ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL E. CAUDILL KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
JANET PARSANKO
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
HOWARD GARRETT, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-9912-CR-694
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 20
The Honorable Michael Jensen, Magistrate
Cause No. 49G20-9812-CF-189275
ON DIRECT APPEAL
November 2, 2000
RUCKER, Justice
A jury convicted Howard Garrett of possession of cocaine and dealing in
cocaine and also adjudged him a habitual offender. The trial court
sentenced Garrett to fifty years for dealing in cocaine enhanced by thirty
years for being a habitual offender. The court did not sentence Garrett
for possession of cocaine. In this direct appeal, Garrett raises two
issues for our review which we rephrase as follows: (1) was Garrett tried
before an impartial judge; and (2) did defense counsel’s stipulation to the
dates of Garrett’s prior convictions constitute a guilty plea to the
habitual offender charge? We affirm.
Facts
The record reveals that on December 2, 1998, Garrett sold .09 grams
of cocaine to a confidential informant working for the Indianapolis Police
Department. The informant wore a wire transmitter, and the transaction was
recorded on audiotape. The State charged Garrett with possession of
cocaine, dealing in cocaine, and being a habitual offender. The State
offered Garrett a plea agreement that allowed him to plead guilty to a
lesser dealing charge and receive a ten-year sentence enhanced by an
additional ten years for the habitual offender count. Before trial the
court discussed the offer with Garrett, but Garrett declined and proceeded
to trial. A jury convicted Garrett as charged, and the trial court imposed
a total sentence of eighty years. This appeal followed. Additional facts
are set forth below where relevant.
Discussion
I.
Garrett contends that he was denied a fair trial under the state and
federal constitutions because the trial judge failed to remain impartial.
His argument focuses on the trial court’s pre-trial statements in
discussing the State’s plea offer. The record shows that on the morning of
Garrett’s scheduled trial, the trial judge asked the State if it had made a
plea offer to Garrett. The State responded that it had offered Garrett a
guilty plea to a lesser dealing offense, as a Class B felony, with a ten-
year sentence enhanced by an additional ten years for the habitual offender
charge. Garrett told the court that he had rejected the offer. The court
then questioned Garrett extensively about whether he understood the nature
of the offer and the sentence he could receive if he was convicted as
charged. After the court explained that Garrett would likely get the
maximum eighty-year sentence, Garrett initially indicated that he would
accept the plea. However, after reviewing a written draft of the State’s
offer, he declined, and the case proceeded to trial.[1]
Garrett contends that the trial court displayed its bias when, during
the pre-trial discussion, the judge threatened to impose the maximum
sentence if Garrett proceeded to trial and was convicted. A threat Garrett
maintains the court carried out when it ordered him to serve the maximum
sentence following his conviction. Garrett complains also that the court’s
conduct “undermined the fundamental fairness of the proceedings by
ridiculing the defense, by intimidating Mr. Garrett and pressuring him to
accept the plea offer . . . .” Brief of Appellant at 11. Thus, Garrett
essentially argues that the judge punished him for exercising his right to
trial. See Hill v. State, 499 N.E.2d 1103, 1107 (Ind. 1986) (“It is well
settled that to punish a person for exercising a constitutional right is ‘a
due process violation of the most basic sort. . . . Moreover, it is
constitutionally impermissible for a trial court to impose a more severe
sentence because the defendant has chosen to stand trial rather than plead
guilty.’”) (quoting Walker v. State, 454 N.E.2d 425, 429 (Ind. Ct. App.
1983)).
We do not condone the trial judge’s inquiry and comments regarding
Garrett’s defense or the depth of the court’s inquiry regarding Garrett’s
decision to go to trial.[2] Declaring to Garrett “I’m telling you, if it’s
me and you get found guilty with this record you’ll get the [maximum]
eighty years” was clearly inappropriate. There was at least the
possibility that hearing this statement from the judge would carry more
weight with Garrett than the same message when undoubtedly delivered by
Garrett’s counsel. Garrett resisted this additional improper pressure, but
others may not. It may seem somewhat artificial to prevent a trial judge
from making such direct predictions concerning a sentence that will be
imposed, as opposed to outlining the parameters of permissible sentences.
