Jason A. Henderson v. State of Indiana , 44 N.E.3d 811 ( 2015 )


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  •                                                                            Sep 30 2015, 8:56 am
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Matthew J. Elkin                                           Gregory F. Zoeller
    Deputy Public Defender                                     Attorney General of Indiana
    Kokomo, Indiana                                            James B. Martin
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Jason A. Henderson,                                        September 30, 2015
    Appellant-Defendant,                                       Court of Appeals Case No.
    34A02-1501-CR-33
    v.                                                 Appeal from the Howard Superior
    Court
    State of Indiana,                                          The Honorable William C.
    Appellee-Plaintiff                                         Menges, Jr., Judge
    Trial Court Cause No.
    34D01-1406-FD-440
    Mathias, Judge.
    [1]     After Jason Henderson (“Henderson”) pleaded guilty to Class A misdemeanor
    invasion of privacy and Class A misdemeanor criminal mischief, the Howard
    Superior Court ordered him to serve consecutive terms of 365 days executed for
    each offense. The trial court also imposed a $5,000 fine for each offense.
    Henderson appeals and raises two issues:
    Court of Appeals of Indiana | Opinion 34A02-1501-CR-33 | September 30, 2015               Page 1 of 7
    I. Whether the trial court abused its discretion when it ordered
    Henderson to serve his sentences consecutive to each other; and
    II. Whether the trial court erred when it ordered him to pay a
    $5,000 fine for each conviction without first inquiring into his
    ability to pay.
    [2]     We affirm in part and remand for proceedings consistent with this opinion.
    Facts and Procedural History
    [3]     Henderson and his former wife, Stephanie Hahn (“Hahn”), have two children.
    Hahn has primary custody of the children, and Henderson exercises visitation
    with them.
    [4]     In 2013, Henderson was convicted of Class D felony invasion of privacy, and as
    a result, a No Contact Order was issued preventing Henderson from having
    contact with Hahn. Hahn also obtained a Protective Order against Henderson.
    Henderson was only allowed to communicate with Hahn to discuss his
    visitation with the children.
    [5]     On June 7, 2014, Henderson was still on probation for the 2013 invasion of
    privacy conviction. On that date, Hahn dropped off the children at Henderson’s
    house for their scheduled visitation. A few minutes later, Hahn received a text
    message from their daughter that stated that Henderson was yelling at the
    children and asked Hahn to return to pick them up. Hahn immediately returned
    to Henderson’s house.
    [6]     As the children were getting into Hahn’s vehicle, Henderson came out of the
    house. He yelled and cursed at Hahn and approached her car. He then grabbed
    the top of Hahn’s partially opened driver’s side window and attempted to force
    Court of Appeals of Indiana | Opinion 34A02-1501-CR-33 | September 30, 2015   Page 2 of 7
    the window down. Hahn put the vehicle in reverse and began backing out of
    Henderson’s driveway. As she did so, Henderson punched the driver’s side
    front fender, causing a large dent.
    [7]      When Hahn and the children returned to her home, she noticed the large dent
    and called the Kokomo Police Department. The police officer photographed the
    damage to Hahn’s vehicle and confirmed that Hahn had a No Contact Order
    and a Protective Order against Henderson.
    [8]      Thereafter, Henderson was charged with Class D felony invasion of privacy
    and Class A misdemeanor criminal mischief. The State later added a third
    charge: Class A misdemeanor invasion of privacy. On December 11, 2014,
    Henderson pleaded guilty to Class A misdemeanor criminal mischief and Class
    A misdemeanor invasion of privacy. The Class D felony charge was dismissed,
    and sentencing was left to the discretion of trial court.
    [9]      Prior to imposing sentence, the trial court considered Henderson’s criminal
    history, which consisted of six felonies and five misdemeanors, and the fact that
    he was on probation for a similar offense committed against Hahn when he
    committed the offenses in this case. The trial court ordered Henderson to serve
    consecutive terms of 365 days executed for each misdemeanor offense. The trial
    court also imposed an aggregate $10,000 fine (or $5,000 for each count) but
    failed to hold an indigency hearing. Henderson now appeals.
    Consecutive Sentences
    [10]     Henderson claims that the trial court abused its discretion by ordering him to
    serve his sentences consecutive to each other because the two convictions “arise
    Court of Appeals of Indiana | Opinion 34A02-1501-CR-33 | September 30, 2015   Page 3 of 7
    from the same facts and circumstances” and “[t]he aggravators are insufficient
    for consecutive sentences.” Appellant’s Br. at 6. The decision to impose
    consecutive or concurrent sentences lies within the trial court's sound
    discretion, and, on appeal, we review the trial court's decision only for an abuse
    of that discretion. Gellenbeck v. State, 
    918 N.E.2d 706
    , 712 (Ind. Ct. App. 2009).
    [11]     The trial court must find at least one aggravating circumstance before imposing
    consecutive sentences. Owens v. State, 
    916 N.E.2d 913
    , 917 (Ind. Ct. App. 2009).
    Here, the trial court considered Henderson’s significant criminal history, which
    includes the commission of a prior, similar offense against Hahn.
    [12]     Specifically, in February 2013, Henderson committed stalking and invasion of
    privacy against Hahn. He ultimately pleaded guilty to Class D felony invasion
    of privacy, and the No Contact order was issued. He was on probation for that
    offense when he committed the offenses in this case.
    [13]     Also, in 2012, Henderson pleaded guilty to Class D felony intimidation. In
    August 2011, Henderson committed Class D felony invasion of privacy for
    violating a protective order. It appears that Hahn was also the victim of these
    offenses.1
    [14]     In that same year, Henderson pleaded guilty to Class A misdemeanor invasion
    of privacy. Henderson was sentenced to consecutive executed terms for two
    counts of Class A misdemeanor invasion of privacy in 2009. Henderson was
    1
    In the pre-sentence investigation report, the probation officer stated that “the defendant’s ex-wife has been
    the victim in almost every case[.]” Appellant’s App. p. 62.
    Court of Appeals of Indiana | Opinion 34A02-1501-CR-33 | September 30, 2015                          Page 4 of 7
    convicted of Class C felony stalking in 2000, Class D felony battery in 2007, a
    Class D felony resisting law enforcement in 2011, Class A misdemeanor battery
    in 2008, and a Class A misdemeanor driving while suspended in 2008.
    Henderson also has several probation violations.
    [15]     The trial court properly considered Henderson’s criminal history as an
    aggravating circumstance. Moreover, Henderson’s inability to lead a law-
    abiding life and continued victimization of Hahn more than supports the trial
    court’s decision to impose consecutive sentences in this case.
    [16]     Without citation to authority, Henderson also argues that the trial court abused
    its discretion by imposing consecutive terms because “these events occur
    simultaneous and are not part of separate events. They are one and the same
    conduct.” Appellant’s Br. at 9. Contrary to Henderson’s claim, no statutory,
    constitutional, or common law contains a restriction on imposing consecutive
    sentences for misdemeanor offenses. Dunn v. State, 
    900 N.E.2d 1291
    , 1292 (Ind
    Ct. App. 2009); Cf. 
    Ind. Code § 35-50-1-2
    (c).
    The $10,000 Fine
    [17]     Next, Henderson argues that the trial court erred when it ordered him to pay a
    $5,000 fine for each conviction without determining his ability to pay.
    Henderson maintains that he is indigent and observes that a public defender
    was assigned to represent him.
    [18]     Sentencing decisions, which include the imposition of fees, costs, and fines, are
    generally left to the trial court's discretion. Bex v. State, 
    952 N.E.2d 347
    , 354
    (Ind. Ct. App. 2011), trans. denied. Also, “[a] person who commits a Class A
    Court of Appeals of Indiana | Opinion 34A02-1501-CR-33 | September 30, 2015   Page 5 of 7
    misdemeanor . . . may be fined not more than five thousand dollars ($5,000).”
    
