Herran v. State

• Court: Indiana Appellate Court
• Writing for the Court: Riley, Judge.
• Decision Date: 27 June 2019
• Docket Number: Court of Appeals Case No. 18A-CR-3131
• Citation: Herran v. State, Court of Appeals Case No. 18A-CR-3131 (Ind. App. Jun 27, 2019)
• Parties: Darlene Kay Herran, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

Darlene Kay Herran, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-3131

COURT OF APPEALS OF INDIANA

June 27, 2019

MEMORANDUM DECISION

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

Dale W. Arnett

Winchester, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

Appeal from the Henry Circuit Court

The Honorable Kit C. Dean Crane, Judge

Trial Court Cause No. 33C02-1802-F5-9

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Darlene Herran (Herran), appeals the trial court's Home Detention Order and Agreement and its Order to Pay Transcription Costs following her guilty plea to operating a motor vehicle after forfeiture for life, a Level 5 felony, Ind. Code § 9-30-10-17(a)(1).

[2] We affirm.

ISSUES

[3] Herran presents three issues on appeal, which we restate as:

(1) Whether the trial court improperly ordered that it may assess the cost of the preparation of the transcript to Appellate Counsel;

(2) Whether the trial court's Home Detention Order and Agreement is subject to reversal for failing to comply with statutory notice requirements set out for electronic monitoring devices; and

(3) Whether the trial court abused its discretion when it imposed a condition of Herran's home detention that effectively prohibited her from living with her husband.

FACTS AND PROCEDURAL HISTORY

[4] On February 22, 2018, Herran was observed driving north on 18^th Street in New Castle, Indiana, by an officer of the New Castle Police Department who recognized her as a lifetime habitual traffic offender. After confirming that Herran's driver's license was subject to an indefinite suspension, the officerperformed a traffic stop and subsequently arrested Herran. On February 23, 2018, the State filed an Information, charging Herran with operating a motor vehicle after forfeiture for life, a Level 5 felony. On February 23, 2018, the trial court found Herran to be indigent and appointed a public defender to represent her.

[5] On November 29, 2018, pursuant to a plea agreement with the State, Herran pleaded guilty to Level 5 felony operating a motor vehicle after forfeiture for life. According to the terms of the plea agreement, Herran would receive a sentence of five years, with three years to be executed on home detention and two years suspended to probation. A pending charge of conversion in another criminal matter was also dismissed. The plea agreement further provided that Herran could seek a modification of her placement after completing one and one-half years of her home detention. Prior to the entry of her guilty plea, the trial court reviewed Herran's constitutional trial rights, which the trial court found she understood and waived voluntarily. Herran affirmed to the trial court that she had read the terms of her plea agreement, discussed it with her attorney, signed it, and understood that she could not request any modification of placement on home detention for 401 days. The trial court found that Herran knowingly and voluntarily pleaded guilty and that it should accept the plea agreement and be bound by its terms. The trial court accepted the plea agreement and sentenced Herran according to its terms. In its written sentencing order, the trial court granted the withdrawal of Herran's public defender.

[6] On November 29, 2018, the trial court also entered its Home Detention Order and Agreement which enumerated the conditions of Herran's home detention. The written standard conditions of Herran's home detention provided that "[n]o person convicted of a felony will be allowed to live at or visit your residence." (Appellant's App. Vol. II, p. 47). Directly above the signature line of the Home Detention Order and Agreement was the following averment:

I have read the above terms and conditions of home detention and had those terms and conditions fully explained to me. I have received a copy of said terms. I agree to comply with all terms and conditions specified.

(Appellant's App. Vol. II, p. 49). On November 29, 2018, Herran and Herran's public defender signed the Home Detention Order and Agreement. Home detention was scheduled to commence on or before December 3, 2018. The trial court's Probation Order and Agreement, which Herran also executed on November 29, 2018, did not contain any prohibition on her living with a felon.

[7] On December 7, 2018, Herran filed an unverified pro se motion with the trial court seeking reconsideration of the conditions of her home detention to allow her to live with her husband, who she stated had been on parole since July 2018. On December 18, 2018, the trial court denied Herran's motion. On December 18, 2018, Appellate Counsel filed his appearance along with Herran's unverified motion seeking to allow her to live with her husband while on home detention. Herran claimed that the condition of her home detention prohibiting her from living with a felon constituted an infringement upon herright to "society" with her husband and was an undue economic hardship. (Appellant's App. Vol. II, p. 10). On December 20, 2018, the trial court denied Herran's second motion without a hearing and without entering any findings of fact or conclusions of law.