Nonetheless such conduct is not defensible in the name of candor.
Having said that, however, we must conclude that Garrett still cannot
prevail. Where a defendant fails to object or otherwise challenge a trial
judge’s remarks, any alleged error is waived on appeal. Cornett v. State,
450 N.E.2d 498, 505 (Ind. 1983) (holding that a defendant who failed to
object to trial judge’s comments and move for a mistrial waived review of
claim that the judge failed to maintain impartiality); see also Smith v.
State, 558 N.E.2d 841, 843 (Ind. Ct. App. 1990) (finding that defendant
waived review of his claim that he was entitled to a change of judge where
he failed to argue the merits of his claim during a hearing before the
trial court). Here, our examination of the record shows that Garrett did
not object to the trial court’s pre-trial comments nor did Garrett seek a
change of judge following the discussion regarding the plea offer. This
issue is thus waived for review. We also note that the record supports
Garrett’s eighty-year sentence. Garrett offered no mitigating evidence,
and before pronouncing sentence, the trial court reviewed the pre-sentence
investigation report and cited in detail Garrett’s lengthy criminal
history. Relying on Garrett’s criminal history and the lack of mitigating
evidence, the trial court enhanced Garrett’s sentence. The court’s
findings regarding aggravating and mitigating circumstances are supported
by the record and in turn support Garrett’s sentence.[3]
II.
Garrett next contends that his adjudication as a habitual offender
was improper. During the habitual offender phase of the trial, Garrett’s
counsel stipulated to the existence of the prior offenses charged by the
State. Garrett argues that the stipulation was tantamount to a guilty
plea, and the trial court’s acceptance of the stipulation without advising
him on various rights which would be waived by pleading guilty was
erroneous. See generally Boykin v. Alabama, 395 U.S. 238 (1969); Ind.
Code § 35-35-1-2(a).
Garrett cites no authority to support his claim that a factual
stipulation can amount to a guilty plea. As we observed in Whatley v.
State, 685 N.E.2d 48 (Ind. 1997) “a plea of guilty is a discrete judicial
event that not only admits factual matters but also embodies significant
procedural consequences.” Id. at 49. A stipulation that seeks to
establish certain facts does not constitute a guilty plea. Id. (finding
that a stipulation as to the existence of a defendant’s prior conviction
used to enhance a handgun offense did not amount to a guilty plea). Such
is the case here. The stipulation at issue only acknowledged that Garrett
had been convicted of the prior offenses and sentenced on certain dates.
Thus, it established only the fact that the prior offenses existed and did
not amount to a guilty plea.
Our court of appeals has reached the same conclusion in a nearly
identical case. In Gann v. State, 570 N.E.2d 976 (Ind. Ct. App. 1991), the
parties stipulated during the habitual offender phase that “the State had
true and accurate copies of the prior judgments of conviction, that these
convictions were felonies, that the sentences imposed were reflected by the
documents, and that the fingerprints provided were in fact Gann’s
fingerprints.” Id. at 978. As Garrett argues here, the defendant in Gann
contended that the stipulation amounted to a guilty plea that required the
trial court to question him regarding his rights and consent to the
stipulation. Id. at 979.
In rejecting the defendant’s claim, the court of appeals stated:
In this case, trial counsel did not stipulate that Gann was a habitual
offender or that the evidence stipulated was sufficient to determine
Gann was an habitual offender, but rather stipulated as to the
evidence underlying the status. The State had witnesses in court, and
was prepared to introduce the exhibits. Trial counsel presented a
closing argument, and the evidence was
submitted to the jury for its consideration. The jury deliberated for
an hour to an hour and a half before reaching its decision. The
stipulation in this case was not the equivalent of a guilty plea . . .
.
