FILED Jul 03 2012, 9:31 am
FOR PUBLICATION CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NANCY A. McCASLIN GREGORY F. ZOELLER McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
RONALD B. HAWKINS, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1112-CR-579 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable David C. Bonfiglio, Judge Cause No. 20D06-1101-FC-2
July 3, 2012
OPINION - FOR PUBLICATION
BRADFORD, Judge Appellant-Defendant Ronald Hawkins appeals from his convictions of and sentences
for two counts of Class C felony Non-Support of a Dependent Child.1 Hawkins contends that
he was denied due process when he was tried in absentia and without trial counsel, that his
presence at sentencing by video only was erroneous, that the trial court improperly entered
judgment on both counts as Class C felonies, and that the trial court abused its discretion in
imposing consecutive sentences. We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
On January 14, 2011, the State charged Hawkins, who at the time resided in North
Carolina, with two counts of Class C felony non-support of a dependent child. On April 28,
2011, the trial court appointed a public defender for Hawkins. At a hearing on July 27, 2011,
at which Hawkins was present, the trial court set a trial date of November 7, 2011, and
advised Hawkins that he would be tried “in [his] absence” if he failed to appear. Tr. p. 10.
On October 10, 2011, Hawkins’s attorney filed a motion to withdraw, a motion of
which the chronological case summary (“CCS”) indicates Hawkins received notice. The
CCS entry also indicates that Hawkins was notified that a hearing had been set for October
19, 2011, and that failure to appear at the hearing would “result in warrant for the
Defendant’s arrest and withdrawal of Public Defender.” Appellant’s App. p. 4. On October
19, 2011, a hearing at which Hawkins participated by telephone was held on his attorney’s
motion to withdraw. Hawkins’s attorney indicated that Hawkins had failed to participate in a
telephonic trial preparation meeting on October 7, 2011, did not call to reschedule or cancel
1 Ind. Code § 35-46-4-5(a) (2010).
2 the meeting, had not provided her with a contact number, and had not provided her with any
information regarding a possible disability defense. Apparently due to difficulty in
conducting the hearing telephonically, the trial court adjourned the hearing and reset it for
October 26, 2011. The trial court ordered Hawkins to appear personally at the reset hearing.
On October 26, 2011, the trial court held a second hearing on Hawkins’s attorney’s motion to
withdraw. Hawkins did not appear at the hearing, after which the trial court granted his
attorney’s motion to withdraw and issued a warrant for his arrest. The CCS indicates that
Hawkins was not sent notice that his attorney’s motion to withdraw had been granted.
On November 7, 2011, a jury trial was held on the charges against Hawkins, a trial at
which neither he nor any trial counsel appeared. Following trial, the jury found Hawkins
guilty as charged. The trial court entered judgment of conviction on both counts as Class C
felonies. On November 28, 2011, the trial court received a letter from Hawkins purporting to
explain why he had not appeared at the October 26, 2011, hearing or the trial. On December
7, 2011, the trial court held a sentencing hearing at which Hawkins appeared by video. The
trial court sentenced Hawkins to four years of incarceration for each count of non-support of
a dependent child, to be served consecutively, but all suspended and to be administered
through the Elkhart County Community Corrections Program.
DISCUSSION AND DECISION
I. Whether Hawkins was Properly Tried in Absentia and Without Counsel
Hawkins does not contend that he was improperly tried in absentia but argues that to
try him without representation violated his due process rights. Specifically, Hawkins
3 contends that the record indicates that he was never put on notice that his trial counsel had
withdrawn; he was never advised of his right to an attorney; and he did not voluntarily,
knowingly, and intelligently waive that right.
A. Notice of Withdrawal
“An elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950). Hawkins contends that his due process rights were violated because he was not sent
specific notice that his trial counsel’s motion to withdraw was granted following the October
26, 2011, hearing. The record clearly indicates, and Hawkins does not dispute, however, that
he was on notice that his attorney’s motion to withdraw would be granted if he did not appear
at the hearing on the motion, which, of course, he did not. On October 11, 2011, according
to the CCS, Hawkins was notified that his “[f]ailure to appear [at the hearing on his
attorney’s motion to withdrawal] will result in warrant for the Defendant’s arrest and
withdrawal of the Public Defender.” Appellant’s App. p. 4 (emphasis added). Although
Hawkins did appear telephonically at the October 19, 2011, hearing on the motion, the
hearing was reset to October 26, a hearing at which he failed to appear. There is no
indication in the record that the trial court ever rescinded its warning about what would occur
if Hawkins failed to appear, and Hawkins does not claim that he was unaware of the
consequences of his failure to appear. Under the circumstances, we conclude that Hawkins’s
4 due process rights were not violated in this regard.
