Brittany L. Loftin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Sep 17 2018, 10:02 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Peter D. Todd Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brittany L. Loftin, September 17, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-934 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Kristine A. Osterday, Judge Trial Court Cause No. 20D01-1711-F6-1632

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 1 of 10 [1] Brittany L. Loftin (“Loftin”) pleaded guilty in Elkhart Superior Court 1 to

failure to return to lawful detention1 as a Level 6 felony, and Senior Judge

David T. Ready (“Senior Judge Ready”) was the judge that conducted the

guilty plea hearing. Some weeks later, Loftin’s sentencing hearing was held,

and Judge Kristine A. Osterday (“Judge Osterday”), the presiding judge of

Elkhart Superior Court 1, conducted that hearing. Loftin appeals, claiming that

Judge Osterday did not have jurisdiction to sentence her pursuant to Indiana

Trial Rule 63. [2] We affirm.

Facts and Procedural History [3] On March 13, 2017, Loftin was directed to serve a sentence in Cause Number

20D01-1611-F4-294 (“Cause 294”) in the Elkhart County Community

Corrections work release facility. On July 24, 2017, Loftin left the facility with

permission to go to work, and she was required to return the same day. By the

next morning, Loftin had not returned. In November 2017, the State charged

Loftin with Level 6 felony failure to return to lawful detention for her failure to

return to the work release facility on July 24, 2017, and a warrant was issued for

her arrest. Appellant’s App. Vol. II at 3, 14. On December 4, 2017, a car in

which Loftin was a passenger was stopped by police, she informed the officers

of the outstanding warrant, and she was arrested. Loftin appeared with counsel

1 See Ind. Code § 35-44.1-3-4(c).

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at the initial hearing, which was held before Judge Osterday.2 Tr. Vol. II at 2.

Judge Osterday read the charging information to Loftin and advised Loftin that

she had been charged with this new crime related to her failure to return to

Community Corrections, which Judge Osterday explained was a separate

offense from a violation of probation petition that had been filed in Cause 294. [4] On February 6, 2018, which was the day that her trial was to begin, Loftin

pleaded guilty, without a written plea agreement, to the Level 6 felony of failure

to return to lawful detention. Senior Judge Ready presided at the guilty plea

hearing. He reviewed the charging information with Loftin, and he advised her

of her rights. Loftin acknowledged that she had been committed to Elkhart

County Community Corrections in Cause 294, that she was released from the

work release facility on July 24 in the morning, was supposed to return the

same day, and had not returned as of 9:00 a.m. the next day. Id. at 26. She

acknowledged that she never voluntarily returned to the work release facility

and that she was arrested on an outstanding warrant when she was a passenger

in a car that got pulled over for a traffic violation. Id. at 27. At the conclusion

of the hearing, Senior Judge Ready accepted Loftin’s guilty plea and entered

judgment of conviction. Id. at 30. [5] On March 22, 2018, the trial court held a sentencing hearing, and Judge

Osterday presided. Judge Osterday began by confirming that counsel had

2 According to the record, Judge Osterday was a magistrate at the time. Tr. Vol. II at 2.

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received and reviewed the presentence investigation report, and then she

received argument from counsel regarding sentencing. Counsel for Loftin

asked the trial court not to aggravate the sentence and urged the court to

consider alternative placement again, arguing: (1) Loftin pleaded guilty and

accepted responsibility; (2) this was not a violent crime, and Loftin “was

someone who just didn’t return,” (4) Loftin’s sister was ill, Loftin had been

asked to help care for her children, and Loftin was “overwhelmed” and regrets

not returning. Id. at 35. Loftin told Judge Osterday, “I apologize and I’m just

ready to get everything over with. You know, get home to my son. Get all of

this over with.” Id. at 36. The State argued that, while Loftin did plead guilty,

she had “numerous opportunities” to do so before trial but, because she waited

until the morning of trial to plead, “the trial date was wasted because of her.”

Id. The State also argued that Loftin’s “previous history is particularly

egregious and she was fortunate to be in work release in the first place and . . .

alternative placement is not appropriate when you escape.” Id. at 37.

Therefore, the State urged the trial court to impose an aggravated and executed

sentence at the Indiana Department of Correction. [6] Following argument, Judge Osterday remarked that Loftin’s criminal history

was not particularly long but was “significant.” Id. Judge Osterday also stated

that, after reading Loftin’s presentence investigation report, she questioned

whether Loftin was “being honest with [her]self” about alcohol issues. Id. at

38. Judge Osterday sentenced Loftin to eighteen months in the Elkhart County

Jail and authorized alternative placement if approved by Community

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Corrections.3 Id. at 38-39; Appellant’s App. Vol. II at 9. Loftin did not object to

Judge Osterday presiding at the sentencing hearing. Loftin now appeals.

