FILED
MEMORANDUM DECISION
08/28/2017, 10:00 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Indiana Supreme Court
Memorandum Decision shall not be regarded as Court of Appeals
and Tax Court
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 ATTORNEYS FOR APPELLEE
Troy D. Warner Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Wayne Martin, August 28, 2017
Appellant-Defendant, Court of Appeals Case No.
71A04-1612-CR-2945
v. Appeal from the St. Joseph Superior
Court.
The Honorable John M. Marnocha,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
71D02-1605-F6-407
Barteau, Senior Judge
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Statement of the Case
[1] David Wayne Martin appeals from the trial court’s order sentencing him in
1
absentia on his guilty plea of theft, a Level 6 felony, claiming that he was
denied the opportunity to explain to the trial court the reason for his absence
from his sentencing hearing, and contending that he did not voluntarily waive
his right to attend. We affirm.
Issue
[2] Martin raises two issues which we combine and state as the following one:
whether the trial court committed reversible error by proceeding to sentence
Martin in his absence.
Facts and Procedural History
[3] On December 3, 2015, Martin stole a cell phone from Midwest Cellular in St.
Joseph County. At the time he committed that theft, he had a prior conviction
for theft in Hendricks County. On March 21, 2016, Martin stole a Samsung
Note 5 from an AT&T store. At the time he committed the theft, he had a prior
theft conviction in St. Joseph County.
[4] On September 13, 2016, a hearing was scheduled on a motion to enter a plea
pursuant to a plea agreement. The chronological case summary reflects that
although the State and Martin’s counsel appeared for the hearing, Martin
1
Ind. Code § 35-43-4-2 (2014).
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refused transport for the hearing. The matter was rescheduled for October 4,
2016. The State, Martin, and Martin’s counsel all appeared for the October 4
hearing at which time Martin acknowledged the terms of the agreement and the
trial court took the plea under advisement. Pursuant to the terms of the plea
agreement, Martin’s sentence was to be left open to argument with the
maximum amount of executed time to be capped at thirty months. The trial
court announced that the sentencing hearing would take place on November 2,
2016.
[5] Martin was not present at the hearing on November 2, 2016. The following is
the exchange between the trial court and Martin’s counsel:
THE COURT: These are Cause Nos. 16-F6-13, 16-F6-407, and
15-CM-3051, State versus David Martin.
My understanding is that Mr. Martin refused to come over today.
The comment he made was that he’d rather go to the dentist.
There seems to be a rash of people refusing to come over to court
from the jail. And I’m quite honestly, tired of it.
I believe that that is a voluntary absence from court, so the Court
is going to proceed to sentencing in Mr. Martin’s absence.
Mr. Rose?
MR. ROSE: Thank you, Judge.
I would simply make a Record of the defendant’s objection to
proceed in absentia with sentencing.
Sentencing Tr. p. 3. Martin’s counsel did not move for a continuance of the
sentencing hearing. Instead, he and the State proceeded with arguments on the
issue of sentencing.
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[6] The trial court accepted the plea agreement, entered judgment of conviction,
and sentenced Martin to consecutive sentences totaling thirty months. The trial
court allowed Martin to file a belated notice of appeal and this appeal ensued.
Discussion and Decision
[7] Martin contends that the trial court committed reversible error by denying him
the right to be present at his sentencing hearing and by failing to give him the
opportunity to explain his absence from the sentencing hearing.
[8] We acknowledge the longstanding principle that a defendant has the right to be
present at sentencing. Gillespie v. State, 634 N.E.2d 862, 863 (Ind. Ct. App.
1994), trans. denied. Indeed, Indiana Code section 35-38-1-4(a) (1983) provides
that, “The defendant must be personally present at the time sentence is
pronounced. If the defendant is not personally present when sentence is to be
pronounced, the court may issue a warrant for his arrest.” A defendant may
waive the right to be present at his sentencing hearing if it is shown that his
absence is knowing and voluntary. Gillespie, 634 N.E.2d at 863.
[9] Here, the record reflects that Martin was present in court with counsel when the
date of his sentencing hearing was announced. Therefore, the record reflects
that his absence from the hearing was knowing and voluntary. To the extent he
argues that he was entitled to the opportunity to provide an explanation to the
court, we note the cases he cites involve defendants who were tried in absentia.
Further, Martin did not request a continuance of the sentencing hearing, and he
had refused transport on at least one prior occasion.
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[10] The trial court stated on the record that Martin had expressed the desire to visit
a dentist instead of attending his hearing. There is no admissible evidence to
rebut the trial court’s finding that Martin’s absence from his sentencing hearing
was both knowing and voluntary.
Conclusion
[11] In light of the foregoing, we affirm the trial court’s decision.
[12] Affirmed.
Mathias, J., and Bradford, J., concur.
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