State of Indiana v. Samuel E. Vande Brake

• Court: Indiana Court of Appeals
• Decided: April 3, 2020
• Docket: 19A-CR-1772
• Status: Published

Opinion

FILED Apr 03 2020, 6:17 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Curtis T. Hill, Jr. Ross G. Thomas Attorney General of Indiana Indianapolis, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

State of Indiana, April 3, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-CR-1772 v. Appeal from the Tippecanoe Superior Court Samuel E. Vande Brake, The Honorable Randy Williams, Appellee-Defendant, Judge Trial Court Cause No. 79D01-1903-F1-5

Robb, Judge.

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 1 of 15 Case Summary and Issue [1] Following an incident in which Samuel Vande Brake shot his roommate, the

State charged him with several battery offenses, criminal recklessness, and

attempted murder. Before trial, the State filed a motion to add a firearm

enhancement, which the trial court granted. A jury found Vande Brake guilty

of aggravated battery, a Level 3 felony; battery by means of a deadly weapon

and battery resulting in serious bodily injury, both Level 5 felonies; and

criminal recklessness committed with a deadly weapon, a Level 6 felony. The

jury found Vande Brake not guilty of attempted murder. After the jury

delivered its verdicts, the trial court accepted the verdicts and thanked the jury.

The jury was excused and permitted to leave the courtroom. The State then

raised the firearm enhancement issue and the trial court responded that the

enhancement was never discussed at any time prior to and during the trial. The

trial court sua sponte dismissed the enhancement as “a matter of course” and the

State did not object.

[2] Following the dismissal of the enhancement, the State filed a motion to correct

error requesting that the firearm enhancement be reinstated. The trial court

denied the motion. At sentencing, the trial court entered judgment of

conviction for aggravated battery, a Level 3 felony, and the remaining counts

were vacated. The trial court sentenced Vande Brake to serve nine years in the

Indiana Department of Correction (“DOC”), two of which were suspended to

probation. The State appeals and raises one issue for our review, namely

whether the trial court abused its discretion when it dismissed the firearm

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 2 of 15 enhancement sua sponte. Concluding the trial court abused its discretion, we

reverse the dismissal of the firearm enhancement and remand with instructions

for the trial court to impanel a new jury to hear the enhancement charge.

Facts and Procedural History [3] Since June 2017, Vande Burke and his friend, Tristan Fernandez, had been

living as roommates in Vande Burke’s parents’ basement in Lafayette, Indiana.

On October 19, 2017, law enforcement officers responded to a report by Vande

Burke’s mother, Barb, that Vande Burke had shot Fernandez in their basement.

When officers arrived, they found Fernandez in the basement and rendered first

aid until an ambulance arrived. Barb told officers that earlier that afternoon,

Vande Burke was angry and told her he intended to kick Fernandez out of the

house. At some point later, Barb heard “loud angry voices[,]” overheard Vande

Brake say “get out,” and then heard a shot. Appellant’s Appendix, Volume 2 at

17. Barb went downstairs where she saw Fernandez on the floor with blood on

him; Vande Brake told Barb that Fernandez had been shot.

[4] Fernandez was admitted to the hospital and treated for a gunshot wound to the

chest. The next day, officers spoke with Fernandez, who stated he and Vande

Brake had been living in the basement of Vande Brake’s parents’ home. On

October 19, Vande Brake got upset and told Fernandez to pack his things and

leave the residence. As Fernandez was packing, Vande Brake came downstairs,

became “hostile and began yelling at him and at one point . . . pulled out a

handgun.” Id. Vande Brake put the gun to Fernandez’s chest and Fernandez

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 3 of 15 pushed the gun away and told Vande Brake not to pull the gun on him. Vande

Brake then shot him in the chest.1

[5] On October 26, 2017, the State charged Vande Brake with the following: Count

I, aggravated battery, a Level 3 felony; Count II, battery by means of a deadly

weapon, a Level 5 felony; Count III, battery resulting in serious bodily injury, a

Level 5 felony; and Count IV, criminal recklessness, a Level 6 felony, under

Case No. 79D01-1710-F3-26. On November 3, the State filed a motion to add

a “use of firearm” sentence enhancement. The trial court granted the motion

and directed the magistrate to conduct an initial hearing on the new count. See

id. at 24-26.

[6] Following an initial hearing, the magistrate issued an order stating that “[a]ll

proposed final instructions shall be submitted prior to the commencement of

trial but need not be exchanged with opposing counsel until the conclusion of

the evidence in this case.” Id. at 27. Vande Brake was ordered not to have any

contact with the victim in this case. In addition, the order required that an

objection to any portion of the order must be made in writing and filed within

fifteen days of the order’s entry. See id. at 30. No objections were filed.

