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: ATTORNEYS FOR APPELLEE:

MARK K. LEEMAN GREGORY F. ZOELLER

Carroll County Public Defender Attorney General of Indiana

Leeman Law Offices

Logansport, Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ROBERT D. BOWEN, )

)

Appellant-Defendant, )

)

vs. ) No. 08A02-1206-CR-504

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CARROLL CIRCUIT COURT 

The Honorable Donald E. Currie, Judge 

Cause No. 08C01-1007-FB-8

February 18, 2013

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

Robert D. Bowen (“Bowen”) was convicted after a jury trial of unlawful 

possession of a firearm by a serious violent felon,

1

a Class B felony, dealing in a schedule 

IV controlled substance2as a Class C felony, possession of a controlled substance3as a 

Class D felony, and possession of marijuana4as a Class A misdemeanor and was 

sentenced to an aggregate term of fourteen years in the Department of Correction. 

Bowen appeals and raises the following restated issues for our review:

I. Whether the trial court abused its discretion in finding that Bowen 

was not indigent and therefore not appointing counsel to represent 

Bowen until eight months prior to trial; and

II. Whether the trial court abused its discretion in sentencing Bowen to 

consecutive sentences.

We affirm.

FACTS AND PROCEDURAL HISTORY

On June 30, 2010, Bowen’s daughter-in-law called the Delphi Police Department 

and informed them she had observed Bowen and her husband smoking marijuana inside 

Bowen’s appliance repair shop earlier that day. She also told the police that there were 

several guns inside the shop and that she had previously seen Bowen holding a gun. The 

police obtained a search warrant for Bowen’s shop and executed that warrant on July 2, 

2010. Pursuant to that search, the police seized various items from the shop, including 

 

1

See Ind. Code § 35-37-4-5.

2

See Ind. Code § 35-48-4-3.

3

See Ind. Code § 35-48-4-7.

4

See Ind. Code § 35-48-4-11.
3

guns, cash, an electronic scale, marijuana, and pills, which were later identified as 

alprazolam, a schedule IV controlled substance. There were several individuals, 

including Bowen and his son, present at the time the warrant was executed. Two of these 

individuals had alprazolam pills in their pockets. When questioned by the police, Bowen 

admitted that the shop and property were his, that he lived in a trailer located in a 

building attached to the shop, and had keys to the shop. Tr. at 259-60. Bowen also 

admitted that he knew the firearms were on his property and that no one was allowed on 

the property without his knowledge. Id. at 260-61.

The State charged Bowen with unlawful possession of a firearm by a serious 

violent felon, dealing in a schedule IV controlled substance, possession of a controlled 

substance, two counts of receiving stolen property, and possession of marijuana. At 

Bowen’s initial hearing, on July 3, 2010, Bowen informed the trial court that he wanted 

to hire his own attorney. Id. at 13, 16. At that time, Bowen’s bond was set in the sum of 

$50,000 property or surety plus $500 cash. On July 15, 2010, Senior Judge Kathy Smith 

held a hearing regarding the appointment of counsel and appointed Patrick F. Manahan 

(“Manahan”) as counsel for Bowen in this case. Manahan was later permitted, on 

September 27, 2010, to withdraw as Bowen’s counsel. On July 26, 2010, the property 

bond, pledging real estate owned by Bowen as security, was received by the clerk of the 

trial court.

At the initial hearing for the amended information, held on October 20, 2010, 

Bowen requested the appointment of counsel. The trial court questioned Bowen 

regarding his financial situation, and determined that, because Bowen had real property 
4

with $50,000 in equity, he was not indigent, and the trial court refused to appoint a public 

defender for Bowen. Id. at 22-24, Appellant’s App. at 47. At this hearing, Bowen also 

filed a pro se motion to suppress. 

On November 12, 2010, Bowen filed a motion to continue because he had not yet 

been able to hire an attorney. At a hearing on February 23, 2011, the State informed the 

trial court of the problems it was having dealing with Bowen because he did not have an 

attorney and had not entered an appearance for himself in the case. Tr. at 26-27. Bowen 

told the court he had contacted attorneys but had not yet been able to retain the services 

of an attorney. Id. at 28. The trial court continued the proceedings. At a status hearing, 

on April 26, 2011, Bowen again requested that the trial court appoint counsel to represent 

him, but admitted to the trial court that his financial situation had not changed. Id. at 31. 

