Robert D. Bowen v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 18, 2013
• Docket: 08A02-1206-CR-504
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED Feb 18 2013, 9:15 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, court of appeals and collateral estoppel, or the law of the case. tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK K. LEEMAN GREGORY F. ZOELLER Carroll County Public Defender Attorney General of Indiana Leeman Law Offices Logansport, Indiana

MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ROBERT D. BOWEN, ) ) Appellant-Defendant, ) ) vs. ) No. 08A02-1206-CR-504 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE CARROLL CIRCUIT COURT The Honorable Donald E. Currie, Judge Cause No. 08C01-1007-FB-8

February 18, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Robert D. Bowen (“Bowen”) was convicted after a jury trial of unlawful

possession of a firearm by a serious violent felon,1 a Class B felony, dealing in a schedule

IV controlled substance2 as a Class C felony, possession of a controlled substance 3 as a

Class D felony, and possession of marijuana4 as a Class A misdemeanor and was

sentenced to an aggregate term of fourteen years in the Department of Correction.

Bowen appeals and raises the following restated issues for our review:

I. Whether the trial court abused its discretion in finding that Bowen was not indigent and therefore not appointing counsel to represent Bowen until eight months prior to trial; and

II. Whether the trial court abused its discretion in sentencing Bowen to consecutive sentences.

We affirm.

FACTS AND PROCEDURAL HISTORY

On June 30, 2010, Bowen’s daughter-in-law called the Delphi Police Department

and informed them she had observed Bowen and her husband smoking marijuana inside

Bowen’s appliance repair shop earlier that day. She also told the police that there were

several guns inside the shop and that she had previously seen Bowen holding a gun. The

police obtained a search warrant for Bowen’s shop and executed that warrant on July 2,

2010. Pursuant to that search, the police seized various items from the shop, including

1 See Ind. Code § 35-37-4-5. 2 See Ind. Code § 35-48-4-3. 3 See Ind. Code § 35-48-4-7. 4 See Ind. Code § 35-48-4-11.

2 guns, cash, an electronic scale, marijuana, and pills, which were later identified as

alprazolam, a schedule IV controlled substance. There were several individuals,

including Bowen and his son, present at the time the warrant was executed. Two of these

individuals had alprazolam pills in their pockets. When questioned by the police, Bowen

admitted that the shop and property were his, that he lived in a trailer located in a

building attached to the shop, and had keys to the shop. Tr. at 259-60. Bowen also

admitted that he knew the firearms were on his property and that no one was allowed on

the property without his knowledge. Id. at 260-61.

The State charged Bowen with unlawful possession of a firearm by a serious

violent felon, dealing in a schedule IV controlled substance, possession of a controlled

substance, two counts of receiving stolen property, and possession of marijuana. At

Bowen’s initial hearing, on July 3, 2010, Bowen informed the trial court that he wanted

to hire his own attorney. Id. at 13, 16. At that time, Bowen’s bond was set in the sum of

$50,000 property or surety plus $500 cash. On July 15, 2010, Senior Judge Kathy Smith

held a hearing regarding the appointment of counsel and appointed Patrick F. Manahan

(“Manahan”) as counsel for Bowen in this case. Manahan was later permitted, on

September 27, 2010, to withdraw as Bowen’s counsel. On July 26, 2010, the property

bond, pledging real estate owned by Bowen as security, was received by the clerk of the

trial court.

At the initial hearing for the amended information, held on October 20, 2010,

Bowen requested the appointment of counsel. The trial court questioned Bowen

regarding his financial situation, and determined that, because Bowen had real property

3 with $50,000 in equity, he was not indigent, and the trial court refused to appoint a public

defender for Bowen. Id. at 22-24, Appellant’s App. at 47. At this hearing, Bowen also

filed a pro se motion to suppress.

On November 12, 2010, Bowen filed a motion to continue because he had not yet

been able to hire an attorney. At a hearing on February 23, 2011, the State informed the

trial court of the problems it was having dealing with Bowen because he did not have an

attorney and had not entered an appearance for himself in the case. Tr. at 26-27. Bowen

told the court he had contacted attorneys but had not yet been able to retain the services

of an attorney. Id. at 28. The trial court continued the proceedings. At a status hearing,

on April 26, 2011, Bowen again requested that the trial court appoint counsel to represent

him, but admitted to the trial court that his financial situation had not changed. Id. at 31.