B. Advisement of Right to Counsel
Hawkins notes that nothing in the record indicates that the trial court advised him of
his right to counsel following his attorney’s withdrawal. Hawkins, however, cites to no
authority, and we are aware of none, that requires such a readvisement. The record indicates,
and Hawkins does not dispute, that Hawkins was adequately advised of his right to an
attorney and that one would be appointed at public expense if necessary. First, the CCS
indicates that a public defender was, in fact, appointed at Hawkins’s initial hearing.
Moreover, on July 13, 2011, Hawkins signed a later-withdrawn guilty plea agreement that
provided, inter alia, that “[t]he defendant understands that he has the right to have counsel
represent him at all stages of this lawsuit, and if he cannot afford counsel, counsel will be
appointed for him at public expense[.]” Appellant’s App. p. 33. Hawkins does not claim that
he did not understand this advisement or how it somehow would have lost effect. We
conclude that Hawkins was adequately advised of his right to counsel.
C. Waiver of Right to Counsel
“The right to be represented by counsel is also protected by both the Federal and
Indiana Constitutions.” Jackson v. State, 868 N.E.2d 494, 499 (Ind. 2007) (citing U.S.
CONST. amend. VI; IND. CONST. art. 1, § 13). “The right to counsel can be waived only by a
knowing, voluntary, and intelligent waiver.” Id. (citing Jones v. State, 783 N.E.2d 1132,
1138 n. 2 (2003)). While we acknowledge that “a defendant’s absence from trial does not
constitute a waiver of the right to counsel in every case[,]” id., this is one of those cases.
5 We find that the facts addressed by the Indiana Supreme Court in Jackson, in which
waiver of the right to counsel was found, are close enough to dictate the same result here. In
Jackson, the defendant had retained counsel but, at some point, decided to discharge him and
retain new counsel. Id. at 497. At a status conference on October 15, 2002, Jackson
informed the trial court that he wished to discharge his present counsel and requested
additional time to retain new counsel. Id.
The trial court granted Jackson’s request for additional time and rescheduled the jury trial for January 27, 2003 with two pretrial hearings on November 21, 2002 and December 26, 2002. Jackson was ordered to hire counsel by the November 21 pretrial conference. Neither Jackson, [Jackson’s former trial counsel], nor anyone else suggested that Jackson might proceed pro se. The trial court entered a written order setting the dates of the new pretrial hearings and the jury trial, granting Jackson’s request for additional time, noting that Jackson discharged his attorneys, and directing Jackson to retain substitute counsel by the next hearing. This order was handed to Jackson at the hearing.
Id. Neither Jackson nor any attorney appeared for either pretrial conference or the jury trial,
after which Jackson was convicted. Id.
Under the circumstances, the Jackson court concluded that Jackson had knowingly,
intelligently, and voluntarily waived counsel:
The record in Jackson’s case establishes that he repeatedly disregarded scheduled events. His last pretrial appearance in court ended with his counsel of record being discharged and an order setting a third and final trial date and directing Jackson to retain new counsel as he had said he would. He then failed to appear, failed to notify the court of his inability to retain counsel, and failed to request a continuance. We hold that this unexplained disregard of specific directions by the court and his own undertakings was sufficient to establish an intentional and inexcusable absence from trial and serves as a knowing, intelligent, and voluntary waiver of counsel.
Id. at 499. Additionally, the Jackson court held that the trial court was not required to
6 readvise Jackson regarding his right to counsel or, in the absence of any indication that he
wished to proceed pro se, the perils of self-representation. Id. at 499-500.
Here, we have already concluded that Hawkins was on notice that his attorney was
going to be allowed to withdraw and that he was adequately advised of his right to counsel.
Despite knowing the consequences of his failure to appear at the October 26, 2011, hearing,
Hawkins did, in fact, fail to appear at the hearing and the November 7 trial. At no point prior
to trial is there any indication that Hawkins attempted to contact the court to request a new
attorney, ask for a continuance, inform the court of transportation issues, express a desire to
proceed pro se, or for any other reason. As in Jackson, we conclude that Hawkins’s
unexplained disregard for trial court directions, absence from trial, and apparent failure to
even attempt communication serve as a knowing, intelligent, and voluntary waiver of
counsel. We also conclude, as did the Jackson court, that the trial court was under no
obligation to advise Hawkins of the perils of self-representation, as there is no indication that
he ever intended to proceed pro se. See id. at 500. Hawkins has failed to establish that his
trial in absentia and without counsel violated his due process rights.