Id. We agree with the court of appeals’ analysis in Gann and believe it
applies in this case. Contrary to Garrett’s claim, his counsel did not
stipulate that Garrett was a habitual offender, only to some of the facts
underlying the status. As the State points out, the stipulation did not
assent to all of the elements of the habitual offender charge. The State
still had the burden at trial of proving that the offenses were unrelated.
See Ind. Code § 35-50-2-8(d) (“A person is a habitual offender if the jury
(if the hearing is by jury) or the court (if the hearing is to the court
alone) finds that the state has proved beyond a reasonable doubt that the
person had accumulated two (2) prior unrelated felony convictions.”).
Moreover, both the State and Garrett’s counsel presented opening and
closing argument during the habitual offender phase, and the case was
submitted to the jury for its consideration. The stipulation was not the
equivalent of a guilty plea and did not require the trial court to advise
Garrett on various rights which would be waived by pleading guilty.
Conclusion
Judgment affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] The pre-trial discussion that took place was as follows:
THE COURT: Has the State made an offer to Mr. Garrett?
PROSECUTOR: Yes, we have, Judge. The final offer we made was to the
lesser included B felony of dealing. Ten years on that and ten years
on the habitual offender count.
THE COURT: So a total of twenty years?
PROSECUTOR: Yes, and we dismissed the possession.
THE COURT: You understand the offer Mr. Garrett?
GARRETT: Yes, I do.
THE COURT: You know what you’re looking at if you get convicted at
trial?
GARRETT: Yes.
THE COURT: What’s that?
GARRETT: I think eighty.
THE COURT: Fifty to eighty years.
GARRETT: Fifty to eighty.
THE COURT: It’s nonsuspendable. What do you want to do here?
GARRETT: I was gonna take the jury.
THE COURT: You understand that if you take the deal . . . I
understand that you have ten years on a parole violation too pending?
GARRETT: Yes, sir.
THE COURT: So, if you get that, plus the twenty here, you’ll get
fifteen years. What, you’re forty-one, you’ll be fifty-six when you
got out. If you get convicted, you get the ten years on that, plus
the eighty years on this. That’s ninety years, it will be forty-five
years you’ll have to serve if you behave yourself. You’ll be ninety-
six, if you’re still alive, when you get out. You understand that?
GARRETT: Yes.
THE COURT: You sure about what you want to do here?
GARRETT: INAUDIBLE.
DEFENSE COUNSEL: You don’t have to necessarily get the whole ten.
GARRETT: That’s the most I can get?
DEFENSE COUNSEL: Right.
THE COURT: That’s the most you can get on that. I don’t know what
they’ll do. I have no control over that, none of us have any control
over that. The worse case scenario if you take the deal is an
additional real fifteen years.
DEFENSE COUNSEL: Judge, one of the things that Mr. Garrett has
mentioned to me is, one of the reasons why he might want to take this
to jury as opposed to plea it is that he believes that if he takes the
jury that he won’t be waiving his appeal rights. And perhaps on
appeal something could be done where he would get less than twenty
years. I have advised him that that’s not likely, but.
THE COURT: Sir if you get convicted of the A felony, the dealing . .
. the A felony dealing, and the habitual, the minimum possible
sentence that any Judge can give you is fifty years. That means I
have to find mitigating circumstances to get down to there.
Mitigating circumstances would be lack of criminal history, good work
experiences, good life experiences. Looking at your criminal history,
I haven’t counted up the numbers, but it fills up three or four pages.
It includes a death case of voluntary manslaughter, plus other crimes
of violence, handguns, robberies. I don’t know why you would think
any judge is gonna find mitigating circumstances when in your past
you’ve robbed people and you’ve killed people. Those are aggravating
circumstances, which means your sentence goes up from the minimum
fifty years up to as much as eighty. I’m telling you, if it’s me and
you get found guilty with this record you’ll get the eighty years.
You’ll have to serve at least forty of that before you get out,
regardless of what happens on your parole violation. Which means
you’d be at the least, you’re what, forty-one?
