Tuesday, February 19, 2013
Ind. Decisions - Supreme Court decides one today
In Ronald B. Hawkins v. State of Indiana, an 11-page, 5-0 opinion, Justicve David writes:
When a criminal defendant fails to appear at trial, it is appropriate to consider whether or not the absence waives his right to counsel and right to be present at trial before trying that defendant in absentia. Such was the case here, where a defendant who lived in North Carolina arrived late for trial in Elkhart, Indiana, only to discover that he had already been convicted. Based on the particular facts and circumstances of this case, however, we conclude that trying the defendant in absentia, without counsel, was not the proper course of action for the trial judge to take. Accordingly, we vacate the defendant’s convictions and remand for a new trial. * * *ILB: Here is the vacated July 3, 2012 2-1 COA opinion (5th case).
[B]ased on the facts and circumstances of this particular case, we find that Hawkins’s failure to appear at trial was not a waiver of his right to counsel and it was inappropriate to try him in absentia without representation. We therefore vacate his convictions and sentence and remand for a new trial. * * *
Because we reverse the trial court’s decision to try Hawkins in absentia and remand for a new trial, the issues he raises with respect to his sentence are necessarily moot. However, we write briefly on them just to highlight two points. * * *
We think the State’s proposed interpretation of “personally present” would effectively render Rule 14(A)(2)(c) meaningless. If a defendant could be “personally present” at sentencing via video conference and satisfy § 35-38-1-4(a), there would be no reason for the Administrative Rules to explicitly require the defendant to give “a written waiver of his or her right to be present in person” before that video conference could be held.
A better interpretation—and one that gives force to both provisions—is that “personally present” and “present in person,” as used in Indiana Code § 35-38-1-4(a) and Indiana Administrative Rule 14(A)(2)(c), respectively, refer to the defendant’s actual physical presence. Thus, a trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution.
Posted by Marcia Oddi on February 19, 2013 12:15 PM
Posted to Ind. Sup.Ct. Decisions