In her dissent, Judge Vaidik contends that the facts here are distinguishable from those
in Jackson and require a different result, but we respectfully disagree. We believe it is not
significant, for example, that Hawkins was apparently not given specific notice that his
attorney had withdrawn after the fact. Hawkins was on notice that his attorney’s motion to
withdraw would be granted, not may be granted, if he failed to appear at the reset hearing,
and he subsequently failed to appear. Moreover, we do not find it significant that Jackson
7 retained counsel and told the trial court that he intended hire new counsel while Hawkins was
represented by a public defender. Pursuant to Jackson, the need to advise regarding the
pitfalls of proceeding pro se is triggered by an indication of a desire to proceed pro se, and
Hawkins gave no such indication. While the facts here may not be quite as egregious as
those in Jackson, this case still falls within Jackson’s holding. To hold otherwise would be
to allow defendants like Hawkins to manipulate the system in an unacceptable fashion.
II. Whether the Trial Court Abused its Discretion in Sentencing Hawkins via Vidoeconference
Hawkins contends that the trial court abused its discretion in sentencing him via
videoconference, arguing that Indiana Code section 35-38-1-4(a) requires that he be
physically present in the courtroom during sentencing. Hawkins, however, failed to object
below to being sentenced via videoconference and has therefore waived the argument for
appellate consideration. The purpose of the contemporaneous objection rule is to promote a
fair trial by preventing a party from sitting idly by and appearing to assent to an offer of
evidence or ruling by the court only to cry foul when the outcome goes against him. Purifoy
v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied (citation omitted). Hawkins
has waived this claim.
III. Whether the Trial Court Abused its Discretion in Ordering Consecutive Sentences
Under our current sentencing scheme, “the trial court must enter a statement including
reasonably detailed reasons or circumstances for imposing a particular sentence.” Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d
8 218 (Ind. 2008). 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. Williams v.
State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). An abuse of discretion occurs if “the
decision is clearly against the logic and effect of the facts and circumstances.” Anglemyer,
868 N.E.2d at 490. A single aggravating circumstance may support the imposition of
consecutive sentences. Hampton v. State, 873 N.E.2d 1074, 1082 (Ind. Ct. App. 2007).
Hawkins contends only that the trial court failed to adequately discuss aggravating and
mitigating circumstances at sentencing. In our view, the record indicates otherwise. The
State mentioned that Hawkins’s arrearage, $21,219.10 at sentencing, was well over the
statutory requirement, he had a “limited criminal history[,]” and he had paid “little or no
support for years on end.” Tr. p. 76. The trial court, in sentencing Hawkins, also specifically
noted his large arrearage, “very spotty payment history[,]” and “some criminal history but not
a terribly lengthy history[.]” Tr. p. 77. It is abundantly clear that the trial court considered
these circumstances to be aggravating, despite not actually using the term. The trial court did
not abuse its discretion in imposing consecutive sentences. Moreover, even though neither
party argues the point, we conclude that imposition of advisory sentences was appropriate.
IV. Whether the Trial Court Erred in Entering Judgment for Two Class C Felonies
Hawkins contends, and the State concedes, that the Indiana Supreme Court’s decision
in Sanjari v. State, 961 N.E.2d 1005 (2012), prevents the entry of two Class C felony
convictions in this case. In Sanjari, the Court held that while an aggregate child support
arrearage of $15,000 will serve to enhance a Class D felony non-support conviction to a
9 Class C felony, it cannot be used to enhance convictions related to multiple children living in
the same household. Id. at 1008-09. Accordingly, we remand with instructions to reduce one
of Hawkins’s Class C felony convictions to a Class D felony.
CONCLUSION
Hawkins’s due process rights were not violated when he was tried in absentia and
without counsel. Hawkins has waived for appellate review his argument that it was improper
to sentence him via videoconference. The trial court did not abuse its discretion in imposing
consecutive sentences. The trial court, however, erred in entering both convictions as Class
C felonies. We remand with instructions to reduce one of Hawkins’s Class C felony non-
support of a dependent child convictions to a Class D felony and impose the advisory
sentence, to be served consecutive to the sentence for the remaining Class C felony, for an
aggregate sentence of five and one-half years. See Ind. Code §§ 35-50-2-6(a); -7(a).
We affirm the judgment of the trial court in part, reverse in part, and remand with
instructions.
CRONE, J., concurs.
VAIDIK, J., concurs in part and dissents in part with opinion.
10 IN THE COURT OF APPEALS OF INDIANA
RONALD B. HAWKINS, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1112-CR-579 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) )
VAIDIK, Judge, concurring in part and dissenting in part.
I respectfully dissent from the majority’s conclusion that Hawkins knowingly,
intelligently, and voluntarily waived his right to counsel. Because I believe that the facts in
this case are readily distinguishable from the facts in Jackson and because of the importance
of an attorney for a fair proceeding, I would reverse the trial court on this issue.