Because Bowen had equity in the real property that he owned, the trial court again found 

that he was not indigent and refused to appoint counsel. Id. at 31-32. 

On May 13, 2011, the trial court held a hearing on Bowen’s motion to suppress. 

Bowen again complained about not having appointed counsel, and the trial court 

reaffirmed its ruling that Bowen was not indigent. Id. at 38-41. Because Bowen did not 

present any evidence in support of his motion to suppress, the trial court denied the 

motion. On June 2, 2011, the trial court granted Bowen’s motion to continue in order to 

obtain counsel.

On August 23, 2011, the trial court held a hearing on the State’s motion to revoke 

Bowen’s bond, and the State presented evidence that Bowen had been charged with a 

new criminal offense. Bowen again appeared without counsel. The trial court granted 
5

the State’s motion and revoked Bowen’s bond. Bowen again requested that counsel be 

appointed for trial, and the trial court again inquired into Bowen’s financial situation. No 

discussion occurred regarding the real property owned by Bowen. At the conclusion of 

the inquiry, the trial court found Bowen to be indigent and appointed Ian O’Keefe

(“O’Keefe”) to represent Bowen. 

Prior to trial, the State dismissed one of the receiving stolen property counts. A 

three-day jury trial began on April 23, 2011, with Bowen being represented by O’Keefe. 

At the conclusion of the trial, the jury found Bowen not guilty of the remaining Class D 

felony receiving stolen property count and guilty of the other charged offenses. At the 

sentencing hearing, the trial court, after considering the pre-sentence investigation report 

and the evidence and arguments presented at the hearing, imposed a sentence of ten years 

for Bowen’s conviction for Class B felony unlawful possession of a firearm by a serious 

violent felon, four years for his conviction for Class C felony dealing in a schedule IV 

controlled substance, one-and-a-half years for his conviction for Class D felony 

possession of a controlled substance, and one year for his conviction for Class A 

misdemeanor possession of marijuana. The trial court ordered the sentences to be served 

concurrently, except for the sentence for dealing in a schedule IV controlled substance, 

which was ordered to be served consecutively to the sentence for unlawful possession of 

a firearm by a serious violent felon, for a total of fourteen years. Bowen now appeals.

DISCUSSION AND DECISION

I. Appointment of Counsel
6

In general, a trial court has discretion to determine whether a defendant is 

indigent, and we are reluctant to override that discretion on appeal. Reese v. State, 953 

N.E.2d 1207, 1210 (Ind. Ct. App. 2011) (citing Redmond v. State, 518 N.E.2d 1095, 1095 

(Ind. 1988)). However, the trial court does not have the discretion to deny counsel to an 

indigent defendant. Gilmore v. State, 953 N.E.2d 583, 587 (Ind. Ct. App. 2011) (citing 

Graves v. State, 503 N.E.2d 1258, 1262 (Ind. Ct. App. 1987)).

Bowen argues that the trial court abused its discretion when it failed to find him 

indigent and appoint counsel to represent him in the initial stages of his case. He 

contends that these were critical stages of the trial proceedings, and the refusal to appoint 

him counsel at those times constituted a denial of his right to counsel. Bowen claims that 

he qualified for appointed counsel because he was indigent, and the assets he had were 

not liquid and using them to obtain counsel could impose substantial hardship on himself 

and his family. He further argues that, even if he was not indigent, the trial court did not 

adequately establish that fact on the record because the trial court failed to engage in a 

thorough examination of Bowen’s total financial picture. 

Because we are dealing with such a fundamental constitutional right, the record in 

each case must show that careful consideration commensurate with the right at stake has 

been given to the defendant. Reese, 953 N.E.2d at 1210 (quoting Moore v. State, 273 

Ind. 3, 7, 401 N.E.2d 676, 678 (1980)) (internal quotation marks omitted). The defendant 

does not have to be totally without means to be entitled to counsel. Gilmore, 953 N.E.2d 

at 587. If he legitimately lacks the financial resources to employ an attorney, without 

imposing a substantial hardship on himself or his family, the court must appoint counsel 
7

to defend him. Id. The determination as to the defendant’s indigency is not to be made 

on a superficial examination of income and ownership of property but must be based on 

as thorough an examination of the defendant’s total financial picture as is practical. Id.

