Sams v. State

• Decision Date: 07 March 2012
• Docket Number: No. 89A05-1108-CR-403,89A05-1108-CR-403
• Parties: CLINTON E. SAMS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

CLINTON E. SAMS, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 89A05-1108-CR-403

COURT OF APPEALS OF INDIANA

March 7, 2012

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:

E. THOMAS KEMP

Richmond, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

GEORGE P. SHERMAN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE WAYNE SUPERIOR COURT

The Honorable Charles K. Todd Jr., Judge

Cause No. 89D01-1002-FB-3

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge Appellant-Defendant Clinton E. Sams appeals his conviction for Class B felony Dealing in a Controlled Substance¹ and the determination that he is a Habitual Substance Offender.² Sams raises numerous issues for appeal which we restate as:

I. whether the trial court erred in allowing the State to belatedly amend the charging information to include a habitual substance offender count;

II. whether the deputy prosecutor committed prosecutorial misconduct by making certain statements in the presence of the jury; and

III. whether the trial court committed fundamental error by questioning defense counsel regarding Sams's ability to participate at trial.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 3, 2009, Sams sold pills to a confidential informant who was working with the Wayne County Sheriff's Department. The transaction was recorded with an audio recording device and a video camera. Laboratory testing showed that the pills were hydrocodone tablets, a schedule III controlled substance.

On February 1, 2010, the State charged Sams with Class B felony dealing in a schedule III controlled substance. On April 14, 2011, the State alleged that Sams was a habitual substance offender. Sams objected to the belated filing of the habitual substance offender count, and on May 17, 2011, the trial court conducted a hearing, at the conclusion of which it overruled Sams's objection. On June 21, 2011, Sams was convicted by a jury of Class B felony dealing in a controlled substance. Sams subsequently admitted that he was ahabitual substance offender. On July 19, 2011, the trial court imposed an aggregate eleven year sentence. This appeal follows.

DISCUSSION AND DECISION

I. Whether the Trial Court Erred in Allowing the State to Belatedly Amend the Charging Information to Include a Habitual Substance Offender Count

Sams contends that the trial court erred in allowing the State to belatedly amend the charging information to include a habitual substance offender count because the State failed to show good cause for the belated filing, and also because the State filed the count in vindictive retaliation for his decision to depose certain witnesses. Indiana Code section 35-34-1-5(e) (2009) provides as follows:

An amendment of an indictment or information to include a habitual offender charge under ... [Indiana Code section] 35-50-2-10 must be made not later than ten (10) days after the omnibus date. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial.

In the instant matter, the omnibus date was June 8, 2010. Prior to the omnibus date, the parties began engaging in plea negotiations. The plea negotiations continued up to approximately mid-April of 2011. On April 14, 2011, after it became clear that Sams would not agree to the terms of a then-offered plea agreement, the State amended the charging information to include a habitual substance offender count. Sams objected to the belated filing of the habitual substance offender count. The trial court heard arguments from the parties relating to the belatedly filed count. During this hearing, Sams argued that the State belatedly filed the habitual substance offender count without good cause in vindictiveretaliation for his decision to depose certain witnesses. The State rejected Sams's claim and argued that it did not file the belated habitual substance offender count at an earlier date because plea negotiations were ongoing. The State indicated that it filed the habitual substance offender count shortly after it learned that Sams would not plead guilty to the underlying charge.

The trial court determined that the State had shown good cause for the belated filing by proving that it had refrained from filing the habitual substance offender count because of the parties' then-ongoing plea negotiations.³ We review a trial court's finding of good cause for an abuse of discretion. Jackson v. State, 938 N.E.2d 29, 39 (Ind. Ct. App. 2010); Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004), trans. denied. "An abuse of discretion occurs 'only where the decision is clearly against the logic and effect of the facts and circumstances." Land, 802 N.E.2d at 53 (quoting Palmer v. State, 704 N.E.2d 124, 127 (Ind. 1999)).

