Cleverly P. Lockhart v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 20 2015, 6:38 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cleverly P. Lockhart, May 20, 2015

Appellant-Defendant, Court of Appeals Case No. 34A04-1407-CR-351 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Bruce C. Embrey, Special Judge Appellee-Plaintiff. Cause No. 34C01-9406-CF-40

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 1 of 13 [1] Cleverly P. Lockhart was convicted in 1995, after a jury trial, of one count of

child molesting1 as a Class C felony and three counts of child molesting, 2 each

as a Class B felony. He brings this belated appeal after his re-sentencing in

1998, where he received a fifty-three-year sentence, and raises the following

issue: whether the trial court erred when it re-sentenced him. [2] We affirm.

Facts and Procedural History [3] The facts of Lockhart’s 1995 convictions were set out in his direct appeal to this

court as follows:

In November of 1993, Lockhart moved into the house of his friend, Michelle Frazier. At first, Lockhart slept on a couch, but eventually began sleeping in the bedroom of Frazier’s eleven year old son, J.R. Lockhart developed a close father-son relationship with J.R. In January of 1994, while Lockhart and J.R. sat on the floor under a blanket and watched television, Lockhart reached over and placed his hand inside J.R.’s underwear. Lockhart rubbed J.R.’s penis for several minutes. A couple of weeks later, Lockhart went into J.R.’s bedroom and locked the door. He told J.R. about oral sex and then pulled J.R.’s pants down. Lockhart placed his mouth on J.R.’s penis for several minutes. One month later, Lockhart again entered J.R.’s bedroom and locked the door. He performed oral sex on J.R. and forced J.R. to perform

1 See Ind. Code § 35-42-4-3(b). We note that, effective July 1, 2014, a new version of the criminal statute at issue in this case was enacted. Because Lockhart committed his crimes prior to July 1, 2014, we will apply the statute in effect at the time he committed his crimes. 2 See Ind. Code § 35-42-4-3(a).

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oral sex on him. Afterwards, Lockhart placed his penis into a sock and masturbated until he ejaculated. In March of 1994, Lockhart became angry with J.R. for not completing a household chore. Lockhart spanked J.R. and ordered him to go to his bedroom. Lockhart later went to J.R.’s bedroom to apologize. Lockhart told J.R. “how to make love to a guy” and then “french-kissed.” Lockhart kissed J.R. all over his body and put his mouth on J.R.’s penis. Lockhart moved out of the house later that month. Before leaving, Lockhart told J.R. that if J.R. ever decided he was homosexual, he should contact Lockhart. Approximately two weeks later, J.R. told his mother about the molestations. Frazier immediately reported the incidents to Child Protective Services. Lockhart v. State, 671 N.E.2d 893, 896-97 (Ind. Ct. App. 1996). The State

charged Lockhart with one count of Class C felony child molesting and three

counts of Class B felony child molesting. At the jury trial, Lockhart did not

raise mental illness as a defense, and he testified coherently in his own defense.

Lockhart claimed to have received letters from the victim recanting the

accusations against Lockhart; however, the evidence showed that the letters had

not been written by the victim. There was also evidence and references to

several other forged documents associated with the case. According to

Lockhart’s trial attorney, there were many forged documents concerning cases

in which Lockhart was involved, and the attorney viewed documents provided

by Lockhart with caution until they could be verified by other sources. [4] At the conclusion of the jury trial, Lockhart was found guilty as charged. The

trial court sentenced him to eight years for the Class C felony conviction and

twenty years each for the three Class B felony convictions, with the sentences to

run consecutively, for a total sentence of sixty-eight years; however, believing it

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was required to do so under statute, the trial court reduced the aggregate

sentence to thirty years. This court affirmed Lockhart’s convictions on direct

appeal, but found that the trial court had erred in its belief that it was required

to reduce Lockhart’s sentence and had, therefore, imposed an illegal sentence.

Lockhart, 671 N.E.2d at 904-05. Lockhart’s original sentence was vacated, and

the case was remanded with instructions to impose a “statutorily authorized

sentence.” Id. at 905.3 [5] Although it is not clear why, Lockhart was examined by Dr. Angel Brignoni on

September 19, 1995, about one month after his original sentencing, and by Dr.

David Jarmon on April 22, 1996, about eight months after his sentencing.4 In

September 1995, Dr. Brignoni diagnosed Lockhart with bipolar disorder with

psychotic features and concluded that Lockhart was incompetent to stand trial

at that time. Appellant’s App. for 34A04-1204-CR-226 at 64-65. In April 1996, Dr.