[7] Vande Brake subsequently filed a Notice of Self-Defense. On December 28,

2018, the State filed a Motion to Add Additional Count of attempted murder, a

1 As the transcript and corresponding exhibits from the jury trial were not included in the record on appeal, the underlying facts set forth in the first two paragraphs are derived solely from the probable cause affidavit contained in the State’s Appendix.

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 4 of 15 Level 1 felony. In its motion, the State also requested that the attempted

murder count be listed as Count V and the previously filed firearm

enhancement be listed as Count VI. See id. at 55. Over Vande Brake’s

objection, the trial court granted the State’s motion and later ordered the clerk

to assign a new cause number to the case. On March 26, 2019, all counts from

the previous case number were transferred to a new case number that also

included the attempted murder count: Case No. 79D01-1903-F1-5. See id. at 66-

67. Notably, neither Chronological Case Summary (“CCS”) lists the firearm

enhancement as a charged offense in the Case Information section. See id. at 2,

67. However, the CCS for Case No. 26 reflects the State’s motion to add the

enhancement and the trial court’s grant of that motion. See id. at 4-5. The State

never brought this to the trial court’s attention, nor did it mention the firearm

enhancement or the need for bifurcated proceedings at any pre-trial hearings in

which trial procedure was discussed.

[8] Vande Brake filed his proposed jury instructions on June 12, 2019. The State

filed its proposed preliminary and final instructions the next day, none of which

mentioned the firearm enhancement or bifurcation. The trial court provided its

preliminary instructions the same day. A jury trial was held on June 18-20,

2019. Ultimately, the jury found Vande Brake guilty of Counts I through IV

and not guilty of Count V (attempted murder). Following the verdicts, the trial

court accepted the verdicts and thanked the jury:

The Court: Court accepts the verdicts enters judgment of conviction as to counts one, two, three and

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 5 of 15 four and enters of acquittal as to count five. Ladies and gentleman I want to thank you, it took almost an entire three days. I hope you – the things I talked about when you first got here I hope they proved to be true in terms of how important this process is and that going through the process is something that not necessarily that you would enjoy but you understand the importance and that you would be glad that you did it. We all thank you for your time and efforts throughout this process. I would ask that when you are excused if you could please wait for me back in the jury room, and I’ll be back in there in just a couple minutes. Alright.

Court Bailiff: All rise.

[At this time the jury is excused and permitted to leave the courtroom]

The Court: You may be seated, thank you.

Transcript, Volume 1 at 5-6.

[9] However, after this, the State immediately said, “Judge, there’s a firearm

enhancement that would attach to the aggravated battery count.” Id. at 6. The

trial court responded:

We’ve never talked about that. It was not discussed. It was not discussed at any time during the course of this trial. It was not discussed prior to and in preparation of this trial. I – there was nothing stated about a jury. The jury has now been excused. The defendant has not waived jury as to that. The Court Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 6 of 15 dismisses it as a matter of course. Okay, seventy-two hours, three days to confer about what will happen if that was the case. We were here last night after the close of evidence, since 11:00 o’clock, 10:00 o’clock today, we’ve had the opportunity to discuss that matter and nothing has been raised. . . .

Id.2 The State did not respond or object to the dismissal of the enhancement at

this time.

[10] Instead, on June 27, the State filed a Motion to Correct Error requesting that

the trial court reinstate the firearm enhancement. In support of reinstatement,

the State relied on Indiana Code section 35-50-2-11(f), which states that if an

individual is convicted of an offense defined by subsection (b) – here,

aggravated battery – “in a jury trial, the jury shall reconvene to hear evidence in

the enhancement hearing.” The State argued that “[a]t no point prior to the

trial or during the trial proceedings did defense counsel claim the enhancement

was untimely filed, or that he lacked notice that it would be tried, or that there

was any procedural defect in the filing.” Appellant’s App., Vol. 2 at 90. The

State suggested the following remedies with respect to the requested

reinstatement of the enhancement:

a. Empanel a new jury for the purposes of hearing evidence, deliberating upon, and rendering a decision on the firearm enhancement.

2 Notably, the same judge who granted the State’s motion to add the firearm enhancement also presided over the trial and dismissed the enhancement. See Appellant’s App., Vol. 2 at 26; see generally Tr., Vol. 1.

