Brock v. State

• Decision Date: 20 August 1990
• Docket Number: No. 38A02-8903-CR-103,38A02-8903-CR-103
• Citation: 558 N.E.2d 872
• Parties: Christopher Berry BROCK, Appellant (Defendant Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 872

558 N.E.2d 872

Christopher Berry BROCK, Appellant (Defendant Below), v. STATE of Indiana, Appellee.

No. 38A02-8903-CR-103.

Court of Appeals of Indiana Second District.

Aug. 20, 1990.

Max C. Ludy, Jr., Ludy & Bright, Portland, for appellant.

Linley E. Pearson, Atty. Gen., Jane A. Morrison, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Christopher Berry Brock (Brock) appeals his conviction and sentence for Driving While License Suspended, a class A misdemeanor, and Possession of Marijuana, a class D felony.

We affirm in part and reverse in part.

On April 28, 1988, Brock was charged by information with possession of marijuana and driving while his license was suspended. Trial by jury resulted in Brock's conviction on both counts.

Brock was sentenced to one (1) year at the Jay County Jail on the driving while suspended charge and "three (3) years at the Indiana Department of Corrections" on the possession charge. Record at 84. Two years of the marijuana sentence were suspended, with the balance to be served at the Jay County Jail. Both terms were to be served consecutively. Brock was ordered to reimburse the Jay County Jail $10.00 per day for room and board. He was also ordered to pay $300.00 to the County Weed Eradication Fund. Brock was placed on probation for three (3) years following his incarceration. One of those years was to be served under home detention.

Brock's appeal presents the following issues:

(1) Whether it was error to allow the jury, during deliberations, to view exhibits containing marijuana.

(2) Whether the following aspects of sentencing are erroneous:

(a) Whether an enhanced sentence is supported by the record and reasons stated therein?

(b) Whether Brock was improperly confined in the Jay County Jail?

(c) Whether it was error to impose home detention upon Brock's release from jail?

(d) Whether the order imposing house arrest is facially invalid?

(e) Whether the court could properly order that Brock have no visitors during the period of his home detention?

(f) Whether the effect of certain conditions of probation constitutes cruel and unusual punishment?

(g) Whether the $10.00 per day room and board fee was improper?

(h) Whether the trial court erred in ordering Brock to pay $300.00 to the marijuana eradication fund?

(i) Whether the length of the term of probation is in error?

I.

During deliberations, the jury requested that it be allowed to review exhibits containing marijuana. Over objection of defense counsel, the request was granted. Brock alleges that this allowed undue emphasis to be placed on these exhibits relative to other evidence.

In fact, the jury was allowed to review all the evidence. The record reveals that a request was made to review the marijuana and counsel for defense was given the opportunity to object. He did so, first, on the basis that the jury should be allowed to see all the evidence. He then objected to the jury reviewing any evidence because it had already been seen.

The court overruled counsel's objection and returned the jury to the courtroom:

"JUROR: We're here to look at the items of evidence. Do we do that in the Jury box?

THE COURT: No. Eh, I just want to note for the record that the jury has been returned to the courtroom. You may be seated. This is the evidence table. This is all the evidence that's admitted. You may review it.

JUROR: Can we also review these?

THE COURT: Yes. Yes, you can review all the evidence." Record at 253.

Our Supreme Court has held that the practice of allowing jury review of evidence is "clearly provided for." Long v. State (1981) Ind., 422 N.E.2d 284, 287. There is no error where, as here, "all the exhibits were reviewed in open court with both parties present and no undue emphasis was placed upon any particular exhibit." Id.

II.

As noted, Brock attacks his sentence upon numerous grounds:

(A) Whether Brock's sentence is adequately supported by the record.

One who commits a class A misdemeanor may receive a sentence of up to one year. I.C. 35-50-3-2 (Burns Code Ed.1985). The presumptive sentence for a class D felony is two years and up to two years may be added for aggravating circumstances. I.C. 35-50-2-7(a). Brock received the maximum sentence upon his class A misdemeanor conviction and three years upon the class D felony charge. In addition, the terms were required to be served consecutively.

When a trial court imposes an increased or consecutive sentence, the record must reflect sufficient reasons therefor. The statement by the trial court must contain three elements: (1) identification of all significant mitigating and aggravating circumstances, (2) specific facts and reasons which lead the court to find the existence of each circumstance, and (3) articulation demonstrating the balancing of significant mitigating and aggravating circumstances. Coates v. State (1989) Ind., 534 N.E.2d 1087; Hammons v. State (1986) Ind., 493 N.E.2d 1250. Brock argues that the trial court did not adequately comply with this requirement.