    Ind. Code § 35-50-3-2
    .
    [19]     Indiana Code section 35-38-1-18 provides that whenever it imposes a fine, the
    trial court “shall conduct a hearing to determine whether the convicted person is
    indigent.” (Emphasis added). Importantly, trial courts have the authority to
    assess fines against an indigent defendant; however, the indigent defendant may
    not be imprisoned for failure to pay those fines or costs. See Whedon v. State, 
    765 N.E.2d 1276
    , 1279 (Ind. 2002).
    [20]     Our supreme court has astutely observed that “a defendant’s financial resources
    are more appropriately determined not at the time of the initial sentencing but
    at the conclusion of incarceration.”2 See id. at 1279. Nevertheless, Indiana Code
    section 35-38-1-18 requires the trial court to hold a hearing when it imposes a
    fine.
    [21]     We also observe conflicting evidence in the record concerning Henderson’s
    financial status. The trial court appointed counsel to Henderson for the trial and
    appellate proceedings in this case. However, “a trial court’s appointment of
    defense and appellate counsel . . . implies a finding of indigency, [but] the
    appointment of counsel is not conclusive as to the defendant’s inability to pay”
    fines. See Briscoe v. State, 
    783 N.E.2d 790
    , 792 (Ind. Ct. App. 2003). Although
    2
    In Whedon, the trial court did not hold a hearing before imposing $125 in court costs. See id. at 1278; (citing
    former Indiana Code section 33-19-2-3(a) which required an indigency hearing when imposing court costs);
    see now 
    Ind. Code § 33-37-2-3
    (a). However, the issue in Whedon was whether the trial court erred when it
    failed to include in its sentencing order an express statement prohibiting incarceration for failure to pay the
    court costs. While an indigency hearing was not held in that case, the trial court made a finding that Whedon
    was indigent. Id. at 1278.
    Court of Appeals of Indiana | Opinion 34A02-1501-CR-33 | September 30, 2015                          Page 6 of 7
    appointed counsel implies indigency in this case, during preparation of the pre-
    sentence investigation report, Henderson reported that his “financial situation is
    good.” Appellant’s App. p. 61. He also stated that his annual income is $35,000
    to $45,000. Id.
    [22]     For all of these reasons, we remand this case to the trial court to hold a hearing
    as required by Indiana Code section 35-38-1-18. See Briscoe, 
    783 N.E.2d at
    792-
    93 (stating that “[w]here a trial court fails to conduct an indigency hearing
    when required, the proper remedy is to remand with instructions to hold such a
    hearing”). We also re-emphasize that the trial court may in its discretion fine
    Henderson whether or not he is found to be indigent.
    Conclusion
    [23]     The trial court did not abuse its discretion when it ordered Henderson to serve
    consecutive terms of 365 days for his misdemeanor convictions. However,
    before imposing a $5,000 fine for each conviction, the trial court should have
    held an indigency hearing as required by Indiana Code section 35-38-1-18. We
    therefore remand this case to the trial court for proceedings consistent with this
    opinion.
    [24]     Affirmed in part and remanded for proceedings consistent with this opinion.
    Baker, J., and Bailey, J., concur.
    Court of Appeals of Indiana | Opinion 34A02-1501-CR-33 | September 30, 2015   Page 7 of 7
    

Document Info

Docket Number: 34A02-1501-CR-33

Citation Numbers: 44 N.E.3d 811

Filed Date: 9/30/2015

Precedential Status: Precedential

Modified Date: 1/12/2023