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 7 of 15 i. In Carter v. State, the trial court decided after the original jury returned guilty verdict [sic] that its calendar did not allow for an immediate Habitual Offender trial, so it dismissed the original jury and called a new jury several weeks later for a separate Habitual Offender trial. Carter v. State, 505 N.E.2d 798, 801 (Ind. 1987).

ii. In Wade v. State, the trial court decided that the first jury had done enough work when it returned a guilty verdict after a five-day trial and that it would be “inconvenient” to have them wait over a weekend to do the Habitual Offender portion of the trial. Therefore, the Court dismissed the first jury and empaneled a new jury over six weeks later to do the Habitual Offender portion of the trial. Wade v. State, 718 N.E.2d 1162, 1169 (Ind. Ct. App. 1999).

b. Allow [Vande Brake] the opportunity to waive the enhancement portion of the jury trial to a bench trial.

c. Allow [Vande Brake] the opportunity to admit to the enhancement. During the trial, [Vande Brake] admitted to using the firearm to shoot the victim while claiming self-defense. Ultimately, the jury rejected his defense. With this only being an enhancement, admitting to the enhancement would not affect [Vande Brake]’s appellate rights – should the count to which the enhancement attaches get reverse, so too would the enhancement.

Id. at 91.

[11] Vande Brake responded, requested that the trial court deny the State’s motion

to correct error, and asserted:

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 8 of 15 4. The trial is over. There is no jury to call back. There is no time to have yet another jury trial before sentencing.

5. There before trial the State of Indiana submitted Preliminary Instructions that did not mention a single word about bifur[ca]tion or the Sentencing Enhancement.

6. That during the course of the trial, despite the State being represented by two (2) Deputy Prosecuting Attorneys, was not a single, solitary word about the Firearms Enhancement was mentioned by the State and not a word before the dismissal of the jury.

Id. at 93. The trial court subsequently denied the State’s motion to correct

error.

[12] After the trial court’s denial but prior to sentencing, the State filed two motions

– a Motion to Stay Sentencing Pending Appeal and a Motion to Reconsider

State’s Motion to Correct Error – but later withdrew these motions at the

sentencing hearing, which was held on July 19, 2019. See id. at 97-98, 101-02.

At sentencing, the trial court entered judgment of conviction on Count I only,

aggravated battery, a Level 3 felony, and vacated Counts II, III, and IV. The

trial court sentenced Vande Brake to serve nine years, seven years executed in

the DOC and two years suspended to probation. See Sentencing Order at 2.

The State now appeals.

Discussion and Decision

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 9 of 15 I. Standard of Review [13] Here, the State appeals from a negative judgment.

A judgment entered against a party bearing the burden of proof is a negative judgment. On appeal from a negative judgment, this Court will reverse the trial court only if the judgment is contrary to law. A judgment is contrary to law if the evidence leads to but one conclusion and the trial court reached an opposite conclusion. In determining whether the trial court’s judgment is contrary to law, we will consider the evidence in the light most favorable to the prevailing party, together with all reasonable inferences therefrom. We neither reweigh the evidence nor judge the credibility of witnesses. Further, “[w]hen appealing from a negative judgment, a party has a heavy burden to establish to the satisfaction of the reviewing court that there was no basis in fact for the judgment rendered.”

Burnell v. State, 56 N.E.3d 1146, 1149-50 (Ind. 2016) (internal citations omitted).

II. Dismissal of Firearm Enhancement [14] The State argues the trial court improperly dismissed the firearm enhancement

because it lacked the authority to do so. We review a trial court’s decision to

dismiss a charging information for abuse of discretion. State v. Davis, 898

N.E.2d 281, 285 (Ind. 2008). And we will reverse only where the decision is

clearly against the logic and effect of the facts and circumstances. State v. Isaacs,

794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003).

[15] “Ordinarily, a trial court may not sua sponte dismiss an action unless the court

lacks jurisdiction or is otherwise authorized by statute or the rules of

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 10 of 15 procedure.” Zavodnik v. Richards, 984 N.E.2d 699, 703 (Ind. Ct. App. 2013)

(internal quotation omitted). Pursuant to the Indiana Code, upon motion by the

defendant or State, a trial court has the authority to dismiss an indictment or

information based on any of the enumerated statutory grounds. Ind. Code §§

35-34-1-4, 35-34-1-13. In addition, our supreme court has recognized a trial

court’s “inherent authority to dismiss criminal charges where the prosecution of

such charges would violate a defendant’s constitutional rights.” Davis, 898

N.E.2d at 285.

[16] With respect to a firearm enhancement, “[t]he state may seek, on a page

separate from the rest of a charging instrument, to have a person who allegedly

committed an offense sentenced to an additional fixed term of imprisonment if

the state can show beyond a reasonable doubt that the person knowingly or

intentionally used a firearm in the commission of the offense.” Ind. Code § 35-

50-2-11(d). An “offense” is defined as (1) a felony under Indiana Code article

35-42 that resulted in death or serious bodily injury; (2) kidnapping; or (3)

criminal confinement as a Level 2 or Level 3 felony. Ind. Code § 35-50-2-11(b).

If a person is convicted of an offense in subsection (b) of the statute “in a jury

trial, the jury shall reconvene to hear evidence in the enhancement hearing.”

