Court of Appeals of Indiana | Memorandum Decision 19A-CR-1456 | March 31, 2020 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this 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

James A. Hanson

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Ellen H. Meilaender

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Edward M. Hampton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 31, 2020

Court of Appeals Case No.

19A-CR-1456

Appeal from the Allen Superior 

Court

The Honorable David M. Zent, 

Judge

Trial Court Cause No.

02D05-1903-F3-10

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1456 | March 31, 2020 Page 2 of 14

Case Summary

[1] Edward M. Hampton appeals his conviction and sentence for level 3 felony 

robbery following a bench trial at which he represented himself pro se. He 

argues that the trial court erred by failing to adequately advise him regarding 

the scope of cross-examination if he decided to testify and that his sentence is 

inappropriate based on the nature of the offense and his character. We 

conclude that Hampton has waived his claim of trial court error and that he has 

failed to carry his burden to show that his sentence is inappropriate. 

Accordingly, we affirm Hampton’s conviction and sentence for level 3 felony 

robbery. However, because the trial court attempted to avoid double jeopardy 

violations by merging two other counts on which Hampton was found guilty 

into the robbery count, we remand with instructions for the trial court to vacate

Count II, level 5 felony battery, and Count III, level 6 felony criminal 

recklessness.

Facts and Procedural History

[2] On the evening of February 25, 2019, Hampton and his girlfriend Olivia 

Johnston went to a hotel room where Jason Hager and several other people 

were present. Hager knew Hampton and Johnston from previous interactions. 

Hampton was very angry and approached Hager holding a knife and repeatedly 

demanding his money. The knife had a “wooden grain like pattern on it.” Tr. 

Vol. 2 at 53. Hampton put his hand on Hager’s shoulder and “put the knife 

directly to [Hager’s] chest[,]” pressing the tip of the knife hard “enough [for 

Hager] to know that [Hampton] meant business.” Id. at 51-52. Hampton kept 
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demanding his money, and Hager kept telling Hampton that he did not know 

what Hampton was talking about. Hager began to get “very scared[,]” pulled 

out his wallet, and started handing money to Johnston, who was standing 

behind Hampton. Hampton “kept on getting more forceful and his voice got 

louder.” Id. at 52. Hampton came at Hager “hard ... with the knife and it went 

into [Hager’s] hip.” Id. The knife punctured Hager’s skin, and he began to 

bleed. Hager was “[v]ery, very afraid[,]” and handed Johnston his wallet. Id. 

Hager pleaded with them to stop. Johnston went through Hager’s wallet,

grabbed the rest of the money, and returned the wallet to Hager. Hager limped 

from the room with blood flowing out of his hip to seek help. Someone at the 

hotel across the street called the police.

[3] Fort Wayne Police Officer Joshua Franciscy responded to the call and found 

Hager, who appeared to be in a great deal of pain, lying on his side with blood 

on his hands and clothes. Hager informed police that he had been stabbed and 

robbed by Hampton. Hager described Hampton as a skinny black male

wearing a brown vest. Hager also provided a description of Johnston and the 

person who rented the hotel room where the robbery occurred. Hager was 

taken to a hospital by ambulance where he received stitches for the wound to 

his hip. While Hager was at the hospital, he identified Hampton and Johnston 

in photo arrays.

[4] From Hager’s description of the person who rented the room where the robbery

occurred, the police were able to learn the room number where Hager was 

stabbed. Officers went to the room, and Hampton, who fit Hager’s description 
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of the perpetrator, opened the door. Officers asked Hampton who he was, and 

Hampton told them his name. Officers also identified Johnston as the woman 

described by Hager. Hampton and Johnston exited the room and stayed 

outside with Officer Franciscy while other officers entered the room to perform 

a protective sweep. In Johnston’s pocket, police found a debit card with 

Hager’s name on it and a folding knife with a wood grain handle and what 

appeared to be dried blood on the blade. Police contacted the person who 

rented the hotel room and received the person’s consent to search the room. 

On the bed, police found Johnston’s purse, which contained another debit card

with Hager’s name on it. Police also found a brown vest.

[5] In March 2019, the State charged Hampton with Count I, level 3 felony 

robbery; Count II, level 5 felony battery; and Count III, level 6 felony criminal 

recklessness. Hampton filed a motion to proceed pro se and a motion to waive 

jury trial. Following a hearing, the trial court granted both motions; the 

transcript of this hearing is not in the record before us. Hampton filed a motion 

to suppress all the physical evidence found in the hotel room, which the trial 

court denied. Hampton also filed a motion in limine to exclude his prior 

convictions. The State agreed with his request “with the exception of 

[Hampton’s] qualifying impeachable convictions.” Id. at 6. The trial court 

asked Hampton if he understood this response, and he answered affirmatively. 

