Crank v. State
| Citation | 502 N.E.2d 1355 |
| Decision Date | 29 January 1987 |
| Docket Number | No. 79A02-8603-PC-92,79A02-8603-PC-92 |
| Parties | William Eugene CRANK, Appellant (Petitioner), v. STATE of Indiana, Appellee (Respondent). |
| Court | Court of Appeals of Indiana |
J. Michael Trueblood, Lafayette, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Petitioner-appellant William Eugene Crank (Crank) appeals from the denial of his petition for post-conviction relief, 1 claiming that the trial court erred in ordering Crank to be tried and sentenced in absentia, and holding that Crank had waived his right to a direct appeal because of his absence from the jurisdiction.
We remand to the trial court for correction of the sentence imposed upon the habitual offender count.
Otherwise, the judgment is affirmed.
On September 30, 1980, Crank was charged with battery with a deadly weapon, a class C felony, 2 and battery causing serious bodily injury, a class C felony. 3 Crank was also alleged to be an habitual offender. 4
Crank appeared in court on November 17, 1980, and the trial court set an omnibus date for February 19, 1981, and a jury trial date on March 9, 1981. Crank was also in court on the omnibus date. On that day, the trial court denied Crank's motion for a continuance, and it again ordered Crank to appear on March 9 for trial. Crank failed to appear in court on March 9. After the trial court found that Crank had knowingly and voluntarily fled the jurisdiction to avoid trial, Crank was tried in absentia. On March 12, 1981, the jury found Crank guilty on both battery counts. The following day, the jury determined Crank to be an habitual offender.
On June 29, 1981, the trial court sentenced Crank in absentia after finding that he knowingly and voluntarily waived his right to be present at sentencing. Crank received two concurrent eight-year terms of imprisonment on the battery counts and a thirty-year sentence on the habitual criminal count which was to run consecutively to the sentences imposed for the battery convictions. The trial court determined that Crank had waived his right to file a motion to correct error and effect a direct appeal due to his voluntary and continued absence from the jurisdiction. Crank was apprehended in Arizona in February, 1982. He was returned to Indiana and, on April 24, 1984, he filed his petition for post-conviction relief contending that because he was improperly tried and sentenced in absentia, the trial court erred in determining that he waived his right to file a motion to correct error, thus precluding direct appellate review of alleged errors which occurred at trial. 5 Following an evidentiary hearing, the trial court denied Crank's petition on August 1, 1985.
Crank now appeals.
We need address only the following issues:
1. Did the trial court err in trying Crank in absentia?
2. Did the trial court err in sentencing Crank in absentia?
3. Did the trial court err in determining that Crank waived his right to effect a direct appeal, thus precluding direct appellate review of alleged trial errors?
4. Did the trial court err in sentencing Crank when it failed to specify which felony conviction was to be enhanced as a result of the habitual offender determination?
ISSUE ONE--Did the trial court err in trying Crank in absentia?
PARTIES' CONTENTIONS--Crank asserts that the trial in absentia violated his common law and statutory right to be present at trial. Crank also contends there was insufficient evidence to support the trial court's finding that Crank had voluntarily absented himself from trial.
The State maintains that the trial court acted within its discretion in ordering the trial to proceed because Crank voluntarily and knowingly waived his right to be present.
CONCLUSION--The trial court did not err in conducting trial in Crank's absence.
Although a criminal defendant has a right to be present at trial, Fennell v. State (1986), Ind., 492 N.E.2d 297; U.S. CONST. amend. VI; Ind. CONST. art. I, Sec. 13, trial dates are not scheduled solely for the convenience of the defendant. Fennell, supra. When a defendant fails to appear for trial, the trial court may conclude that the defendant's absence is knowing and voluntary and proceed with the trial when there is evidence that the defendant knew of his scheduled trial date. Blatz v. State (1985), Ind., 486 N.E.2d 990; Bullock v. State (1983), Ind., 451 N.E.2d 646. As we recognized in Brown v. State (1979), 181 Ind.App. 102, 390 N.E.2d 1058, the best evidence of this knowledge is the defendant's presence in court on the day the matter is set for trial.