Ind. Code § 35-50-2-11(f). And if the State proves the firearm enhancement, the

trial court may impose an additional fixed term of imprisonment of between

five and twenty years. Ind. Code § 35-50-2-11(g). There is no dispute that the

State properly filed the enhancement or that Vande Brake’s conviction is a

qualifying offense.

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 11 of 15 [17] Here, the State contends that once Vande Brake was convicted of the predicate

offense, namely aggravated battery, and the State reminded the trial court that

the prerequisite for the enhancement phase was met, the trial court was then

required to reconvene the jury. The State further asserts that the trial court’s

“request for the jury to wait outside for him to confer with counsel was

consistent with the court still contemplating the possibility of a second phase.”

Brief of Appellant at 10 n.1.

[18] Vande Brake argues that “[w]hile the State would have been entitled to a

bifurcated trial and a second phase following the jury’s verdict, it waived that

procedure by failing to follow court rules in the preparation and conduct of the

trial.” Brief of Appellee at 8. In support of this proposition, Vande Brake relies

on the trial court’s Initial Hearing Order issued by the magistrate which, in part,

stated that “[a]ll proposed final instructions shall be submitted prior to the

commencement of trial but need not be exchanged with opposing counsel until

the conclusion of the evidence in this case.” Appellant’s App., Vol. 2 at 27.

Vande Brake notes that under Indiana’s Pattern Jury Instructions, “[a] proper

second stage of a bifurcated trial would require that such instructions be given.”

Br. of Appellee at 10. The State counters that they are not required by rule or

statute to submit jury instructions and instead, jury instructions are left to the

discretion of the trial court.

[19] We agree that neither the trial court order nor the trial rules required that the

State offer instructions on the enhancement phase. See Denton v. State, 496

N.E.2d 576, 581 (Ind. 1986); Ind. Trial Rule 51(C) (“At the close of the

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 12 of 15 evidence and before argument each party may file written requests that the court

instruct the jury on the law as set forth in the requests.” (emphasis added)); T.R.

51(D). Here, the State properly filed a motion to add the firearm enhancement

count; the trial court granted the motion and therefore, was clearly aware of the

enhancement charge; neither the State nor Vande Brake moved to dismiss the

enhancement; the enhancement was pending throughout this case; and the trial

court lacked a legitimate basis for dismissing the enhancement sua sponte. We

therefore conclude the trial court abused its discretion when it dismissed a

legitimate and pending charge.

[20] We pause briefly to comment on the State’s shortcomings in this matter at the

trial court level. The heart of this dispute is rooted in the State’s tenuous

performance with respect to the enhancement. Except for the initial filing and

the trial court’s grant of the firearm enhancement, there is no evidence in the

record that the State raised the firearm enhancement or bifurcation in any

manner – it was not discussed prior to or during trial, was not included in any

proposed preliminary or final instructions, and was not included in the trial

court’s preliminary or final instructions. Furthermore, the State failed to object

to the trial court’s dismissal of the firearm enhancement on the spot and while,

presumably, the jury was still in the courthouse, waiting instead to file a motion

to correct error nearly one week later. And despite filing the enhancement

count, the State was careless in failing to observe that the count had not been

added to either CCS. We emphasize that parties bear a responsibility to

manage their cases and assist the court; a party may not sit idly by and

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 13 of 15 subsequently place the blame elsewhere for their own shortcomings. Although

the State may not have been required to submit jury instructions on the issue,

the State, having the burden of proof in both phases, had an obligation to raise

the issue in a timely manner. But for the enhancement statute’s requirement

that the jury reconvene to hear the enhancement phase, this issue would have

been waived under these circumstances. We therefore take this opportunity to

remind the State to be mindful of this responsibility in the future.

[21] Nonetheless, our jurisprudence permits the trial court to impanel a new jury on

the enhancement phase as an appropriate remedy. See Carter v. State, 505

N.E.2d 798, 801 (Ind. 1987) (no error when the a trial court decided to impanel

a new jury for the habitual offender phase because the trial judge’s calendar did

not allow a trial on the habitual offender phase for several weeks); Wade v. State,

718 N.E.2d 1162, 1169 (Ind. Ct. App. 1999) (holding that, when necessary, a

trial court is authorized to impanel a new jury to hear a habitual charge), trans.

denied. And as such, we reverse the trial court’s dismissal of the enhancement

and remand with instructions that the trial court impanel a new jury to try

Vande Brake on the enhancement.

Conclusion [22] We conclude that the trial court abused its discretion in dismissing the firearm

enhancement. Accordingly, we reverse the dismissal of the firearm

enhancement and remand to the trial court with instructions to impanel a new

jury to hear the enhancement charge.

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 14 of 15 [23] Reversed and remanded.

Riley, J., and May, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 15 of 15