Arline v. State

• Decision Date: 16 December 2011
• Docket Number: No. 48A04-1103-CR-133,48A04-1103-CR-133
• Parties: WILL ARLINE, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

WILL ARLINE, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 48A04-1103-CR-133

COURT OF APPEALS OF INDIANA

December 16, 2011

Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before

any court except for the purpose of

establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

JASON A. CHILDERS

Hulse, Lacey, Hardacre, Austin,

Sims & Childers, P.C.

Anderson, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ANN L. GOODWIN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MADISON CIRCUIT COURT

The Honorable Rudolph R. Pyle III, Judge

Cause No. 48C01-0908-FC-482

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Will Arline appeals his conviction of three counts of Class C felony forgery.¹ Arline presents four issues for our consideration:

1. Whether the trial court abused its discretion by trying Arline in absentia;

2. Whether the trial court abused its discretion when it twice denied Arline's motions for continuance;

3. Whether the State presented sufficient evidence Arline committed Class C felony forgery; and

4. Whether Arline's sentence is inappropriate based on his character and the nature of his crime.

We affirm.

FACTS AND PROCEDURAL HISTORY

In December 2008, Sarah Peters stole Thomas Barber's checkbook. Peters forged Barber's signature and made the checks out either to Arline or herself. When Peters made the checks out to herself, she would sign them over to Arline or his mother. Between March 3 and April 8, 2009, Arline cashed fifteen checks from Barber's account totaling $7,280.00. In exchange for cashing each check, Peters gave Arline a portion of each check. Barber discovered the theft after his banker told him his account was overdrawn.

The State charged Arline with three counts of Class C felony forgery, and police arrested him on December 10, 2009. Arline did not appear for a pre-trial hearing on March 1, 2010, and the trial court issued a warrant for his arrest. At his contempt hearing on April 26, the trial court purged Arline of contempt and informed him his jury trial was scheduledfor October 26. The court ordered Arline to remain in contact with his counsel and to inform counsel of any telephone number or address changes.

On September 13, Arline attended a hearing during which the court granted Arline's request for a two-week continuance to consider his options regarding three separate sets of charges, including the forgery counts that are the subject of this appeal. At that hearing, the court again reminded Arline his trial was set for October 26. On September 27, the court completed the hearing, told Arline his jury trial was scheduled for October 26, and told him to "keep in touch" with his attorney. (Tr. at 14.)

On October 21, Arline's counsel asked for a continuance because he had been unable to contact Arline since September 27. The trial court denied the motion and held Arline's jury trial as scheduled on October 26. Arline did not attend his trial, and nothing in the record suggests he told the court he would not be present. At the trial, the State moved to amend the charges against Arline, and defense counsel did not object. Defense counsel requested a continuance based on the amendment, but the trial court denied the request. The jury found Arline guilty on all counts, and the trial court entered convictions against Arline in absentia. The court issued an arrest warrant for Arline.

On January 10, 2011, Arline appeared for his sentencing hearing and claimed he did not attend his trial because he did not have transportation.² The trial court ordered a pre-sentencing report and scheduled Arline's sentencing hearing for February 23. Arlineremained in jail until his sentencing hearing. On February 23, the trial court sentenced Arline to five years for each count, to be served concurrently, with two years suspended, two years executed at the Indiana Department of Correction, and one year executed on in-home detention.

DISCUSSION AND DECISION

1. Conviction in Absentia

The Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Indiana Constitution give a criminal defendant the right to be present during his trial. 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." Holtz v. State, 858 N.E.2d 1059, 1061 (Ind. Ct. App. 2006), trans. denied. When a defendant does not appear in court, notify the trial court, or provide an explanation for his absence, the trial court "may conclude that the defendant's absence is knowing and voluntary and proceed with trial when there is evidence that the defendant knew of his scheduled trial date." Id. at 1062.