The right to be represented by counsel is protected by both the United States and
Indiana Constitutions. U.S. Const. amend. VI; Ind. Const. art. 1, § 13. The right to counsel
can be waived only by a knowing, voluntary, and intelligent waiver. Jackson v. State, 868
N.E.2d 494, 499 (Ind. 2007). Because of the paramount importance of the right to counsel in
criminal proceedings and in recognition that the average defendant does not have the
professional legal skills to protect himself at trial, courts will indulge every reasonable
11 presumption against waiver. Johnson v. Zerbst, 304 U.S. 458, 462-64 (1938); United States
v. Best, 426 F.3d 937, 942 (7th Cir. 2005); Poynter v. State, 749 N.E.2d 1122, 1126 (Ind.
2001).
In Jackson, a closely divided Indiana Supreme Court recognized that a defendant’s
absence from trial does not constitute a waiver of the right to counsel in every case, but in
that case, “the record support[ed] the trial court’s specific finding that [the defendant’s]
absence from trial was a ‘willful, knowing and voluntary act.’” 868 N.E.2d at 499. The
defendant in Jackson at no time requested pauper counsel or indicated to the trial court that
he could not afford an attorney. Instead, the defendant hired counsel from a prominent law
firm, discharged counsel, and kept promising the trial court that he would hire new counsel.
The defendant, however, neither hired new counsel nor appeared at his final two pretrial
hearings or the trial. Our Supreme Court highlighted that the defendant “repeatedly
disregarded scheduled events” and that the last time the defendant was before the trial court,
his counsel was discharged, a new trial date was set, and he was ordered to find new counsel
as he said he would. Id. The Court warned that a defendant “cannot manipulate a trial court
to thinking that he or she will hire an attorney, fail to show up at trial or send an attorney, and
then assert that the right to counsel was not waived because the trial court did not admonish
the defendant about proceeding pro se.” Id. at 500; see also Poynter, 749 N.E.2d at 1127-28.
Here, however, the facts are much different. Hawkins, who lived in North Carolina,
appeared before the trial court on July 27, 2011. At this hearing, the trial court set a trial date
12 of November 7 and advised Hawkins that he would be tried in absentia if he did not appear.
But on October 10, Hawkins’s public defender filed a motion to withdraw, and a hearing was
set. Hawkins was notified of both the motion and the hearing and was told that his failure to
appear at the hearing would result in a warrant for his arrest and the withdrawal of his public
defender. The hearing was held on October 19, and Hawkins appeared by telephone.
Because of apparent difficulties in conducting the hearing by telephone, the trial court
adjourned the hearing, reset it for October 26, and ordered Hawkins to appear. Hawkins,
however, did not appear at the October 26 hearing, following which the trial court granted his
public defender’s motion to withdraw and issued a warrant for Hawkins’s arrest. Critically,
Hawkins was not notified that his public defender’s motion to withdraw had in fact been
granted.
On the morning of Hawkins’s November 7 trial, which was less than two weeks after
his public defender’s withdrawal, neither Hawkins nor an attorney was present. The State
told the trial court that it had learned that Hawkins was arriving around 1:30 p.m. because he
had to take a bus to Indiana. Tr. p. 34. Although waiting thirty minutes, the trial court
conducted the trial in Hawkins’s absence anyway. Hawkins arrived several hours after his
trial was concluded. Appellant’s App. p. 97. Hawkins was told that his trial was over and
was taken into custody. Id. Hawkins later sent a letter to the court explaining his absence.
Unlike in Jackson, Hawkins did not repeatedly ignore scheduled events. Instead,
Hawkins (1) did not appear at the rescheduled October 26 hearing and (2) showed up several
hours late to his trial, which had already been conducted in his absence. This does not
13 amount to repeatedly ignoring scheduled events. Second, unlike in Jackson, where the
defendant had the ability to and did hire an attorney, here Hawkins is indigent and depended
on the court for pauper counsel. Third, unlike in Jackson, where the defendant discharged
his counsel and told the trial court that he was going to hire new counsel, Hawkins did not
discharge his counsel, did not indicate he could or would hire new counsel, and did not know
with certainty that his public defender’s motion to withdraw had been granted. And while
Hawkins may have been warned earlier that his failure to appear would result in the
withdrawal of his public defender, notice was not sent to him that his public defender had in
fact been removed. Fourth, here less than two weeks passed between the discharge of
Hawkins’s public defender and his trial. Finally, and most importantly, there is no indication
here that Hawkins was trying to “game” the system like the defendant in Jackson.
While I do not condone Hawkins’s failure to timely contact the trial court to say that
he would be late for his November 7 trial, given these flimsy facts, there is no indication that
Hawkins was trying to “game” the system, and the law indulges every reasonable
presumption against a waiver of this fundamental right, Johnson, 304 U.S. at 464, I do not
believe that the record supports the conclusion that Hawkins knowingly, intelligently, and
voluntarily waived his right to counsel.2 I would reverse the trial court and remand the case
for a new trial.
1 I agree with the majority that this case has nothing to do with advising Hawkins regarding the pitfalls of proceeding pro se. Rather, this case deals with the waiver of counsel.