The trial court then informed Hampton that it would grant his motion “with the 

exception of impeachable offenses.” Id.
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[6] A bench trial was held. At the close of the State’s evidence, the trial court 

asked Hampton what evidence he wanted to present. Hampton requested

incorporation of all the evidence that he presented at the suppression hearing, 

which the trial court granted. Id. at 90. The trial court asked Hampton if he 

had any other evidence or testimony that he wanted to present, and Hampton 

said that he did not. The trial court asked him whether he was resting his 

presentation. Hampton responded that he had presented everything “other 

than just to come out and say somebody else did this.” Id. at 91. The trial 

court asked Hampton if he wanted to testify. Hampton said that he did not 

want to testify. The trial court stated, “Okay, that – that’s your right sir. That’s 

fine.” Id. Hampton inquired who would cross-examine him if he did testify. 

The trial court replied, “Probably the Prosecutor’s Office. If you testify[,] they 

have the right to question you. Do you wish to testify? You have a right to not 

testify too.” Id. Hampton answered, “Yeah, I’ll testify.” Id. 

[7] The trial court then swore Hampton in and asked him what he wanted to say. 

Hampton said, “I could just – if the – if the State has any question that they

would like to ask me.” Id. at 91-92. The trial court explained that the State 

could only ask him questions based on what his testimony was, and that there 

was a “scope limitation, so if you don’t testify there’s nothing for them to ask 

you.” Id. at 92. Hampton began by saying that his testimony was exactly what 

he had been saying from the beginning. However, the remainder of his 

testimony was objected to by the State based on evidentiary rules, and the trial 

court sustained those objections. After Hampton rested his case, the trial court 
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told the prosecutor, “I don’t know if there’s anything for you to question him 

on based on that limited presentation.” Id. at 93. The prosecutor said he would 

like to ask Hampton about some impeachable offenses, which the trial court 

permitted. The State began questioning Hampton about his prior impeachable 

offenses, and Hampton asked the trial court to exclude his prior convictions 

based on his motion in limine preventing the State from raising them. The trial 

court explained that the State could not have raised them if he had not testified, 

but because he had testified, the State could bring them up for impeachment 

purposes. Id. at 94. Hampton said, “But you stated that the only things that 

they would have to ask me about would be the thing that I talked about. I 

didn’t bring up any criminal conversion.” Id. The trial court responded, “The 

fact that you’re testifying allows him to impeach you, sir.” Id. The trial court 

permitted the State to offer evidence of Hampton’s prior convictions for 

criminal conversion and burglary. At the conclusion of Hampton’s bench trial, 

the trial court found him guilty as charged. 

[8] A sentencing hearing was held. The trial court found that the nature of the 

crime, Hampton’s criminal history consisting of ten prior felonies and twentytwo misdemeanors, and prior failed efforts at rehabilitation were aggravating 

factors. The trial court found no mitigating factors. The trial court stated that

as to Counts II and III, “it was essentially one act[,]” and it would “merge”

Counts II and III into Count I. Id. at 111. The trial court sentenced Hampton 

to fifteen years for Count I, level 3 felony robbery. This appeal ensued.
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Discussion and Decision

Section 1 – Hampton has waived his claim that the trial court 

erred by failing to adequately advise him regarding the scope 

of cross-examination.

[9] Hampton contends that the trial court erred by failing to adequately advise him, 

a pro se defendant, regarding the scope of cross-examination, thereby

undermining his knowing, intelligent, and voluntary waiver of his 

constitutional right not to incriminate himself. We begin by noting that

although Hampton refers to his constitutional right against self-incrimination, 

he does not indicate whether he is relying on the United States Constitution or 

the Indiana Constitution. Further, he does not cite any cases that discuss the

right against self-incrimination; all the cases he cites involve the right to 

counsel. Also, the standard of review he provides is for sufficiency of the 

evidence, which does not apply to this issue.

1

 Based on these deficiencies, we 

conclude that he has waived this issue for review by failing to present a cogent 

argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in 

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

statutes, and the appendix or parts of the record on appeal); Casady v. State, 934 

1 In addition, he fails to place the standard of review in the argument section of his appellant’s brief as 

required by Indiana Appellate Rule 46(A)(8)(b). Although the paragraph pertaining to the standard of review 

contains citations to published cases, he attributes the paragraph to a memorandum decision in contravention 

of Indiana Appellate Rule 65(D). 
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N.E.2d 1181, 1190 (Ind. Ct. App. 2010) (failure to cite rules of evidence and 

case law waived claim of improperly admitted evidence), trans. denied (2011).