When a defendant later appears in court, the trial court must afford him an opportunity to present evidence that his absence from the trial court was not voluntary, but the trial court is not required to make a sua sponte inquiry. Id. at 1062-63. On appeal, we examine the entire record to determine if the defendant's absence was voluntarily, knowingly, and intelligently made. Id. at 1062.

We hold Arline knowingly and voluntarily waived his right to be present at his trial because the trial court notified Arline of his trial date on at least three occasions - at hisinitial hearing, at his contempt hearing, and at his dispositional hearing. Arline argues the trial court did not inquire about his whereabouts before trial; however, neither did Arline notify the court in advance that he would be absent. At his sentencing hearing, Arline stated he was unable to attend his trial because he did not have transportation. Because Arline received notification of his trial date on three separate occasions and did not notify the court he could not attend his trial, he knowingly, voluntarily, or intelligently waived his right to be present at his trial. See Soliz v. State, 832 N.E.2d 1022, 1029 (Ind. Ct. App. 2005) (trial court did not err in convicting Soliz in absentia when he had twice been informed of his trial date and did not notify the court he would be absent, even though he later offered multiple reasons for his absence), trans. denied.

Arline also argues the trial court abused its discretion when it tried him in absentia because he received no initial hearing after the State amended the charges against him on the day of his trial. It did not. His counsel did not object to the State's amended charges, nor did counsel argue an initial hearing on the amended charges was required before trial could occur. We therefore cannot find error in the trial court's decision. See Costello v. State, 643 N.E.2d 421, 422 (Ind. Ct. App. 1994) ("The failure of the record to show either an arraignment or plea, or both, will not invalidate a conviction unless the record shows the defendant objected, before the trial commenced, to the lack of arraignment or plea.").

2. Motions to Continue

When, as here, a party moved for a continuance not required by statute,³ we review the court's decision for abuse of discretion. Flake v. State, 767 N.E.2d 1004, 1008 (Ind. Ct. App. 2002). An abuse of discretion occurs when the ruling is against the logic and effect of facts and circumstances before the court or the record demonstrates prejudice from denial of the continuance. Id. Continuances to allow more time for preparation are generally disfavored in criminal cases. Risner v. State, 604 N.E.2d 13, 14 (Ind. Ct. App. 1992), trans. denied.

a. Motion on October 21, 2010

On October 21, 2010, less than a week before Arline's trial date, Arline's counsel requested a continuance because he had not had contact with Arline since September 27. Arline claims he was prejudiced by the denial of the continuance because he did not have time to confer with his counsel prior to trial. However, the court twice admonished Arline to maintain communication with his counsel, but Arline did not. His trial counsel indicated he unsuccessfully attempted to contact Arline, and the trial court conducted contempt proceedings against Arline earlier in the proceedings because he did not appear at a pre-trial hearing. Arline has not demonstrated prejudice from the denial of this motion for continuance, and therefore we hold the trial court did not abuse its discretion in doing so.

b. Motion on October 26, 2011

On October 26, 2011, the day of Arline's trial, his counsel requested a continuance because Arline was not present. Arline claims the trial court abused its discretion when itdenied this continuance because he was not present when the State amended the charges against him on the day of his trial and thus he was unable to properly defend against the amended charges. We disagree.

For an amendment to charges to be prejudicial, the defendant must demonstrate he was unable to properly formulate a defense based on the amended charges. Wilkinson v. State, 670 N.E.2d 47, 48 (Ind. Ct. App. 1996), trans. denied. The amended charges changed the check numbers the State alleged were uttered by Arline in support of the forgery charge against him. Arline has not indicated how the change in check numbers would have impaired his defense, and therefore he has not demonstrated prejudice from the amendments.

Further, a trial court does not abuse its discretion when it denies a request for a continuance based on the defendant's unexplained absence. Fletcher v. State, 537 N.E.2d 1385, 1386 (Ind. 1989). Thus, we hold Arline has not demonstrated the trial court abused its discretion when it denied his request, through counsel, for a continuance.

3. Sufficiency of the Evidence

When reviewing sufficiency of evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial court's decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the jury's role, and not ours, to assess witness credibility...