When Crank was in court on November 17, 1980, the trial court set a March 9, 1981 trial date. Record at 179. Crank also appeared for a pretrial hearing on February 19, 1981. At that hearing, the trial court overruled Crank's motion for a continuance, and again ordered Crank to appear on March 9 for trial. Record at 208. Crank had knowledge of his trial date and failed to appear. Therefore, he knowingly waived his right to appear at trial. See Blatz, supra. The trial court did not err in conducting trial in Crank's absence.
ISSUE TWO--Whether the trial court erred in sentencing Crank in absentia?
PARTIES' CONTENTIONS--Crank contends that the trial court erred when it sentenced Crank in absentia because a criminal defendant's presence at sentencing is required.
The State responds that it was proper for the trial court to sentence Crank in absentia because he waived his right to be present by his voluntary absence.
CONCLUSION--The trial court committed no error in sentencing Crank in absentia.
Our supreme court has held that a defendant has the right to be present at sentencing. Royal v. State (1979), 272 Ind. 151, 396 N.E.2d 390. When Crank was sentenced on June 29, 1981, IC 35-4.1-4-4(a) provided as follows:
6
Our supreme court has held that despite statutory and constitutional provisions which seemingly require the defendant's presence during criminal proceedings, those provisions may be waived "insofar as they are in favor of the accused." Bullock, supra, at 647. A number of jurisdictions have recognized that the accused's right to be present at sentencing may be waived by his voluntary absence. See generally 3 C. TORCIA, WHARTON'S CRIMINAL PROCEDURE Sec. 482 at 341-42 (12th ed. 1975); Annot., 6 A.L.R.2D 997 Secs. 1-3 (1949) and cases cited therein. A defendant's right to be present at trial is clearly waivable. Fennell, supra; Blatz, supra. We believe it would be anomalous to hold that a defendant may waive his right to be present at proceedings prior to sentencing but cannot waive that right with respect to sentencing. IC 35-38-1-4 does not preclude waiver of the right to be present at sentencing. The statute's purpose is to prevent the State from doing anything or undertaking any action that would preclude a defendant from exercising his right to be present. We hold that 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.
The trial court correctly determined that Crank voluntarily absented himself from the June 29, 1981 sentencing hearing. Before the trial court pronounced sentence, it heard evidence regarding Crank's absence. Terry Robbins (Robbins) testified that he wrote Crank's surety bond on December 18, 1980. Following Crank's failure to appear at trial, Robbins contacted police and talked with Crank's parents who were listed as sureties on the bond. Despite Robbins's efforts, he was unable to locate Crank. Lafayette Police Department Detective Daniel Eberle (Eberle) testified that the police department had conducted an extensive search for Crank. The investigation revealed that Crank rented a truck in Lafayette in early-May, 1981, and drove to Merrillville, Indiana. Eberle also learned that Crank had been in Oklahoma in mid-May, 1981. When Crank was apprehended on February 10, 1982, he told Eberle that he left because he felt he would not receive a fair trial.
The evidence clearly demonstrated that the very reason Crank was absent at trial and sentencing was because of his desire to avoid the court proceedings. The trial court properly determined that Crank waived his right to be present at sentencing and therefore did not err in sentencing him in absentia.
ISSUE THREE--Did the trial court err in determining that Crank waived his right to effect a direct appeal, thus precluding appellate review of alleged trial errors?
PARTIES' CONTENTIONS--Crank argues that since he should not have been sentenced in absentia, the trial court erred in concluding that Crank had waived his right to a direct appeal.
The State responds that this ruling was correct since Crank voluntarily absented himself from the jurisdiction of the court.
CONCLUSION--The trial court correctly determined that Crank waived his right to take a direct appeal, thus precluding appellate review of alleged trial errors.
Our supreme court has held that when a defendant voluntarily absents himself from the trial court's jurisdiction during the time period designated for filing a motion to correct errors, the defendant waives his right to file the motion to correct errors and consequently waives his right to perfect his appeal for appellate review. Skolnick v. State (1981), 275 Ind. 461, 417 N.E.2d 1103. Ind. Rules of Procedure Criminal Rule 16 provides that in all criminal cases a defendant shall have sixty days from the date of sentencing to file a motion to correct errors. Because Crank was properly sentenced on June 19, 1981, the sixty-day...
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