Case Information
*1 FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DEBORAH MARKISOHN GREGORY F. ZOELLER Mаrion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana
BRIAN REITZ Deputy Attorney General Indianapolis, Indiana IN THE
COURT OF APPEALS OF INDIANA
JAMES DENNING, )
)
Appellant-Defendant, )
) vs. ) No. 49A05-1208-CR-394
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. ) APPEAL FROM MARION SUPERIOR COURT The Honorable Grant W. Hawkins, Judge The Honorable Christina R. Klineman, Commissioner Cause No. 49G05-1203-FA-17112
July 18, 2013
OPINION - FOR PUBLICATION
MAY, Judge
James Denning was сonvicted after a bench trial of Class A felony attempted robbery [1] and being an habitual offender. [2] He raises two issues on appeal:
1. Whether the victim’s testimony was incredibly dubious; and 2. Whether Denning should have been convicted of battery resulting in serious bodily injury as a Class C felony instеad of attempted robbery as a Class A felony. [3]
As a preliminary matter, the State argues we do not have jurisdiction to consider Denning’s appeal because he filed his notice of appеal before the trial court decided the issue of restitution. We have jurisdiction, and we affirm.
FACTS AND PROCEDURAL HISTORY
On September 16, 2011, Denning and Derek Schaffer, who had been acquainted for about three months, went to a residence Shaffer was hoping to rent. Schaffer met with some prospective tenants, then he and Denning prepared to leave. As Schaffer checked to be sure the back door was locked, hе heard a loud pop, “felt pressure,” (Tr. at 94), then passed out. He woke up, felt blood on the back of his head, and realized he had been shot. He and Denning struggled over Denning’s gun, and Denning said “give me your monеy and get back on the ground.” ( . at 98.) During the struggle, Denning shot the wall. When he realized he was out of bullets he dropped the gun and fled.
*3 The trial court found Denning guilty of attempted robbery and being an habitual offender, and sentenced him to fifty years. At the sentencing hearing the State said “we are asking for . . . restitution to be determined at a hearing within 30 days or by agreement once the victim has provided me all of his medical bills.” ( Id . at 272.) There was no other discussion of restitution, nor was evidence heard on that topic. At the end of the hearing the court said: “What I will do is I will leave restitution open, have it reduced to a civil judgment if there is an agreement on it. If not, let me know and we’ll have a hearing.” ( . at 275.) The final written sentencing order did not mention restitution.
DISCUSSION AND DECISION
1. Jurisdiction
The State argues we do not have jurisdiction over this appeal “because the trial court
had not resolved the issue of restitution prior to Denning’s filing of his notice of appeal.”
(Br. of Appellee at 12.) We have jurisdiction, as the trial court found Denning guilty and
entered a judgment of conviсtion. The trial court, despite its oral statement it would “leave
restitution open,” entered a final sentencing order that did not impose restitution. Under
those circumstances, we will not deprive Denning of his day in court based solely on a
statement made during a hearing.
See Howell v. State,
In urging us to dismiss Denning’s entire appeal, the State relies on Haste v. State , 967 N.E.2d 576 (Ind. Ct. App. 2012). There, the State presented evidence at a sentencing hearing *4 concerning the damage Haste’s methamphetamine manufacturing activity had caused to his landlord’s home. The State asked the trial court to enter a restitution order in the amount of $90,000. The trial court issued an order sentencing Haste tо a ten-year executed sentence and indicating that the court was taking the issue of restitution under advisement. On August 23, 2011, before the trial court entered an order addressing restitution, Haste filed his notice of аppeal.
We dismissed the appeal, noting we have jurisdiction in all appeals from final judgments; therefore, whether an order is a final judgment determines our subject matter jurisdiction. Id . at 576. In a criminal matter, sentencing is a final judgment, id ., and a requirement that a defendant pay restitution is as much a part of a criminal sentence as any fine or other penalty. Id . “ Because the trial court specifically stated in its August 17, 2011 sentencing order thаt it was taking the restitution issue under advisement, that order did not completely dispose of all sentencing issues.” Id . at 576-77 (emphasis added). Accordingly, the sentencing order Haste attempted to appeal was not a final judgment. . at 577.
Haste
is distinguishable and does not require dismissal of Denning’s appeal.
