970 N.E.2d 762
Ind. Ct. App.2012Background
- Hawkins charged Jan 14, 2011 with two counts of Class C felony non-support of a dependent child; resident of North Carolina.
- Public defender appointed April 28, 2011; trial date set for Nov 7, 2011 with warning he would be tried in his absence.
- Attorney for Hawkins moved to withdraw Oct 10, 2011; hearing held Oct 19 and reset for Oct 26; Hawkins ordered to appear.
- Hawkins failed to appear at Oct 26 hearing; public defender withdrawal granted and warrant issued; Hawkins not notified withdrawal was granted.
- Nov 7, 2011 jury trial conducted in Hawkins’s absence; verdict guilty on both counts; Dec 7, 2011 sentencing via videoconference.
- Trial court sentenced four years per count, consecutive but suspended and to be served through Elkhart County Community Corrections; remanded to reduce one Class C to Class D on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of trial in absentia and without counsel | Hawkins’s absence and lack of notice violated due process | Waiver of counsel and notice supported due process compliance | No due process violation; waiver of counsel valid; trial in absentia permissible |
| Notice of withdrawal of counsel | Defendant had notice counsel could be withdrawn if he failed to appear | No explicit notice that withdrawal was granted; due process issue | Not a due process error; notice adequate under circumstances |
| Waiver of right to counsel | Hawkins knowingly waived right by not appearing and not seeking new counsel | Waiver was not clearly knowing/voluntary given circumstances | Hawkins knowingly, intelligently, and voluntarily waived counsel; no reversible error (Jackson framework applied) |
| Sentencing via videoconference | Code requires physical presence for sentencing | No objection preserved; non-issue | Claim waived by contemporaneous objection rule |
| Consecutive sentences and double Class C convictions | Consecutive sentences appropriate given arrears and history | Consecutive sentence proper but two Class C convictions improper | Remand to revoke one Class C to Class D; impose advisory consecutive sentence; aggregate five and one-half years |
Key Cases Cited
- Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (due process notice requires notice reasonably calculated to apprise interested parties)
- Jackson v. State, 868 N.E.2d 494 (Ind.2007) (waiver of right to counsel when absence supports knowing, intelligent waiver)
- Anglemyer v. State, 868 N.E.2d 482 (Ind.2007) (necessity of reasoned sentencing with aggravating/mitigating factors)
- Poynter v. State, 749 N.E.2d 1122 (Ind.2001) (waiver/absence considerations in counsel context)
- Sanjari v. State, 961 N.E.2d 1005 (Ind.2012) (aggregate arrearage limitations for multiple-child non-support convictions)
- Purifoy v. State, 821 N.E.2d 409 (Ind.Ct.App.2005) (contemporaneous objection rule governs sentencing objections)
- Johnson v. Zerbst, 304 U.S. 458 (U.S. 1938) (presumption against waiver of counsel)
- Williams v. State, 891 N.E.2d 621 (Ind.Ct.App.2008) (consecutive vs. concurrent sentences standard of review)
- Hampton v. State, 873 N.E.2d 1074 (Ind.Ct.App.2007) (one aggravating factor can support consecutive sentences)