Discussion and Decision [7] Loftin contends that, pursuant to Indiana Trial Rule 63, Judge Osterday lacked

jurisdiction to enter the sentencing order, and thus the sentencing order is void.

Appellant’s Br. at 6. As an initial matter, we find that Loftin has waived this

issue for appeal by failing to object at the sentencing hearing to having Judge

Osterday determine and impose her sentence. Our Supreme Court has

recognized that “the failure of a party to object at trial to the authority of a

court officer to enter a final appealable order waives the issue for appeal.” 4

Floyd v. State, 650 N.E.2d 28, 32-33 (Ind. 1994). Here, Loftin did not object at

the sentencing hearing to Judge Osterday sentencing her, and therefore Loftin

has waived the issue. See McMichel v. State, 655 N.E.2d 61, 63 (Ind. 1995)

(defendant’s post-conviction claim, asserting that his conviction was invalid

because the master commissioner did not have authority to accept his plea or

sentence him, was properly denied due to waiver because defendant did not

object to the master commissioner’s authority to act and thus failed to properly

3 Judge Osterday ordered Loftin’s sentence in the present case to be served consecutive to sanctions for her violation of probation in Cause 294. Tr. Vol. II at 39. 4 In its analysis, the Indiana Supreme Court observed that, as to the matter of jurisdiction, “[I]t has been the long-standing policy of this [C]ourt to view the authority of the officer appointed to try a case not as affecting the jurisdiction of the court.” Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994). It explained, “‘The defect pointed out was not affecting the jurisdiction of the court, but the right and authority of its presiding judge to act as such.’” Id. (quoting Gordy v. State, 262 Ind. 275, 282-83; 315 N.E.2d 362, 367 (Ind. 1974)).

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preserve the issue for appeal); see also 4 William F. Harvey & Stephen E.

Arthur, Indiana Practice, Rules of Procedure Annotated, § 63.2 (3d ed. 2017) (“An

objection must be made, however, or the point is waived.”). [8] Waiver notwithstanding, we find no error. Loftin’s argument on appeal is that,

under the facts of her case, Indiana Trial Rule 63 required that she be sentenced

by Senior Judge Ready. The interpretation of the Indiana Trial Rules is a

question of law, which we review de novo. In re Paternity of V.A., 10 N.E.3d 61,

63 (Ind. Ct. App. 2014). In construing the meaning of the Trial Rules, our

objective is to give effect to the intent underlying the rule. Id. [9] Trial Rule 63, titled “Disability and unavailability of a judge,” provides, in

pertinent part:

The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is concluded. If the judge before whom the trial or hearing was held is not available by reason of death, sickness, absence or unwillingness to act, then any other judge regularly sitting in the judicial circuit or assigned to the cause may perform any of the duties to be performed by the court after the verdict is returned[.]

[10] This court has recognized that a purpose of Trial Rule 63 is to ensure that a

successor judge who did not receive evidence and view witnesses is not

reweighing evidence or assessing credibility of witnesses. See Gunter v. State,

605 N.E.2d 1209, 1211 (Ind. Ct. App. 1993) (criminal law contemplates that

same judge will preside throughout criminal trial, and the purpose of the rule is Court of Appeals of Indiana | Memorandum Decision 18A-CR-934 | September 17, 2018 Page 6 of 10

“to insure to both parties the fairness and evenhandedness that arises from

having the same person preside over the various facets of a trial”), trans. denied;

Oliver v. Morrison, 431 N.E.2d 140, 143-44 (Ind. Ct. App. 1982) (holding that

special judge who did not preside at trial but ruled on motion to correct error,

and, in so doing, assigned credibility to a witness without having seen the

witness, abused his discretion); 4 William F. Harvey & Stephen E. Arthur,

Indiana Practice, Rules of Procedure Annotated, § 63.2 (3d ed. 2017) (“[T]he rule

insists that a second or successor judge cannot resolve issues of credibility and

weight of the evidence, without having heard the evidence and observe[d] the

demeanor of the witnesses.”). [11] Here, Loftin’s argument is that because Senior Judge Ready conducted the

guilty plea hearing, he “maintained jurisdiction over the case,” and since

nothing in the record indicates that Senior Judge Ready was unavailable to

conduct the sentencing hearing, Judge Osterday’s sentencing order is “void and

without effect” pursuant to Indiana Trial Rule 63. Appellant’s Br. at 4, 6. Loftin

asks this court to remand the action to the trial court “so that Senior Judge

Ready can sentence her or Judge Osterday can issue an order that determines

and shows [Senior] Judge Ready is unavailable before she sentences Loftin.”