The record must show that the determination of ability to pay includes a balancing of 

assets against liabilities and a consideration of the amount of the defendant’s disposable 

income or other resources reasonably available to him after the payment of his fixed or 

certain obligations. Id.

In the present case, Bowen initially informed the trial court that he intended to hire 

a private attorney to represent him. At a subsequent hearing, Senior Judge Kathy Smith

appointed attorney Manahan to represent Bowen. However, Manahan was permitted to 

withdraw his appearance, and at a hearing on October 20, 2010, Bowen requested that 

counsel be appointed for him. At that time, the trial court held a hearing on Bowen’s 

request for counsel.

The trial court questioned Bowen regarding his financial condition, and Bowen 

stated he had not been employed since 2001. Tr. at 22. Bowen stated that his wife was 

employed part-time and that she provided financial support for them. Id. at 22-23. 

Bowen informed the trial court that the family received food stamps. Id. at 23. He also 

admitted that he owned a rental property that brought in approximately $335 per month. 

Id. Bowen also stated that he owned real property that had a value of at least $50,000, 

although at that time the property was being used for Bowen’s bond. Id. Bowen told the 

trial court that he had not yet talked with an attorney about his case. Id. The trial court 

found that Bowen was not indigent, based on his ownership of real property that had a 
8

value of at least $50,000, and, therefore, refused to appoint counsel for him at public 

expense. Id. at 23-24. 

The trial court did not abuse its discretion in not finding Bowen to be indigent at 

that time. Bowen’s ownership of real property, on its own, shows that he was not 

indigent. See Gilmore, 953 N.E.2d at 588 (defendant’s social security and ownership of 

real property, valued at $54,000, standing alone, could sustain finding that defendant was 

not indigent). Additionally, we find it significant that Bowen failed to tell the trial court 

about his appliance repair business and the income he derived from that business. Tr. at 

295-96, 378; Appellant’s App. at 218. Therefore, Bowen’s statement to the trial court 

that he had not been employed since 2001 is contradicted by the fact that he was selfemployed through his appliance repair business. 

As to his later requests for counsel to be appointed, Bowen told the trial court that 

his financial situation had not changed. Tr. at 31-32. At the hearing on his motion to 

suppress, Bowen had failed to retain counsel and complained to the trial court about not 

appointing him counsel. Id. at 38-39. The trial court explained to Bowen that his 

ownership of real property demonstrated that he was not indigent and that it was his 

choice to use the property to obtain an attorney or not. Id. at 39-40. The facts presented 

to the trial court show that Bowen had the financial ability to hire an attorney but chose 

not to because he was worried he may not be able to pay off any loan he took out on the 

property. Id. at 39-40. Further, Bowen failed to inform the trial court of his income from 

his appliance repair business. Under the facts of this case, the trial court did not abuse its 
9

discretion when it found Bowen was not indigent for the purpose of appointing counsel 

for the motion to suppress hearing and prior to the hearing. 

Later, when Bowen notified the trial court that he had spoken with an attorney and 

was unable to reach any financial arrangement with the attorney, the trial court appointed 

counsel for Bowen. Id. at 28, 54-60. Attorney O’Keefe entered an appearance for 

Bowen on August 25, 2011, and Bowen’s trial was not held until April 23, 2012. 

Bowen’s counsel had eight months to prepare for trial, and at trial, counsel made 

objections to the admission of evidence based on Bowen’s previous motion to suppress. 

Id. at 128-29, 254. Therefore, the fact that Bowen did not have counsel appointed when 

he filed his motion to suppress did not negatively impact Bowen because he had counsel 

at the time that the evidence was presented at trial, and his counsel objected to the 

admission of the evidence at trial. We conclude that the trial court did not abuse its 

discretion when it found, based on his ownership of real property with a value of at least 

$50,000, he was not indigent for the purpose of appointing counsel. Bowen chose not to 

use this property to obtain counsel, so he was without counsel at certain stages of his case 

at his own choosing. When Bowen informed the trial court that he had attempted to 

obtain private counsel, but was unable to do so, the trial court appointed counsel, and 

Bowen was represented by counsel for the duration of his case. Under the circumstances 

of this case, the trial court did not abuse its discretion, and Bowen was not denied his 

right to counsel.