[10] Waiver notwithstanding, Hampton’s argument is unavailing. Hampton asserts 

that the trial court failed to explain that by testifying, Hampton “would waive 

his right to not incriminate himself and expose him to introduction of prior 

convictions for offenses of dishonesty as an exception to the relevant rules of 

evidence,” and that but for that failure, he would not have testified. Appellant’s 

Br. at 29. In support, he argues that the right against self-incrimination is as 

important as the right to counsel, which requires a trial court to advise a 

defendant of the dangers and disadvantages of self-representation so that any 

waiver of the right is done knowingly, voluntarily, and intelligently. Wirthlin v. 

State, 99 N.E.3d 699, 705 (Ind. Ct. App. 2018) (citing Poynter v. State, 749 

N.E.2d 1122, 1126 (2001)), trans. denied.

2

 

[11] Of course, a defendant’s right against self-incrimination is important and legally 

significant, but the right to counsel is intended to protect that and other 

constitutional rights. As our supreme court has stated, “The purpose of the 

Sixth Amendment guarantee of representation is to protect an accused from 

conviction resulting from his own ignorance of his legal and constitutional 

2 We observe that the trial court held a hearing on Hampton’s request to proceed pro se, and determined that 

he knowingly, intelligently, and voluntarily waived his right to counsel. Hampton does not suggest that the 

trial court erred in making this determination. “[A] defendant who chooses to proceed pro se must accept the 

burdens and hazards of self-representation.” Warr v. State, 877 N.E.2d 817, 823 (Ind. Ct. App. 2007), trans. 

denied (2008). 
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rights and to assure him the guiding hand of counsel at every step in the 

proceeding.” Koehler v. State, 499 N.E.2d 196, 199 (Ind. 1986). The right to 

counsel is “probably the most important right a defendant has because that right 

can affect a defendant’s ability to assert all his other rights and because most 

defendants do not have the professional legal skills necessary to represent 

themselves adequately.” Henson v. State, 798 N.E.2d 540, 543-44 (Ind. Ct. App. 

2003), trans. denied (2004). Accordingly, “to waive the constitutionally 

protected right to counsel, a defendant ‘must knowingly and intelligently forgo 

those relinquished benefits’ provided by counsel, and be advised of the potential 

pitfalls surrounding self-representation so that it is clear that ‘he knows what he 

is doing and [that] his choice is made with eyes open.’” Kubsch v. State, 866 

N.E.2d 726, 736 (Ind. 2007) (quoting Faretta v. California, 422 U.S. 806, 835 

(1975)), cert. denied (2008). “Because the defendant is the one who must suffer 

the consequences of his decision as to counsel, he is entitled to choose his 

advocate–a lawyer or himself.” Houston v. State, 553 N.E.2d 117, 118 (Ind. 

1990). However, “a defendant who chooses to proceed pro se must accept the 

burdens and hazards of self-representation.” Warr v. State, 877 N.E.2d 817, 823 

(Ind. Ct. App. 2007), trans. denied (2008). 

[12] Here, Hampton requested to proceed pro se, and the trial court held a hearing 

on the matter and determined that he knowingly, intelligently, and voluntarily 

waived his right to counsel. That process ensured that Hampton was aware 

that by choosing to represent himself, there was a danger that he would be 

unable to protect his rights as well as a skilled professional. Hampton does not 
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suggest that the trial court erred in making this determination. Yet, Hampton 

would have us impose a duty on the trial court to advise a pro se defendant of 

the advantages and disadvantages of taking the stand to ensure that the 

defendant is knowingly, intelligently, and voluntarily waiving his or her right 

against self-incrimination. However, whether a particular defendant should 

testify in a given case is a fact-sensitive determination based on a myriad of 

considerations that will often boil down to a question of strategy. To require a 

trial court to engage in such a question improperly places the trial court in the 

role of a defendant’s attorney. Accordingly, we decline Hampton’s invitation 

to impose upon the trial court a duty to advise a pro se defendant regarding the 

advantages and disadvantages of testifying. Moreover, we observe that the trial 

court did not say anything erroneous, and that Hampton had indicated that he 

understood when the trial court granted his motion in limine to exclude his 

prior convictions with the exception of his qualifying impeachable convictions. 

We find no error here. Therefore, we affirm Hampton’s conviction.

Section 2 – Hamptons has failed to carry his burden to prove 

that his sentence is inappropriate.