Id. at 6. We disagree with Loftin’s interpretation and application of Trial Rule

63 and find that, contrary to Loftin’s claim, remand for re-sentencing is not

warranted. [12] As this court has observed, a guilty plea hearing is not the same as a criminal

trial. See Long v. State, 962 N.E.2d 671, 674 (Ind. Ct. App. 2012) (holding that

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master commissioner who presided at guilty plea hearing was not statutorily

authorized to sentence defendant because the statute only authorizes sentencing

by magistrate or master commissioner if he or she “presides at a criminal

trial[,]” and appellate court was “not at liberty to conclude that [the statute’s

language] indicating ‘criminal trial’ really means ‘criminal trial or guilty plea

hearing’”), trans. denied. [13] We agree with the Long court that a guilty plea hearing and a trial are not

equivalents. At a guilty plea hearing, the applicable criminal charges are read

to the defendant, and a factual basis is presented, based on charging

information and probable cause affidavit, and, thereafter, the defendant, if he or

she so chooses, accepts the truthfulness of the allegations. This is

distinguishable from a trial, where evidence and witnesses are presented,

observed, and evaluated, and guilt or innocence is determined. We thus find

that Trial Rule 63’s directive – that “[t]he judge who presides at the trial of a cause

or a hearing at which evidence is received shall, if available, . . . make all [post-trial]

decisions and rulings” – does not require that the same judge must conduct both

the guilty plea hearing and the sentencing hearing. Ind. Trial Rule 63(A)

(emphasis added). [14] Furthermore, even if it was error in this case for one judge to accept Loftin’s

guilty plea and another judge to sentence her, Loftin has not shown that she

was prejudiced, and, thus, any error was harmless. First, Loftin has not

alleged, and we do not find, that Judge Osterday improperly re-evaluated

evidence that had been presented to Senior Judge Ready at the guilty plea

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hearing. The guilty plea hearing consisted of Senior Judge Ready reviewing the

charging information with Loftin and advising Loftin of her rights. Loftin

acknowledged that she left the work release facility and did not return and that

she was later arrested on the outstanding warrant. Tr. Vol. II at 26-27. At the

subsequent sentencing hearing, Judge Osterday outlined that the hearing would

include both sentencing in the current case, as well as imposition of sanctions

for a probation violation in Cause 294, and then she confirmed that the parties

had received and read the presentence investigation report. Thereafter, counsel

for each party presented argument as to sentencing. When the trial court asked

Loftin if there was anything she wanted to say on her own behalf, she told

Judge Osterday, “I apologize and I’m just ready to get everything over with.

You know, get home to my son. Get all of this over with.” Id. at 36. Judge

Osterday, during her imposition of sentence, made statements indicating that

she had read and was familiar with the contents of Loftin’s presentence

investigation report. We agree with the State that “[a]ll of the evidence relevant

to the sentencing determination was provided at the sentencing hearing,”

including the presentence investigation report and probable cause affidavit.

Appellee’s Br. at 8. Given these facts, there is no likelihood of unfairness to

Loftin based on information or evidence given to Senior Judge Ready at the

guilty plea hearing that Judge Osterday either did not have or improperly re-

evaluated at the subsequent sentencing hearing. [15] Second, Judge Osterday sentenced Loftin to eighteen months in the Elkhart

County Jail and approved of alternative placement. The maximum sentence for

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a Level 6 felony is two and one-half years. Ind. Code § 35-50-2-7. Thus, Loftin

received a sentence well below what was permitted. As Loftin has not argued,

much less shown, that she suffered any harm as a result of Judge Osterday

imposing sentence, rather than Senior Judge Ready, we find that any error was

harmless. See Gunter, 605 N.E.3d at 1211 (finding that any error in having a

special judge preside over the habitual offender phase of a trial, after the first

judge disqualified himself following the first phase of trial, was harmless

because there was no suggestion of any actual prejudice). Based on the record

before us, we conclude that Judge Osterday’s sentencing order is not void, and

remand for re-sentencing is not warranted. [16] Affirmed.

Vaidik, C.J., and Riley, J., concur.

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