II. Sentencing
10

Sentencing decisions rest within the sound discretion of the trial court and are 

reviewed on appeal only for an abuse of discretion. Webb v. State, 941 N.E.2d 1082, 

1088 (Ind. Ct. App. 2011) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), 

clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007)), trans. denied. An 

abuse of discretion occurs if the decision is clearly against the logic and effect of the facts 

and circumstances before the court. Id. A trial court must enter a sentencing statement 

that includes reasonably detailed reasons for imposing a particular sentence. Id. The 

purpose of this rule is to guard against arbitrary sentencing and to provide an adequate 

basis for appellate review. Id. The decision to impose consecutive or concurrent 

sentences is within the trial court’s sound discretion and is reviewed only for an abuse of 

discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). A single 

aggravating circumstance may support the imposition of consecutive sentences. Id.

Bowen argues that the trial court abused its discretion when it imposed 

consecutive sentences for two of his convictions. He contends that the trial court’s 

sentencing statement was inadequate because it lacked reasonable details necessary to 

safeguard against an arbitrary sentence. He also asserts that the trial court failed to 

articulate a basis for imposing consecutive sentences.

Bowen is correct that a trial court is required to enter a reasonably detailed 

sentencing statement that includes the reasons for imposing a certain sentence. Webb, 

941 N.E.2d at 1088. A trial court must also articulate at least one aggravating 

circumstance in order to impose consecutive sentences. Rhoiney v. State, 940 N.E.2d 

841, 846 (Ind. Ct. App. 2010), trans. denied. When reviewing the sufficiency of the 
11

sentencing statement, we examine both the trial court’s written and oral statements. 

Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). 

Here, the trial court did not specifically state, either in its written or oral 

sentencing statement, any aggravating or mitigating circumstances, and the trial court 

imposed the advisory sentence for all of the convictions. Therefore, this would make it 

seem that the trial court found the aggravating and mitigating circumstances to be in 

equipoise, which would generally prohibit the imposition of consecutive sentences. See 

Lopez v. State, 869 N.E.2d 1254, 1258 (Ind. Ct. App. 2007) (when aggravating and 

mitigating factors are in equipoise, “our Supreme Court has said that a trial court may not 

impose consecutive sentences”), trans. denied. Additionally, when a trial court failed to 

provide an explanation for imposing consecutive sentences, we may remand for 

resentencing to impose concurrent sentences. Murrell v. State, 960 N.E.2d 854, 860 (Ind. 

Ct. App. 2012). 

However, we conclude that, in this case, the trial court’s sentencing statements 

allow us to infer that at least one aggravating circumstance was considered by the trial 

court in imposing the consecutive sentences. In both its written and oral sentencing 

statements, the trial court stated that, in making it sentencing decision, it considered the 

pre-sentence investigation report and the evidence and arguments presented during the 

sentencing hearing. Tr. at 394; Appellant’s App. at 174. In the written sentencing 

statement, the trial court also states it considered the sentencing criteria found in Indiana 

Code section 35-38-1-7.1 in making its decision. Appellant’s App. at 174. The presentence investigation report detailed Bowen’s extensive criminal history, which spanned 
12

over thirty years and included multiple felony convictions, and lengthy substance abuse 

history. Id. at 212-16, 219. A trial court is permitted to consider a defendant’s criminal 

history as an aggravating circumstance. Ind. Code § 35-38-1-7.1(a)(2). We conclude

that based on the trial court’s written and oral sentencing statements, which detailed that 

the trial court considered the pre-sentence investigation report in reaching its sentencing 

decision, it can be inferred that the trial court imposed consecutive sentences based upon 

Bowen’s extensive criminal history. We therefore find that the trial court did not abuse 

its discretion in sentencing Bowen to consecutive sentences. However, we want to 

remind the trial court that criminal defendants are entitled to understand the trial court’s 

reasoning behind the defendants’ sentencing orders. We therefore caution the trial court 

to give due consideration to the requirement that a sentencing statement should include 

reasonably detailed reasons for imposing a particular sentence in future orders.

Affirmed.

MATHIAS, J., and CRONE, J., concur.