Albert B. Lucero, III v. State of Indiana (mem. dec.)
45A03-1603-CR-639
| Ind. Ct. App. | Nov 15, 2016Background
- Defendant Albert B. Lucero, III (father and sole guardian) was convicted by jury of Level 4 child molesting and Level 6 performing sexual conduct in the presence of a minor based on repeated sexual abuse of his daughter between ages 12–14.
- Charges arose from multiple incidents: fondling, masturbating in daughter’s presence, showing sexual photos, asking her to perform sexual acts, and encouraging sexualized dress.
- After conviction, Lucero (through counsel and personally) agreed to and admitted the factual basis for a habitual-offender enhancement (two prior unrelated felonies); the court accepted the admission and did not submit the enhancement to a jury.
- At sentencing Lucero repeatedly and loudly interrupted proceedings despite multiple warnings; the trial court removed him from the courtroom and completed sentencing in his absence (defense counsel remained).
- The trial court found no mitigators, several aggravators (abuse of trust, dishonesty/manipulation, criminal history), imposed 10 years (Count I) + 2 years (Count III) consecutively, and enhanced Count I by 14 years as a habitual offender, for an aggregate 26-year sentence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lucero) | Held |
|---|---|---|---|
| Removal from courtroom at sentencing | Court may remove disruptive defendant after warnings; proceeding may continue absent him | Removal violated Sixth Amendment/Article 1, §13 right to be present at sentencing | Removal was proper; repeated interruptions after warnings waived right to be present; no abuse of discretion |
| Habitual-offender admission | Lucero stipulated/admitted to two prior felonies and waived jury on enhancement; admission operated as guilty plea to enhancement | Admission was a mere stipulation, not a guilty plea; not knowing/voluntary | Admission constituted a guilty plea to habitual-offender enhancement; challenge must be by post-conviction relief, not direct appeal |
| Sentence appropriateness under Ind. App. R. 7(B) | Sentence reflects severity, abuse of position, criminal history and aggravators; within statutory range | Sentence is inappropriate given offense and character | Sentence is not inappropriate given the depravity toward his daughter, abuse of trust, and criminal history; affirm 26-year aggregate term |
Key Cases Cited
- Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015) (standard of review and waiver of right to be present after disruptive conduct)
- Campbell v. State, 732 N.E.2d 197 (Ind. Ct. App. 2000) (defendant may lose right to be present after warnings for disruptive behavior)
- Illinois v. Allen, 397 U.S. 337 (1970) (defendant can be removed for disorderly, disruptive, or disrespectful conduct)
- Tumulty v. State, 666 N.E.2d 394 (Ind. 1996) (guilty plea to habitual-offender enhancement cannot be challenged on direct appeal)
- Vanzandt v. State, 730 N.E.2d 721 (Ind. Ct. App. 2000) (admission to enhancement functions as guilty plea when defendant admits enhancement itself)
- Garrett v. State, 737 N.E.2d 388 (Ind. 2000) (stipulation to prior convictions does not alone equal guilty plea to habitual-offender enhancement)
- Daugherty v. State, 547 N.E.2d 1116 (Ind. Ct. App. 1989) (sufficient factual basis for guilty plea to habitual-offender charge where defendant admitted facts)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (appellate review under Rule 7(B) gives deference to trial court; purpose is to leaven outliers)
- Stephenson v. State, 29 N.E.3d 111 (Ind. 2015) (defendant must overcome deference with compelling evidence of positive character or mitigating nature of offense)