[13] Hampton next asks us to reduce his sentence pursuant to Indiana Appellate 

Rule 7(B), which states, “The Court may revise a sentence authorized by statute 

if, after due consideration of the trial court’s decision, the Court finds that the 

sentence is inappropriate in light of the nature of the offense and the character 

of the offender.” When reviewing a sentence, our principal role is to leaven the 

outliers rather than necessarily achieve what is perceived as the correct result in 
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each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not 

look to determine if the sentence was appropriate; instead we look to make sure 

the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 

2012). “[S]entencing is principally a discretionary function in which the trial 

court’s judgment should receive considerable deference.” Cardwell, 895 N.E.2d 

at 1222. “Such deference should prevail unless overcome by compelling 

evidence portraying in a positive light the nature of the offense (such as 

accompanied by restraint, regard, and lack of brutality) and the defendant’s 

character (such as substantial virtuous traits or persistent examples of good 

character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). In conducting 

our review, we may consider all aspects of the penal consequences imposed by 

the trial court in sentencing, i.e., whether it consists of executed time, 

probation, suspension, home detention, or placement in community 

corrections, and whether the sentences run concurrently or consecutively. 

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). In addition, as we assess 

the nature of the offense and character of the offender, “we may look to any 

factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. 

Ct. App. 2013). Hampton has the burden to show that his sentence is 

inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on 

reh’g, 875 N.E.2d 218.

[14] Turning first to the nature of the offense, we observe that “the advisory sentence 

is the starting point the Legislature selected as appropriate for the crime 

committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Hampton was 
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convicted of a level 3 felony, which has a sentencing range of three to sixteen 

years and an advisory sentence of nine years. Ind. Code § 35-50-2-5. Hampton 

received a fifteen-year executed sentence for level 3 felony robbery. Level 3 

felony robbery is defined as a knowing or intentional taking of property from 

another person or from the presence of another person by using or threatening 

the use of force on any person or by putting any person in fear resulting in 

bodily injury to any person other than a defendant. Appellant’s App. Vol. 2 at 

2; Ind. Code § 35-42-5-1(a). Here, Hampton, armed with a deadly weapon,

deliberately sought out Hager to take money from him. Hampton not only 

used the knife to threaten force, but also stabbed Hager in the hip, drawing 

blood and resulting in a wound requiring stiches. Hampton and his accomplice 

took Hager’s bank cards in addition to his money. Thus, the nature of the 

crime supports a sentence above the advisory.

[15] As to Hampton’s character, at the age of thirty-five, he already has ten prior 

felony convictions and twenty-two prior misdemeanor convictions. His 

criminal history includes convictions for burglary, theft, conversion, possession 

of methamphetamine, possession of a controlled substance, possession of 

paraphernalia, domestic battery, resisting law enforcement, and false informing. 

Appellant’s App. Vol. 2 at 118-23. The current offense is similar in nature to 

his previous crimes but even more violent. At the time of sentencing, Hampton 

had pending drug charges in Allen County and an active failure-to-appear 

warrant out of a Cass County paternity case. Hampton contends that the trial 

court should have considered other more lenient sentencing options, but he has 
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been afforded such opportunities before, and they have clearly been ineffective 

in modifying his behavior. We conclude that Hampton has failed to carry his 

burden to show that his sentence is inappropriate based on the nature of the 

crime and his character. Accordingly, we affirm his sentence.

Section 3 – Remand is necessary for the trial court to vacate 

the convictions on Counts II and III. 

[16] As a final matter, we sua sponte address what appears to be a double jeopardy 

violation. See Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015)

(stating that double jeopardy violations implicate fundamental rights, and this 

Court may address such violations sua sponte), trans. denied (2016). Our review 

of the transcript suggests that the trial court sought to “merge” the three counts 

against Hampton based on double jeopardy grounds. Tr. Vol. 2 at 111. The 

abstract of judgment provides that the disposition for both Counts II and III is 

“Conviction Merged[.]” Appealed Order (Abstract of Judgment) at 1. The 

judgment of conviction states that the trial court found Hampton guilty of 

“Count I, Robbery, a Level 3 Felony; Count II, Battery, a Level 5 Felony; and 

Count III, Criminal Recklessness[,] a Level 6 Felony.” Appealed Order 

(Judgment of Conviction) at 1. The judgment of conviction also shows that for 

purposes of sentencing, Counts II and III “merge” with Count I. Id.

[17] We observe that “a double jeopardy violation occurs when judgments of 

conviction are entered and cannot be remedied by the practical effect of 

concurrent sentences or by merger after conviction has been entered.” Payton v. 

State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004) (quotation marks omitted), 
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trans. denied (2005); see also Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App. 

2017) (concluding that merger of convictions was insufficient to remedy double 

jeopardy violation); West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014)

(same), trans. denied (2015); Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. 

App. 2013) (same). Therefore, we remand this cause to the trial court with 

instructions to vacate the convictions on Counts II and III and enter judgment 

of conviction and sentence only upon Count I.

[18] Affirmed and remanded.

May, J., and Pyle, J., concur.