In the instant matter, the trial court determined that the State demonstrated good cause for the delay in filing the habitual substance offender count because of the ongoing plea negotiations, and Sams does not dispute the State's claim that it filed the habitual substance offender count shortly after plea negotiations ended. Accordingly, we cannot conclude that the trial court abused its discretion by finding good cause in this case. See Johnican v. State, 804 N.E.2d 211, 215 (Ind. Ct. App. 2004) (providing that the trial court did not abuse itsdiscretion in determining that the State demonstrated good cause for belatedly filing a habitual offender count when the State had refrained from filing the count due to the parties' ongoing plea negotiations); Land, 802 N.E.2d at 53 (providing that the trial court acted within its discretion in determining that the State demonstrated good cause for the belated filing of the habitual offender count in light of the parties' ongoing plea negotiations).

Sams also argues that the trial court erred in allowing the State to belatedly file the habitual substance offender count because it was filed in vindictive retaliation for his decision to depose certain witnesses. In making this claim, Sams argues that the deputy prosecutor indicated that she would file the habitual substance offender count if "the depositions went forward." Appellant's Br. p. 8. However, the deputy prosecutor's full statement regarding the decision as to whether the habitual substance offender count would be filed reads as follows:

Subsequently, [Defense Counsel] was advised that Mr. Sams did, in fact, qualify as habitual substance offender, however, if he signed that existing plea agreement, it would not be filed. We had a few pre-trials, each time that was discussed and then depositions were to be set in this case and at that time, I advised [Defense Cousnel] that if the depositions went forward, I'd be filing the Habitual Substance Offender if the plea was not signed.

Tr. pp. 19-20 (emphases added). In reading this statement in its entirety, it is clear that the deputy prosecutor informed counsel that the habitual substance offender count would be filed if Sams did not accept the existing plea offer, not if he chose to depose certain witnesses. Accordingly, we conclude, as was found by the trial court, that, despite Sams's claim to the contrary, the State did not file the belated habitual substance offender allegation in retaliationfor his decision to depose certain witnesses, but rather because plea negotiations failed.

The Indiana Supreme Court has held that "amending an information to include an habitual offender count after the failure of plea negotiations is a justifiable exploitation of legitimate bargaining leverage and does not constitute prosecutorial vindictiveness." Vaxter v. State, 508 N.E.2d 809, 812 (Ind. 1987) (citing State v. Hicks, 453 N.E.2d 1014 (Ind. 1983); Baker v. State, 425 N.E.2d 98, 103 (Ind. 1981)). Thus, in light of this Indiana Supreme Court precedent, we further conclude that the belated filing of the habitual substance offender count does not constitute prosecutorial vindictiveness. As such, trial court did not err in allowing the State to file the belated habitual substance offender count after the parties' plea negations failed.

II. Whether the Deputy Prosecutor Committed Prosecutorial Misconduct by Making Certain Statements in the Presence of the Jury

Sams next contends that the deputy prosecutor committed prosecutorial misconduct by making certain statements in the presence of the jury. Specifically, Sams claims that the deputy prosecutor committed prosecutorial misconduct by (A) discussing sentencing options during voir dire; (B) making disparaging remarks about defense counsel during voir dire; and (C) commenting on defense counsel's failure to deny the charges during the State's rebuttal to defense counsel's closing argument.

When reviewing a claim of prosecutorial misconduct, we must first consider whether the prosecutor engaged in misconduct. Williams v. State, 724 N.E.2d 1070, 1080 (Ind. 2000). We must then consider whether the alleged misconduct placed [Sams] in a position of grave peril to which he should not have been subjected. Id. In judging the propriety of the prosecutor's remarks, we consider the statement in the context of the argument as [a] whole. Hollowell v. State, 707 N.E.2d 1014, 1024 (Ind. Ct. App.1999)....

When an improper argument is alleged to have been made, the correct procedure is to request the trial court to admonish the jury. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind. 2004). If the party is not satisfied with the admonishment, then he or she should move for mistrial. Id. Failure to request an admonishment or to move for mistrial results in waiver. Id. Where a claim of prosecutorial misconduct has not been properly preserved, our standard of review is different from that of a properly preserved claim. More

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