Stephonn T. Sutton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 10, 2019
• Docket: 18A-CR-2430
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 10 2019, 10:04 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Peter D. Todd Curtis T. Hill, Jr. Elkhart, Indiana Attorney General

Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Stephonn T. Sutton, May 10, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2430 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Kristine A. Appellee-Plaintiff Osterday, Judge Trial Court Cause No. 20D01-1710-F6-1508

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2430 | May 10, 2019 Page 1 of 3 [1] Stephonn T. Sutton appeals his conviction for level 6 felony failure to return to

lawful detention. Sutton failed to appear at his jury trial and was tried in

absentia.1 He concedes that he knowingly and voluntarily waived his right to

counsel and had elected to represent himself at his jury trial. He now asserts

that the trial court violated his right to counsel in failing to order standby

counsel to represent him and try his case in his absence. Sutton has failed to

satisfy Indiana Appellate Rule 46’s requirement of providing a cogent argument

supported by citation to authority. See Ind. Appellate Rule 46(A)(8)(a)

(providing that each contention made in argument section of appellant’s brief

“must contain the contentions of the appellant on the issues presented,

supported by cogent reasoning” and “citations to the authorities … relied on.”).

Accordingly, he has waived appellate review of this issue. See Foutch v. State, 53

N.E.3d 577, 581 n.1 (Ind. Ct. App. 2016) (waiving issue for lack of cogent

argument).

[2] Waiver notwithstanding, Sutton’s claim is without merit. Despite the knowing

and voluntary waiver of his right to counsel, Sutton appears to suggest that the

trial court abused its discretion in failing to reassert his right to counsel for him

and to direct standby counsel to take over when he failed to appear. We

1 Although criminal defendants have the constitutional right to be present at all stages of their trial, a defendant may be tried in absentia if the trial court determines that the defendant knowingly and voluntarily waived the right to be present. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007). Sutton does not assert that his constitutional right to be present was violated or that he did not knowingly and voluntarily waive that right. Indeed, it is undisputed that he knew of the scheduled trial date but failed to appear. See Brown v. State, 839 N.E.2d 225, 227 (Ind. Ct. App. 2005) (trial court may presume defendant voluntarily, knowingly, and intelligently waived right to be present upon showing defendant knew scheduled trial date but failed to appear), trans denied (2006).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2430 | May 10, 2019 Page 2 of 3 initially note that the appointment of standby counsel for a pro se defendant is

discretionary, as is the trial court’s decision to direct standby counsel to take

over at any point during the proceedings. Sherwood v. State, 717 N.E.2d 131,

135 n.2 (Ind. 1999). Moreover, it is within the trial court’s discretion to

determine whether a defendant may abandon his pro se defense after the trial

has begun and reassert his right to counsel. Koehler v. State, 499 N.E.2d 196,

198-99 (Ind. 1986). We do not equate Sutton’s voluntary failure to appear as a

reassertion of the right to counsel, and the trial court was under absolutely no

obligation to direct standby counsel to take over the proceeding in Sutton’s

absence. We find no abuse of discretion and affirm the conviction.

[3] Affirmed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2430 | May 10, 2019 Page 3 of 3