[8] Herran filed a notice of appeal on December 31, 2018, in which Appellate Counsel was identified as "pro bono" counsel. (Appellant's App. Vol. II, p. 57). In her notice of appeal, Herran requested that the Henry Circuit Court 2 Reporter prepare a transcript of the November 29, 2018, sentencing hearing and furnish it to Appellate Counsel. Herran attached to her notice of appeal a copy of the chronological case summary entry dated February 27, 2018, noting that the trial court had found her indigent and had appointed her a public defender for purposes of addressing the operating while forfeited for life charge.

[9] On January 11, 2019, we granted a motion by Herran to proceed in forma pauperis and expressly relieved her of the obligation to pay the filing fee for her appeal. On January 24, 2019, the Clerk of the Henry Circuit Court 2 filed a notice indicating that the transcript had not yet been completed.¹ On January 25, 2019, the trial court entered its Order to Pay Transcription Costs as follows:

[Appellate Counsel] contacted court staff to request the preparation of a transcript. Until just recently and after the transcript had already been completed, [Appellate Counsel] did not advise the [c]ourt that he expected that the transcript beprepared at no cost to [Herran]. In fact, the [c]ourt has never received any pleading from [Appellate Counsel] requesting such a finding, nor have there been any pleadings filed asserting indigency. Due to high volume, the [c]ourt uses outside services to prepare transcripts. Accordingly, the [c]ourt FINDS and ORDERS as follows:

The Henry County Auditor shall pay . . . the sum of $94.50 as costs of transcript service to [the ] Court Reporter . . . [Appellate Counsel] however, is put on notice that the [c]ourt may assess such costs against [Appellate Counsel].

(Appellant's App. Vol. II, p. 61). On January 31, 2019, Herran filed a motion to correct error requesting that the trial court not assess the cost of the transcript preparation to Appellate Counsel. The trial court did not rule on the motion.

[10] Herran now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Costs of Transcript

[11] Herran first contends that the trial court erroneously ordered that Appellate Counsel may be assessed the costs of the preparation of the transcript. The State counters that the issue is not ripe for appeal because the trial court's Order to Pay Transcription Costs did not, in fact, assess those costs to Appellate Counsel and merely warned that it may do so. The concept of ripeness refers to the degree that the defined issues in a case are based on actual facts, not abstract possibilities, and are capable of being decided on an adequately developed record. Buck v. Grube, 833 N.E.2d 110, 118 n.7 (Ind. Ct. App. 2005). In rulingon ripeness, we consider the fitness of the issue for judicial decision as well as the hardship to the parties of withholding a decision on the merits. Id.

[12] We agree with the State that this issue is not ripe for appeal. The transcript was paid for with public funds, and this appeal has proceeded in due course. The trial court did not yet order Appellate Counsel to pay the costs of the preparation of the transcript. Neither Herran nor Appellate Counsel have sustained any injury, and, therefore, we decline to address the issue.²

II. Notice Requirement for Electronic Surveillance

[13] Herran next briefly argues that the trial court failed to adequately notify her of the use of an electronic monitoring device as part of her home detention. She therefore asks us to determine "that any conditions of electronic monitoring in this matter be declared null and void." (Appellant's Br. p. 9). The terms of Herran's home detention order and agreement provided that she "shall ensure compliance with this [c]ourt's order on home detention by wearing anelectronic non-removable anklet twenty-four (24) hours a day during the period of detention[.]" (Appellant's App. Vol. II, p. 47).

[14] Herran directs us to Indiana Code section 35-38-2.5-11, which provides that

[b]efore entering an order for home detention that requires the use of a monitoring device described in section 3.3 of this chapter the court shall inform the offender and other persons residing in the home of the nature and extent of electronic surveillance provided by the monitoring device in the home.

Assuming, without deciding, that she preserved this claim, section 35-38-2.5-11 applies to Herran's electronic monitoring device, and the...