Jarmon diagnosed Lockhart with schizo-affective disorder, bipolar type and

3 This court also stated, in a footnote, that three of the aggravating factors relied upon by the trial court were not proper. Lockhart v. State, 671 N.E.2d 893, 904 n.5 (Ind. Ct. App. 1996). This was, however, not the basis for vacating Lockhart’s sentence, and there were four other aggravating factors relied upon by the trial court that were not found to be improper: (1) Lockhart’s violation of probation; (2) his prior criminal history; (3) the need for correctional treatment; and (4) the violation of a position of trust. Id. at 903. 4 The CCS contains no entries indicating either that these evaluations were ordered or that the reports were filed with the trial court. Dr. Brignoni’s report states that Lockhart was being evaluated “to determine whether he is competent to stand trial,” but at the time of the evaluation, Lockhart had already been tried, convicted, and sentenced for his crimes. Appellant’s App. for 34A04-1204-CR-226 at 61. Dr. Jarmon’s report states that Lockhart was currently incarcerated and had been for approximately three years for an arrest on child molesting charges, id. at 57; however, at the time of evaluation, Lockhart had already been convicted and sentenced for the child molesting charges. Therefore, it does not seem that these reports were created in connection with this case as the case would have been on appeal with this court at the time the evaluations were performed.

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concluded that there were questions about Lockhart’s competency to stand trial.

Id. at 60. Dr. Jarmon also cautioned, however, that he could not rule out the

possibility of malingering in this case. Id. at 58. [6] On June 12, 1997, Lockhart’s attorney for the re-sentencing filed a motion

requesting a mental examination, which was granted by the trial court. The

trial court received a copy of the report from this mental examination on April

2, 1998. A report of a psychiatric evaluation done by Dr. Edward Wasserman

on July 15, 1997 is contained in the record, which states that the evaluation had

been ordered to recommend admission to the psychiatric ward of the Westville

Correctional Center. It appears this was the report that the trial court referred

to at the re-sentencing hearing as it occurred close in time to the ordered

evaluation, and in the transcript of the re-sentencing, the trial court referred to

page two of the report and verbatim quotes Dr. Wasserman’s diagnosis of “‘Bi-

Polar [a]ffective Disorder with psychosis and rule out schizo[a]ffective disorder,

also chemical dependency to poly-substances.’” Appellant’s App. 34A04-1204-CR-

226 at 52 (quoting Appellant’s App. 34A05-0905-PC-293 at 34). The July 15 report

recommended that Lockhart be admitted to the psychiatric area for further

observation and treatment, but did not contain an opinion that Lockhart was

incompetent at that time. [7] The re-sentencing hearing was held on April 16, 1998. During the hearing,

Lockhart did not claim that he was currently incompetent or make any

objection that he could not be sentenced on that basis. The parties did not

present any evidence except for Lockhart’s counsel referring to “the information

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that the [c]ourt had on the . . . medical reports.” Id. at 47. The trial court

mentioned a psychiatric evaluation given to it by Lockhart’s counsel,

presumably the evaluation done by Dr. Wasserman on July 15, 1997, and to

two exams it already had, presumably the reports by Drs. Brignoni and Jarmon.

After argument by the parties, the trial court found as aggravating factors that

Lockhart was on probation at the time he committed the crimes, his prior

criminal history, that prior periods of incarceration had not rehabilitated him,

and the violation of a position of trust. It found as a mitigating factor that

Lockhart suffers from bi-polar affective disorder with psychosis. The trial court

found the aggravating factors outweighed the mitigating factor and sentenced

Lockhart to eight years for his Class C felony conviction and fifteen years for

each of his three Class B felony convictions with the sentences to run

consecutively for an aggregate sentence of fifty-three years. [8] Lockhart filed a petition for post-conviction relief shortly after the re-sentencing

hearing. At the hearing on his petition, Lockhart attempted to admit several

exhibits, which the post-conviction court excluded, including an affidavit

purporting to be from Lockhart’s re-sentencing counsel that stated that

Lockhart was incompetent during the re-sentencing hearing. The attorney

testified at the hearing, however, and stated that it was not his signature on the

affidavit and he did not remember the affidavit. Included in the documents

attached to this alleged affidavit by the attorney was a one-page letter

purporting to be from Dr. Wasserman to the sentencing judge dated January

14, 1998 that stated the opinion that Lockhart was incompetent at that time.

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Lockhart’s post-conviction petition was denied, and this court affirmed that

ruling on appeal. [9] Lockhart filed a motion to correct erroneous sentence in March 2012, which

was denied by the trial court. On his appeal of that denial, Lockhart included a

one-page document in his appendix that claimed to be a report by Dr.

