www.in.gov/judiciary/admin/2654.htm (Indiana’s
Protection Order Registry). There has been no determination as to Crittenden’s
status upon his release from incarceration and Crittenden has not been notified
that he is required to register as a sexually violent predator. Thus, Crittenden’s
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 13 of 16 claim that the trial court improperly classified him as a sexually violent predator
in violation of the ex post facto clause fails.
4. Ineffective Assistance
[24] Crittenden argues that he received ineffective assistance of counsel during his
resentencing hearing. A petitioner will prevail on a claim of ineffective
assistance of counsel only upon a showing that counsel’s performance fell
below an objective standard of reasonableness and that the deficient
performance prejudiced the petitioner. Bethea v. State, 983 N.E.2d 1134, 1138
(Ind. 2013). To satisfy the first element, the petitioner must demonstrate
deficient performance, which is “representation that fell below an objective
standard of reasonableness, committing errors so serious that the defendant did
not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second
element, the petitioner must show prejudice, which is “a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been
different.” Id. at 1139. “A reasonable probability is one that is sufficient to
undermine confidence in the outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147
(Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Failure
to satisfy either element will cause an ineffectiveness claim to fail. Carrillo v.
State, 982 N.E.2d 461, 464 (Ind. Ct. App. 2013).
[25] Crittenden argues that his counsel at the resentencing hearing was ineffective
because she failed to object on grounds that the trial court did not have
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 14 of 16 jurisdiction. This claim is bared by res judicata as Crittenden presented
essentially this same argument in his post-conviction appeal. See Holmes v. State,
728 N.E.2d 164, 168 (Ind. 2000) (“The doctrine of res judicata prevents the
repetitious litigation of that which is essentially the same dispute.”). In
Crittenden II, this court affirmed the post-conviction court’s determination that
Crittenden had failed to prove prejudice resulting from counsel’s failure to file a
motion to dismiss the charging information because it lacked a file stamp. Slip
op. at 10.
[26] Furthermore, as we discussed supra, the trial court had subject-matter
jurisdiction regardless of any mistake made by the trial court clerk in file-
stamping the charges. Thus, counsel could not have been ineffective for failing
to argue lack of jurisdiction. Crittenden likewise cannot prove prejudice
because had his trial counsel objected to the lack of a file-stamp, the court could
have properly made a nunc pro tunc entry to correct the clerical error. See
Owens; Emmons, 847 N.E.2d at 1037-39. Crittenden’s claim of ineffective
assistance of counsel fails.
5. Sentencing Amendment
[27] Crittenden argues that the trial court abused its discretion when it amended his
sentence without him or his counsel being present. Crittenden was resentenced
on November 18, 2015. The basis of Crittenden’s argument appears to stem
from a notation in the chronological case summary to an amended sentence.
Crittenden, however, does not identify how his sentence was amended.
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 15 of 16 [28] We note that in the record before us, there are two sentencing orders, one dated
November 18, 2015, and the other dated November 24, 2015. The sentencing
orders are essentially identical with one exception being an additional notation
on the November 24, 2015 order that the original date of sentencing was May
26, 2009. Likewise, the record contains two virtually identical abstracts of
judgments bearing the same dates as the sentencing orders. On the November
18 abstract of judgment, there is a handwritten notation regarding the original
sentencing date. This notation is typed on the November 24 abstract. There is
nothing that indicates that the trial court amended Crittenden’s sentence. Thus,
Crittenden’s claim of an improper amendment to his sentence fails.
[29] Judgment affirmed.
[30] Riley, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2183 | March 13, 2017 Page 16 of 16