The trial court found as a mitigating factor the hardship that would be placed upon Brock's family if he were given long-term imprisonment. However the court listed numerous aggravating factors, including (1) prior convictions of a similar nature, (2) the failure to undergo counseling or do something meaningful about his "habit", (3) the large quantity of marijuana involved in the present case, (4) the failure of defendant to respond to less severe penalties, (5) the belief that the imposition of a reduced sentence would depreciate the seriousness of the offense, (6) defendant's threat to a police officer after the trial, and (7) defendant's lack of remorse.

The record sufficiently supports the imposition of enhanced and consecutive sentences. See e.g., Stewart v. State (1988) Ind., 531 N.E.2d 1146, 1150; Dumbsky v. State (1987) Ind., 508 N.E.2d 1274, 1278; Roland v. State (1986) Ind., 501 N.E.2d 1034, 1040-41; White v. State (1986) Ind., 495 N.E.2d 725, 729.

(B) Confinement in Jay County Jail.

Next, appellant asserts he was improperly confined in the Jay County Jail. Brock was sentenced to one year at the Jay County Jail on the driving while suspended charge, a misdemeanor. He also received "three years at the Indiana Department of Correction on the possession of marijuana charge." Record at 345. The court ordered execution of one year on the possession charge, stating "I'll allow that to be served at the Jay County Jail," consecutive to the sentence for driving while suspended. Record at 345.

The order on sentencing, however, directed the clerk to "issue commitment papers to the Sheriff of Jay County for two (2) years with good time, and credit for time served with work release." Record at 84.

While the order is confusing, we do not agree that appellant was improperly confined in the county jail instead of the Department of Correction. He interprets I.C. 35-38-1-14, I.C. 35-38-3-2, and I.C. 35-38-3-4 as requiring "the transfer of a sentenced individual to the Department of Correction without delay." Appellant's Brief, p. 14. We do not read these statutes to so require.

I.C. 35-38-1-14 (Burns Code Ed.1988) requires that the court send a copy of the pre-sentence report and related materials when a convicted person is sentenced to imprisonment. I.C. 35-38-3-2, however, directs that the court "without delay, certify, under the seal of the court, copies of the judgment of conviction and sentence to the receiving authority." (Burns Code Ed.1988).

A "receiving authority" is defined in I.C. 35-38-3-1 as:

"(1) the Department of Correction;

(2) a sheriff, if incarceration is authorized in a county jail; or

(3) a facility or place designated by the Department of Correction." (Burns Code Ed.1988).

Thus the legislature contemplated situations in which an offender would be incarcerated in a county jail following sentencing. The question remains as to who may authorize such incarceration.

A number of cases hold that the determination of locale for imprisonment is for the determination of the Department of Correction. Those cases, however, deal with situations in which the defendant was committed to the Department of Correction but in which there was a request to, or an attempt by, a trial court to mandate incarceration in a particular institution. See e.g., Griffin v. State (1984) Ind., 461 N.E.2d 1123; Barnes v. State (1982) Ind., 435 N.E.2d 235; Dorton v. State (1981) Ind., 419 N.E.2d 1289; Marsh v. State (1979) 271 Ind. 454, 393 N.E.2d 757; Parker v. State (1989) 1st Dist. Ind.App., 542 N.E.2d 1026. The present case involves the opposite situation: the failure of the trial court to commit defendant to the Department accompanied by an assertion that it should have so ordered.

With the exception of the Parker decision, the above cases were decided under former I.C. 35-4.1-5 et seq. (transferred by compiler to I.C. 35-50-5A et seq.) (Burns Code Ed. Repl.1979). ¹ That chapter, repealed in 1983 and replaced with 35-38-3, required that the sheriff, within five days of sentencing, "convey the convicted person to a penal facility or program designated by the department." I.C. 35-4.1-5-2 (transferred by compiler to 35-50-5A-2) (Burns Code Ed.Repl.1979).

The current statutory scheme requires the sheriff to transport the convicted person to a receiving authority. I.C. 35-38-3-4 (Burns Code Ed.1988). Because a receiving authority is defined both as a sheriff when incarceration is authorized in a county jail, and as a place designated by the Department, a logical interpretation is that the legislature intended that authorization of incarceration in a county facility might permissibly emanate from an entity other than the Department. See I.C. 35-38-3-1.

Additional support for such interpretation is found in Title 11. This legislation established the Department of Correction as part of the executive branch of state government and empowered the Department with the...