Wasserman regarding an evaluation conducted on April 13, 1998. The report

stated that Lockhart was incompetent at that time. The denial of Lockhart’s

motion to correct erroneous sentence was affirmed. Lockhart now belatedly

appeals his 1998 re-sentencing.

Discussion and Decision [10] Lockhart argues that the trial court erred when it re-sentenced him. He first

contends that the trial court abused its discretion when it sentenced him to fifty-

three-years at his re-sentencing hearing. We review a trial court’s sentencing

decision for an abuse of discretion. Gellenbeck v. State, 918 N.E.2d 706, 711

(Ind. Ct. App. 2009). An abuse of discretion occurs if the sentencing decision is

clearly against the logic and effect of the facts and circumstances. Id. [11] Lockhart concedes that the sentence imposed by the trial court was within

statutory parameters and that the “sentencing order is not subject to challenge

on the grounds of an improper [weighing] of aggravating and mitigating

factors.” Appellant’s Br. at 9. Instead, Lockhart argues that the trial court

abused its discretion in “treating incompetence . . . as merely a mitigating

circumstance, rather than a prohibited violation of federal due process.” Id. He

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contends that, at the re-sentencing hearing, he submitted reports that indicated

that he was incompetent and that, because a conviction of an incompetent

person is a violation of federal due process, the sentencing of an incompetent

person must also be a denial of due process. [12] Initially, we note that Lockhart failed to provide a cogent argument in support

of his contention. Indiana Appellate Rule 46(A)(8) requires that contentions in

an appellant’s brief be supported by cogent reasoning and citations to

authorities, statutes, and the appendix or parts of the record on appeal. “A

party waives an issue where the party fails to develop a cogent argument or

provide adequate citation to authority and portions of the record.” Davis v.

State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005), trans. denied. Here, Lockhart

merely cites to case law stating that a defendant may not stand trial when

incompetent, but makes no citation to authority that states that a defendant

may not be sentenced if incompetent. Further, he does not assert any argument

as to why such a rule would apply to the present case, where he was merely

being re-sentenced due to an error in the original sentencing and no evidence

was even presented at the re-sentencing hearing. Therefore, Lockhart has

waived this contention by failing to provide a cogent argument in support of his

claim. [13] Waiver notwithstanding, Lockhart’s argument fails. In support of his

contention that he was incompetent at the time of the re-sentencing hearing,

Lockhart points to three reports: the September 1995 evaluation report by Dr.

Brignoni; the April 1996 evaluation report by Dr. Jarmon; and an evaluation

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report by Dr. Wasserman dated April 13, 1998. Dr. Brignoni evaluated

Lockhart in September 1995, two and a half years before the re-sentencing

hearing. Dr. Jarmon evaluated Lockhart in April 1996, two years before the re-

sentencing. Given that these reports were completed at least two years prior to

when Lockhart was re-sentenced, they are not relevant as to whether he was

competent at the time of the re-sentencing hearing because it would be

speculation to assume that Lockhart’s condition was still the same as it was two

years prior. The presumption that Lockhart’s condition is not the same as it

was two years prior is supported by the fact that his attorney did not assert that

Lockhart was incompetent at the re-sentencing or object to the re-sentencing

occurring on that basis. [14] Therefore, the only remaining evidence supporting incompetence was the report

by Dr. Wasserman dated April 13, 1998. Although Lockhart has included this

report in the record on appeal, there is no evidence that this report was

presented to the trial court at re-sentencing. The one-page report at issue is not

file-stamped and is dated April 13, 1998. Appellant’s App. 34A04-1204-CR-226 at

66. The CCS indicates that, on April 2, 1998, the trial court received a mental

evaluation that had been requested on June 12, 1997, and no other entries

reflect that a subsequent report was received between April 13 and 16, 1998.

Appellant’s App at 21. It is clear that this one-page report was not the same one

discussed by the parties at the re-sentencing hearing. The report discussed was

two pages in length, and the language quoted by the trial court matches that

from a report by Dr. Wasserman completed on July 15, 1997, but does not

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match any language from the April 13 report. The two-page evaluation from

