Cleff v. State, 42A01-9009-CR-362

• Citation: 565 N.E.2d 1089
• Decision Date: 28 January 1991
• Docket Number: No. 42A01-9009-CR-362,42A01-9009-CR-362
• Parties: H. Denny CLEFF, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 1089

565 N.E.2d 1089

H. Denny CLEFF, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 42A01-9009-CR-362.

Court of Appeals of Indiana,

First District.

Jan. 28, 1991.

Transfer Denied May 30, 1991.

Susan K. Carpenter, Public Defender, Patrick R. Ragains, Deputy Public Defender, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

H. Denny Cleff (Cleff) appeals the denial of his petition to file a belated praecipe needed to appeal his convictions of ten counts of drug-related offenses. We affirm.

ISSUE

Whether the trial court erred in denying Cleff permission to file a belated praecipe.

FACTS

Cleff was convicted of ten counts of drug-related offenses on April 19, 1989. He was released on bond pending sentencing which, Cleff having waived the thirty day requirement for sentencing, was set for June 1, 1989, at 3:00 p.m. The court ordered Cleff not to leave Indiana pending sentencing. Soon after the jury's verdict, Cleff's attorneys informed Cleff he would probably receive a sentence of thirty-five years or more. Cleff then left Indiana and travelled to California.

Cleff did not appear at his sentencing on June 1, 1989, whereupon the court issued a warrant for his arrest. The court also sentenced Cleff on all ten counts to an aggregate sentence of thirty years, with ten years suspended.

On September 2, 1989, Illinois police arrested Cleff and transferred him to the Indiana Department of Correction to serve his sentence. On January 31, 1990, in Cause No. 42D01-8909-CF-044, Cleff was convicted of Failure to Appear ¹ at the June 1, 1989, sentencing hearing.

On May 14, 1990, Cleff, by counsel, filed a petition for permission to file a belated praecipe in the case involving the ten drug-related convictions. Cleff accompanied his petition with his own affidavit and with affidavits from his trial attorney and the attorney initially appointed as his appellate counsel. The court denied Cleff's petition without an evidentiary hearing on May 31, 1990. Cleff now appeals the denial of his petition.

DISCUSSION AND DECISION

Cleff asserts the trial court erred in denying him permission to file a belated praecipe. Cleff supports his assertion with arguments that the court should not have sentenced him in absentia and that he did not forfeit his right to an appeal by absenting himself from sentencing.

A defendant has a right to be present when sentenced, Disney v. State (1982), Ind.App., 441 N.E.2d 489, 492; IND.CODE Sec. 35-38-1-4(a). ² However, "[a] defendant may waive his right to be present at sentencing if it is shown that his absence from the jurisdiction at the time of that proceeding is knowing and voluntary." Crank v. State (1987), Ind.App., 502 N.E.2d 1355, 1359, trans. denied. A trial court may conclude a defendant's absence from sentencing is knowing and voluntary when there is evidence the defendant knew the date of sentencing. Williams v. State (1988), Ind., 526 N.E.2d 1179, 1180. The best evidence of a defendant's knowledge is the defendant's presence in court on the day the sentencing is scheduled. Id.

Cleff acknowledges that Indiana case law permits sentencing an absent defendant in certain situations. However, Cleff argues the equal protection clauses of Amendment XIV of the United States Constitution and of Article One, Section One of the Indiana Constitution are violated when Indiana trial courts are permitted to choose whether to sentence an absent defendant or to wait until the defendant returns to the jurisdiction before sentencing the defendant and advising him of the right to appeal. Cleff argues he was similarly situated with, but treated differently from, other defendants who were absent from a sentencing hearing but were not sentenced and advised of their appeal rights until their return to the jurisdiction.

We first remind Cleff that: "Equal protection analysis requires strict judicial scrutiny of legislative classifications ³ only when the classification impinges impermissibly upon the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." Rohrabaugh v. Wagoner (1980), 274 Ind. 661, 413 N.E.2d 891, 893.