Because Bowen had equity in the real property that he owned, the trial court again found

that he was not indigent and refused to appoint counsel. Id. at 31-32.

On May 13, 2011, the trial court held a hearing on Bowen’s motion to suppress.

Bowen again complained about not having appointed counsel, and the trial court

reaffirmed its ruling that Bowen was not indigent. Id. at 38-41. Because Bowen did not

present any evidence in support of his motion to suppress, the trial court denied the

motion. On June 2, 2011, the trial court granted Bowen’s motion to continue in order to

obtain counsel.

On August 23, 2011, the trial court held a hearing on the State’s motion to revoke

Bowen’s bond, and the State presented evidence that Bowen had been charged with a

new criminal offense. Bowen again appeared without counsel. The trial court granted

4 the State’s motion and revoked Bowen’s bond. Bowen again requested that counsel be

appointed for trial, and the trial court again inquired into Bowen’s financial situation. No

discussion occurred regarding the real property owned by Bowen. At the conclusion of

the inquiry, the trial court found Bowen to be indigent and appointed Ian O’Keefe

(“O’Keefe”) to represent Bowen.

Prior to trial, the State dismissed one of the receiving stolen property counts. A

three-day jury trial began on April 23, 2011, with Bowen being represented by O’Keefe.

At the conclusion of the trial, the jury found Bowen not guilty of the remaining Class D

felony receiving stolen property count and guilty of the other charged offenses. At the

sentencing hearing, the trial court, after considering the pre-sentence investigation report

and the evidence and arguments presented at the hearing, imposed a sentence of ten years

for Bowen’s conviction for Class B felony unlawful possession of a firearm by a serious

violent felon, four years for his conviction for Class C felony dealing in a schedule IV

controlled substance, one-and-a-half years for his conviction for Class D felony

possession of a controlled substance, and one year for his conviction for Class A

misdemeanor possession of marijuana. The trial court ordered the sentences to be served

concurrently, except for the sentence for dealing in a schedule IV controlled substance,

which was ordered to be served consecutively to the sentence for unlawful possession of

a firearm by a serious violent felon, for a total of fourteen years. Bowen now appeals.

DISCUSSION AND DECISION

I. Appointment of Counsel

5 In general, a trial court has discretion to determine whether a defendant is

indigent, and we are reluctant to override that discretion on appeal. Reese v. State, 953

N.E.2d 1207, 1210 (Ind. Ct. App. 2011) (citing Redmond v. State, 518 N.E.2d 1095, 1095

(Ind. 1988)). However, the trial court does not have the discretion to deny counsel to an

indigent defendant. Gilmore v. State, 953 N.E.2d 583, 587 (Ind. Ct. App. 2011) (citing

Graves v. State, 503 N.E.2d 1258, 1262 (Ind. Ct. App. 1987)).

Bowen argues that the trial court abused its discretion when it failed to find him

indigent and appoint counsel to represent him in the initial stages of his case. He

contends that these were critical stages of the trial proceedings, and the refusal to appoint

him counsel at those times constituted a denial of his right to counsel. Bowen claims that

he qualified for appointed counsel because he was indigent, and the assets he had were

not liquid and using them to obtain counsel could impose substantial hardship on himself

and his family. He further argues that, even if he was not indigent, the trial court did not

adequately establish that fact on the record because the trial court failed to engage in a

thorough examination of Bowen’s total financial picture.

Because we are dealing with such a fundamental constitutional right, the record in

each case must show that careful consideration commensurate with the right at stake has

been given to the defendant. Reese, 953 N.E.2d at 1210 (quoting Moore v. State, 273

Ind. 3, 7, 401 N.E.2d 676, 678 (1980)) (internal quotation marks omitted). The defendant

does not have to be totally without means to be entitled to counsel. Gilmore, 953 N.E.2d

at 587. If he legitimately lacks the financial resources to employ an attorney, without

imposing a substantial hardship on himself or his family, the court must appoint counsel

6 to defend him. Id. The determination as to the defendant’s indigency is not to be made

on a superficial examination of income and ownership of property but must be based on

as thorough an examination of the defendant’s total financial picture as is practical. Id.

