Milton v. State

588 N.E.2d 523, 1992 Ind. App. LEXIS 319, 1992 WL 46465

• Court: Indiana Court of Appeals
• Decided: March 16, 1992
• Docket: No. 45A03-9106-CR-189
• Status: Published

Opinions

HOFFMAN, Judge.

Appellant-defendant Darrin D. Milton appeals his conviction for robbery, a Class B felony. Appellant's sole claim on appeal is that the trial court erred in proceeding to try him in absentia.

A defendant in a non-capital case may waive his right to be present at trial, but the waiver must be voluntarily, knowingly, and intelligently made. Covey v. State (1990), Ind.App., 553 N.E.2d 211, 212. 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 defendant knew the scheduled trial date but failed to appear. Id. A defendant who has been so tried, however, must be afforded an opportunity to explain his absence and thereby rebut the initial presumption of waiver. Id.

The record shows that prior to jury selection on July 28, 1986, a Monday, the court advised the State, defense counsel, and the then 16-year-old appellant that trial would begin Thursday morning. When appellant did not appear for trial on the morning of July 381, 1986, defense counsel informed the court that he had discussed trial preparation with appellant, appellant's father, and appellant's grandmother for almost two hours after jury selection, and that he had told appellant to be in court by 9:00 Thursday morning. Defense counsel also informed the court that he had telephoned appellant's grandmother that morning but she did not know appellant's or his father's whereabouts. The court then made the following statement:

"Mr. Shaps, your client was in Court Monday. The Court indicated then the matter was continued to today at 9:30. It's now 10:80. We have waited one (1) hour for your client. You're unable to give the Court any explanation for him not being here. The Court is going to continue with the trial in his absence. Certainly, the Court cannot allow a Defendant to control the Court calendar by simply not appearing at the time of trial, particularly after you selected a jury and jeopardy has attached."

After questioning each juror and determining that he or she would not use appellant's absence as evidence against him, the court proceeded with the trial.

On March 6, 1991, after being arrested in Georgia and extradited to Indiana, appellant appeared before the trial court for sentencing on his 1986 robbery conviction. At the sentencing hearing, appellant informed the court that he did not attend his trial because his father had told him his "juvenile past" could not be used against him if he stayed out of trouble until the age of 18. Appellant also informed the court that his father died in 1987, and that he did not discuss his decision to not attend the trial with his attorney. The court found appellant's explanation incredible and proceeded to sentence appellant to a 10-year term of imprisonment. Considering that appellant knew the trial date, attended all stages of the proceedings up to his trial, and failed to contact either the court or his attorney, this Court finds appellant voluntarily, knowingly, and intelligently waived his right to be present at trial. See Freeman v. State (1989), Ind., 541 N.E.2d 533, 535; Griffin v. State (1986), Ind., 501 N.E.2d 1077, 1078.

Appellant also argues that the court should have waited longer than one hour before proceeding with the trial. However, appellant failed to show that, had the court waited longer than one hour, he would have been available to participate in his trial. Consequently, the court was justified in proceeding to try appellant in ab-sentia. See Thorpe v. State (1988), Ind., 524 N.E.2d 795, 796.

The judgment of the trial court is affirmed.

GARRARD, J., concurs. SULLIVAN, J., concurs with opinion.