GARRETT: Forty-one now.
THE COURT: Than means you would be eighty-one years old when you got
out if you get convicted. If you take the deal, you could be out as
little as ten and no more than fifteen.
GARRETT: I um . . . do they have that typed up?
DEFENSE COUNSEL: Hum?
GARRETT: Do they have that typed up?
DEFENSE COUNSEL: Do they have it typed up, he can write it up right
now.
GARRETT: Write it up and let me read it.
DEFENSE COUNSEL: Can you write it up and let him read it?
THE COURT: Let him have a chance to read it.
R. at 100-03. After a brief recess, the discussion continued:
THE COURT: Mr. Garrett?
GARRETT: Yes, sir.
THE COURT: What are we doing here?
GARRETT: I’m going to accept the . . . I’m gonna sign the plea.
THE COURT: Okay, go ahead and sign it there, we’ll get copies made
and we’ll go through it. Mr. Garrett what are we doing?
GARRETT: I didn’t do all this.
THE COURT: You didn’t do it?
GARRETT: By me signing this, I’d be lying.
THE COURT: So, you want to go to trial today?
GARRETT: Yes, I’m going to trial. I’d be lying if I signed this. I
know I’m between a rock and a hard place.
THE COURT: You understand what the State’s evidence is gonna be?
GARRETT: Excuse me sir?
THE COURT: You understand what the State’s evidence is gonna be?
GARRETT: Yes.
THE COURT: There’s a confidential informant and a police officer
who’s gonna say that you did this and also say that when they arrested
you you had the money in your shoe . . . your sock?
GARRETT: Yes.
THE COURT: You don’t have to answer this, but what’s your defense
gonna be?
GARRETT: Excuse me?
THE COURT: You don’t have to tell us, you don’t have to say a word,
what’s your defense gonna be? That the money magically appeared in
your sock?
GARRETT: Excuse me?
THE COURT: What’s your defense? Did the money just kind of magically
appear in your sock, and you don’t know how it got there?
GARRETT: I put that money in my sock. That’s my money.
THE COURT: They’re gonna have a photocopy of that money that they had
copied before and after your arrest.
GARRETT: Yes.
DEFENSE COUNSEL: Actually Judge, the facts are that during the
transaction, uh . . . the person in the tape had to make change for a
twenty. It was actually marked beforehand, so it’s not the same buy
money. So, the money that was actually found in Mr. Garrett’s sock is
not marked. It is on tape however, that uh . . . change was made, the
transaction was fifteen dollars and that was the amount of money that
was found on Mr. Garrett. But, technically the money is not marked.
THE COURT: Okay. All right, so you want to go to trial?
GARRETT: Yes.
THE COURT: Take him back and get him dressed.
R. at 103-05. Thereafter, the trial commenced.
[2] In Stacks v. State, 175 Ind. App. 525, 372 N.E.2d 1201 (1978),
our court of appeals observed that judicial participation in plea
bargaining has been heavily criticized by courts and commentators. Id. at
535, 372 N.E.2d at 1208-09 (citing Note, Plea Bargaining and the
Transformation of the Criminal Process, 90 Harv. L. Rev. 564, 583-585 (Jan.
1977); United States v. Werker, 535 F.2d 198 (2d Cir. 1976); Pennsylvania
v. Evans, 252 A.2d 689 (Pa. 1969)).
[3] Garrett also contends that the court enhanced his sentence based
upon a prior robbery conviction when in fact Garrett had not been convicted
of robbery. Garrett points to a pre-trial comment wherein the judge
referred to Garrett’s criminal history and mentioned a robbery conviction.
Garrett was apparently charged with robbery four times but never convicted.
The record shows the trial judge’s comment came during the pre-trial
discussion when the judge had only cursorily reviewed Garrett’s criminal
history. The trial court’s sentencing statement makes clear however that
the judge did not enhance Garrett’s sentence based upon a robbery
conviction.