The record must show that the determination of ability to pay includes a balancing of

assets against liabilities and a consideration of the amount of the defendant’s disposable

income or other resources reasonably available to him after the payment of his fixed or

certain obligations. Id.

In the present case, Bowen initially informed the trial court that he intended to hire

a private attorney to represent him. At a subsequent hearing, Senior Judge Kathy Smith

appointed attorney Manahan to represent Bowen. However, Manahan was permitted to

withdraw his appearance, and at a hearing on October 20, 2010, Bowen requested that

counsel be appointed for him. At that time, the trial court held a hearing on Bowen’s

request for counsel.

The trial court questioned Bowen regarding his financial condition, and Bowen

stated he had not been employed since 2001. Tr. at 22. Bowen stated that his wife was

employed part-time and that she provided financial support for them. Id. at 22-23.

Bowen informed the trial court that the family received food stamps. Id. at 23. He also

admitted that he owned a rental property that brought in approximately $335 per month.

Id. Bowen also stated that he owned real property that had a value of at least $50,000,

although at that time the property was being used for Bowen’s bond. Id. Bowen told the

trial court that he had not yet talked with an attorney about his case. Id. The trial court

found that Bowen was not indigent, based on his ownership of real property that had a

7 value of at least $50,000, and, therefore, refused to appoint counsel for him at public

expense. Id. at 23-24.

The trial court did not abuse its discretion in not finding Bowen to be indigent at

that time. Bowen’s ownership of real property, on its own, shows that he was not

indigent. See Gilmore, 953 N.E.2d at 588 (defendant’s social security and ownership of

real property, valued at $54,000, standing alone, could sustain finding that defendant was

not indigent). Additionally, we find it significant that Bowen failed to tell the trial court

about his appliance repair business and the income he derived from that business. Tr. at

295-96, 378; Appellant’s App. at 218. Therefore, Bowen’s statement to the trial court

that he had not been employed since 2001 is contradicted by the fact that he was self-

employed through his appliance repair business.

As to his later requests for counsel to be appointed, Bowen told the trial court that

his financial situation had not changed. Tr. at 31-32. At the hearing on his motion to

suppress, Bowen had failed to retain counsel and complained to the trial court about not

appointing him counsel. Id. at 38-39. The trial court explained to Bowen that his

ownership of real property demonstrated that he was not indigent and that it was his

choice to use the property to obtain an attorney or not. Id. at 39-40. The facts presented

to the trial court show that Bowen had the financial ability to hire an attorney but chose

not to because he was worried he may not be able to pay off any loan he took out on the

property. Id. at 39-40. Further, Bowen failed to inform the trial court of his income from

his appliance repair business. Under the facts of this case, the trial court did not abuse its

8 discretion when it found Bowen was not indigent for the purpose of appointing counsel

for the motion to suppress hearing and prior to the hearing.

Later, when Bowen notified the trial court that he had spoken with an attorney and

was unable to reach any financial arrangement with the attorney, the trial court appointed

counsel for Bowen. Id. at 28, 54-60. Attorney O’Keefe entered an appearance for

Bowen on August 25, 2011, and Bowen’s trial was not held until April 23, 2012.

Bowen’s counsel had eight months to prepare for trial, and at trial, counsel made

objections to the admission of evidence based on Bowen’s previous motion to suppress.

Id. at 128-29, 254. Therefore, the fact that Bowen did not have counsel appointed when

he filed his motion to suppress did not negatively impact Bowen because he had counsel

at the time that the evidence was presented at trial, and his counsel objected to the

admission of the evidence at trial. We conclude that the trial court did not abuse its

discretion when it found, based on his ownership of real property with a value of at least

$50,000, he was not indigent for the purpose of appointing counsel. Bowen chose not to

use this property to obtain counsel, so he was without counsel at certain stages of his case

at his own choosing. When Bowen informed the trial court that he had attempted to

obtain private counsel, but was unable to do so, the trial court appointed counsel, and

Bowen was represented by counsel for the duration of his case. Under the circumstances

of this case, the trial court did not abuse its discretion, and Bowen was not denied his

right to counsel.