July 15, 1997 also seems more likely to be one ordered by the trial court as it

occurred closer in time to June 12, 1997, the date it was ordered. It is

important to note that, although the July 15, 1997 report diagnosed Lockhart

with significant mental health issues, it did not allege that he was incompetent

at that time. Appellant’s App. 34A05-0905-PC-293 at 33-34. The record, therefore,

does not support that the April 13 report was ever before the trial court at re-

sentencing.5 Lockhart has failed to present evidence that the evidence presented

to the trial court at his re-sentencing hearing demonstrated that he was

incompetent at that time. [15] Even if there was evidence that the trial court was presented with reliable

evidence that Lockhart was incompetent at the time of re-sentencing, it would

not have been an abuse of discretion to re-sentence Lockhart in this case. The

trial and conviction of a defendant who lacks adequate competence is a denial

of federal due process. Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995). The

standard for deciding competency is whether or not the defendant possesses the

ability to consult rationally with counsel during the case and factually

comprehend the proceedings against him or her. Id. It clearly violates due

process for a defendant to stand trial when he has no understanding of the

5 The circumstances of this case also cause concern as to the validity of the April 13, 1998 report by Dr. Wasserman. There was a history of previous forged documents in this case associated with Lockhart. The April 13 report was not file-stamped and was contained in an appendix submitted by Lockhart pro se in prior proceedings in this case. Nothing in the CCS shows that this report was ever filed in this proceeding.

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proceedings and cannot assist in his defense. Id. at 1384-85. However, no

authority has been presented to indicate that this due process right extends to

the imposition of sentence. [16] Even assuming that there is a constitutional due process right to be competent

at the initial hearing, it does not mean this is automatically true for a re-

sentencing hearing as occurred in the present case. At the original sentencing

hearing, the defendant may provide important assistance to his counsel in

preparing evidence and witnesses to present on his behalf. See Ind. Code § 35-

38-1-3 (defendant is entitled to subpoena and call witnesses and to present

information in his own behalf at sentencing hearing). A defendant also

provides information for the pre-sentence investigation report and has an

opportunity to speak on his behalf before the sentence is imposed. Therefore, a

defendant’s ability to assist in his sentencing hearing would be hindered if he

were not competent during his original sentencing hearing. [17] However, in the present case, such reasoning does not apply. Here, Lockhart’s

re-sentencing hearing was just an opportunity for the trial court to correct a

legal error that happened during the original sentencing. No new evidence was

presented, and neither party called any witnesses. No new pre-sentence report

was presented, and the trial court was not asked to consider any new

aggravating or mitigating factors. Thus, this was not a proceeding where the

defendant’s ability to assist his counsel was necessary to protect his rights or

where there were significant issues that required defendant’s participation. The

purpose of this re-sentencing hearing was to impose a sentence that did not

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include the legal error that occurred in the initial hearing. We conclude that the

trial court did not abuse its discretion when it sentenced Lockhart. [18] Lockhart next argues that his fifty-three-year sentence is inappropriate in light

of the nature of the offense and the character of the offender. Under Indiana

Appellate Rule 7(B), “we may revise any sentence authorized by statute if we

deem it to be inappropriate in light of the nature of the offense and the character

of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014).6 The

question under Appellate Rule 7(B) is not whether another sentence is more

appropriate; rather, the question is whether the sentence imposed is

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the

defendant’s burden on appeal to persuade the reviewing court that the sentence

imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,

133 (Ind. Ct. App. 2012), trans. denied. [19] As to the nature of the offense, Lockhart repeatedly molested the eleven-year-

old son of his friend, who had allowed him to stay with her. The victim did not

have a father figure in his life, and Lockhart developed a close father-son

relationship with the boy. Over the span of a few months, Lockhart progressed

from fondling J.R. to performing oral sex on the boy and having J.R. perform

6 On July 19, 2002, our Supreme Court amended Indiana Appellate Rule 7(B) effective January 1, 2003. The rule is directed to the reviewing court and sets forth the standard for that review. Because that review is made as of the date the decision or opinion is handed down, even when a sentence was imposed prior to January 1, 2003, we will review the sentence using the “inappropriate” test that is currently in effect. Kien v. State, 782 N.E.2d 398, 416 n.12 (Ind. Ct. App. 2003), trans. denied.

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oral sex on him. Lockhart also told J.R. that he was teaching him “how to

make love to a guy.” Lockhart, 671 N.E.2d at 897. As a result of Lockhart’s

acts, J.R. suffered significant behavioral and emotional issues. Lockhart’s

offenses consisted of multiple molestations of the victim that occurred over a

period of several months, he abused a position of trust, and he caused

significant emotional harm to the victim. Lockhart’s sentence is not

inappropriate in light of the nature of the offense. [20] As to Lockhart’s character, he has a significant criminal history that consists of

at least four felony convictions, including arson, theft, and forgery. Lockhart

was also on probation at the time he committed the offenses for which he was

re-sentenced. Additionally, there was evidence that Lockhart had forged

documents involved in this case. Further, Lockhart’s abuse of his position of

trust with the victim in this case, with whom he had a father-son relationship,

speaks to his poor character. We conclude that Lockhart’s sentence is not

inappropriate in light of his character. The trial court did not err in imposing a

fifty-three-year sentence at Lockhart’s re-sentencing hearing. [21] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

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