Denning’s final written sentencing order did not impose restitution or in any way indicate the
question of restitution was still to be considerеd. In fact, the sentencing order explicitly
noted Denning was “advised of his right to appeal and pauper counsel appointed.” (App. at
41.) The trial court would presumably not have so advised Denning and appointed appellate
counsel had it not intended its sentencing order, which did not provide for restitution, to be
*5
final.
[4]
Cf. Wilson v. State,
We recently noted
it is a common practice in trial courts throughout our state for a trial judge to impose a sentence upon a defendant while taking restitution under advisement for various reasons. This practice, however, can prove to be problematic -- as it has in this case -- because it delays a defendant’s ability to begin an appeal due to the fact that a final order has not been entered. Consеquently, this practice would affect a trial judge’s ability to advise a defendant of his appellate rights. Furthermore, when a trial court enters a sentence but takes restitution under advisement, the trial court is still subject to the ninety (90) day time limitation in Indiana Trial Rule 53.2 (“the lazy judge rule”), which is applicable to criminal proceedings pursuant to Indiana Criminal Rule 15. Therefore, the best practice would be for trial courts to enter an order of restitution at the same time as sentencing.
Alexander v. State
,
While it is apparent from Denning’s sentencing order that the trial court advised Denning of his appeal rights, entered a final order, and did nоt in fact “leave restitution open,” we agree with the Alexander reasoning. Entry of a restitution order at the time of Denning’s sentencing, had that been the court’s intent, would have left no doubt as to whether or when Denning could bring his appeal.
*6 As the issue of restitution was not pending, as alleged by the State, Denning is not precluded from bringing this appeal of his conviction.
2. Incredible Dubiosity
Denning argues there was insufficient evidence to convict him bеcause the victim’s
testimony was incredibly dubious. Under the “incredible dubiosity” rule, a reviewing court
will impinge on the jury’s responsibility to judge the credibility of witnesses only when
confronted with inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity.
Murray v. State
,
Schaffer’s statements were not incredibly dubious. Denning directs us tо no specific testimony that runs counter to human experience or that reasonable persons could not believe. Instead, he asserts Schaffer was “not forthcoming” with a detective who intеrviewed him, (Br. of Appellant at 10); was “reluctant” to give the detective details about his relationship with Denning, ( id . at 11); was “evasive with the police about his relationship with Denning,” ( id . at 12); and “Schaffer and Denning both testified to significantly different versions of the same incident.” ( . at 14.) He notes the trial court characterized Schaffer’s version of the *7 events as “squirrely and evasive.” (Tr. at 248.)
We decline to hold a witness’ statements are necessarily “incredibly dubious” just because the witness is “evasive,” “not forthcoming,” or “reluctant” to reveal information, especially where, as here, the challenged information has no apparent relevance to thе elements of the offense with which the defendant was charged. Nor will we hold a statement is, regardless of its content, “incredibly dubious” just because it is “squirrely.” [5] And see Murray v. State , 761 N.E.2d 406, 409 (Ind. 2002) (noting that conflict between trial testimony and pre-trial stаtement does not make trial testimony incredibly dubious).
3. Lesser Included Offense
Denning argues he should have been convicted of, at most, battery resulting in serious
bodily injury as a Class C felony instead of attempted robbery as a Class A felony, bеcause
the Class C felony is a lesser-included offense of the Class A felony. He relies on
Porter v.
State
,
We presume that a trial court knows the law in Indiana,
Palmer Dodge, Inc. v. Long
,
CONCLUSION
Denning is appealing a final order, as he was not subject to a pending restitution order; his victim’s testimony was not incredibly dubious; and the trial court was not obliged to еnter a conviction of a lesser-included offense. We therefore have jurisdiction over this appeal and affirm the trial court.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
Notes
[1] Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-5-1 (robbery).
[2] Ind. Code § 35-50-2-8.
[3] Denning does not list this in his Statement of thе Issues, but he argues it at length in his brief.
[4] The State asserts: “If, at some point, the trial court did order restitution, Denning could appeal from that
order.” (Br. of Appellee at 11-12.) But the record does not reflect thе court retained continuing jurisdiction
over restitution or any other matter; having sentenced Denning in a final order that did not require, or even
mention restitution, the trial court could not “at some point” subsequently order restitution. After a final
judgment a court retains only such continuing jurisdiction as is permitted by the judgment itself, or as is given
the court by statute or rule.
Wilson v. State
,
[5] The trial court explicitly stated Schaffer’s account, though “squirrely,” was “a credible account.” (Tr. at 248.)