II. Sentencing

9 Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Webb v. State, 941 N.E.2d 1082,

1088 (Ind. Ct. App. 2011) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007)), trans. denied. An

abuse of discretion occurs if the decision is clearly against the logic and effect of the facts

and circumstances before the court. Id. A trial court must enter a sentencing statement

that includes reasonably detailed reasons for imposing a particular sentence. Id. The

purpose of this rule is to guard against arbitrary sentencing and to provide an adequate

basis for appellate review. Id. The decision to impose consecutive or concurrent

sentences is within the trial court’s sound discretion and is reviewed only for an abuse of

discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). A single

aggravating circumstance may support the imposition of consecutive sentences. Id.

Bowen argues that the trial court abused its discretion when it imposed

consecutive sentences for two of his convictions. He contends that the trial court’s

sentencing statement was inadequate because it lacked reasonable details necessary to

safeguard against an arbitrary sentence. He also asserts that the trial court failed to

articulate a basis for imposing consecutive sentences.

Bowen is correct that a trial court is required to enter a reasonably detailed

sentencing statement that includes the reasons for imposing a certain sentence. Webb,

941 N.E.2d at 1088. A trial court must also articulate at least one aggravating

circumstance in order to impose consecutive sentences. Rhoiney v. State, 940 N.E.2d

841, 846 (Ind. Ct. App. 2010), trans. denied. When reviewing the sufficiency of the

10 sentencing statement, we examine both the trial court’s written and oral statements.

Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).

Here, the trial court did not specifically state, either in its written or oral

sentencing statement, any aggravating or mitigating circumstances, and the trial court

imposed the advisory sentence for all of the convictions. Therefore, this would make it

seem that the trial court found the aggravating and mitigating circumstances to be in

equipoise, which would generally prohibit the imposition of consecutive sentences. See

Lopez v. State, 869 N.E.2d 1254, 1258 (Ind. Ct. App. 2007) (when aggravating and

mitigating factors are in equipoise, “our Supreme Court has said that a trial court may not

impose consecutive sentences”), trans. denied. Additionally, when a trial court failed to

provide an explanation for imposing consecutive sentences, we may remand for

resentencing to impose concurrent sentences. Murrell v. State, 960 N.E.2d 854, 860 (Ind.

Ct. App. 2012).

However, we conclude that, in this case, the trial court’s sentencing statements

allow us to infer that at least one aggravating circumstance was considered by the trial

court in imposing the consecutive sentences. In both its written and oral sentencing

statements, the trial court stated that, in making it sentencing decision, it considered the

pre-sentence investigation report and the evidence and arguments presented during the

sentencing hearing. Tr. at 394; Appellant’s App. at 174. In the written sentencing

statement, the trial court also states it considered the sentencing criteria found in Indiana

Code section 35-38-1-7.1 in making its decision. Appellant’s App. at 174. The pre-

sentence investigation report detailed Bowen’s extensive criminal history, which spanned

11 over thirty years and included multiple felony convictions, and lengthy substance abuse

history. Id. at 212-16, 219. A trial court is permitted to consider a defendant’s criminal

history as an aggravating circumstance. Ind. Code § 35-38-1-7.1(a)(2). We conclude

that based on the trial court’s written and oral sentencing statements, which detailed that

the trial court considered the pre-sentence investigation report in reaching its sentencing

decision, it can be inferred that the trial court imposed consecutive sentences based upon

Bowen’s extensive criminal history. We therefore find that the trial court did not abuse

its discretion in sentencing Bowen to consecutive sentences. However, we want to

remind the trial court that criminal defendants are entitled to understand the trial court’s

reasoning behind the defendants’ sentencing orders. We therefore caution the trial court

to give due consideration to the requirement that a sentencing statement should include

reasonably detailed reasons for imposing a particular sentence in future orders.

Affirmed.

MATHIAS, J., and CRONE, J., concur.