Cleff does not assert membership in a suspect class, but alleges his right to be present at sentencing is a fundamental right. A fundamental right is one explicitly or implicitly secured by the Constitution. See Harris v. McRae (1980), 448 U.S. 297, 312, 100 S.Ct. 2671, 2685, 65 L.Ed.2d 784, 801; O'Brien v. State (1981), Ind.App., 422 N.E.2d 1266, 1270. Neither the United States Constitution nor the Indiana Constitution explicitly or implicitly secure to a defendant the right to be present at sentencing. Furthermore, "the right to be present at the time sentence or judgment is pronounced is a common law right, separate and apart from the constitutional or statutory right to be present at the trial." Joseph v. State (1957), 236 Ind. 529, 540, 141 N.E.2d 109, 114, cert. dismissed (1959), 359 U.S. 117, 79 S.Ct. 720, 3 L.Ed.2d 673 (citing Ball v. United States (1891), 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377.) It is merely Indiana statutory law and common law which secure to a defendant the right to be present during sentencing. See I.C. Sec. 35-38-1-4(a); Crank, 502 N.E.2d at 1358; Disney, 441 N.E.2d at 492. Thus, a defendant's right to be present during sentencing is not a fundamental right and strict scrutiny of the state's classification is not required.

"Where a fundamental right is not involved, the standard of review is that the classification not be arbitrary or unreasonable and that a 'fair and substantial' relationship exist between the classification and the purpose of the legislation creating it." O'Brien, 422 N.E.2d at 1270 (citing Sidle v. Majors (1976), 264 Ind. 206, 341 N.E.2d 763.) The question is whether the State's classification is rationally related to furthering a legitimate state interest. See Sobieralski v. City of South Bend (1985), Ind.App., 479 N.E.2d 98, 100, trans. denied.

Here, the State's challenged action involved sentencing Cleff although he was voluntarily absent from the jurisdiction at the time of the sentencing hearing. Cleff asserts the decision by a trial court whether to sentence or to forgo sentencing an absent defendant is based on an arbitrary classification by an Indiana trial court.

The purpose of Crank, 502 N.E.2d at 1359, Williams, 526 N.E.2d at 1180, and similar cases which permit a trial court to sentence an absent defendant who has knowingly and voluntarily waived his right to be present at sentencing by remaining absent from the jurisdiction is to serve the interest of prompt judicial administration.

We agree with the State that:

"[I]t serves legitimate purposes to allow a judge discretion to sentence some absent defendants and to postpone the sentencing of others. The trial judge is in the best position to determine whether the defendant knowingly or intentionally absented himself from sentencing or, whether the court even has sufficient evidence before it to make a determination one way or the other.... [I]n some cases the court may determine it appropriate to listen to a defendant's explanation for his voluntary, knowing absence, to hear the Defendant's personal reaction to information contained in the pre-sentence investigation report, or to consider acts committed by the defendant pending sentencing before rendering an appropriate sentence. The court may consider sentencing in person a step in the rehabilitative process for some defendants."

Appellee's Brief at 7-8.

We cannot say the grounds are totally arbitrary or unreasonable which justify a trial court's decision to classify a case of an absent defendant as either one in which sentencing should take place in the defendant's absence or as one in which sentencing should be forgone until the defendant has been returned to the jurisdiction. We find the discretion permitted Indiana trial courts to so classify defendants is rationally related to furthering the legitimate state interest of prompt judicial administration.

Furthermore, Cleff has not shown that the trial court's discretionary decision to sentence him in absentia was unreasonable or arbitrary. Cleff was present through his entire trial and was aware of his ten convictions and of the date and time of his sentencing hearing. Thus, the trial court reasonably could have determined Cleff knowingly and voluntarily waived his right to be present during his sentencing hearing when Cleff failed to appear at sentencing. The court sentenced Cleff to concurrent sentences for all ten convictions and suspended ten years of the thirty year sentences for the four class A felony convictions. Thus, the trial court sentenced Cleff to the minimum possible executed sentence under IND.CODE Sec. 35-50-2-4 and IND.CODE Sec. 35-50-2-2(b)(4). We hold the trial court did not err in sentencing Cleff in absentia.

Cleff asserts that even if the court properly sentenced him although he was absent from the sentencing hearing, the trial court erred in implying by...