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 AP PELLANT : ATTORNEYS FOR APPELLEE :

MARK OLIVERO GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana



## IN THE
COURT OF APPEALS OF INDIANA

T ERMAINE T. FIELDS

, ) ) Appellant

- Defendant

, ) )

vs. ) No. 02A03

- 1206

- CR

- 278 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Hon o rab l e Wendy W. Davis , Judge

Cause No. 02D05

- 1107

- FD

- 929

April 9, 2013

MEMORANDUM DECISION

- NOT FOR PUBLICATION

MAY, Judge2

Termaine T. Fields was convicted , after a jury trial, of Class D felony residential

entry 1 and Class A misdemeanor domestic battery

, 2 and he was found to be an habitual

offender. 3 His appeal raises two issues:

1. Whether the trial court committed reversible error b ecause it did not conduct a formal initial hearing on the habitual o ffender count, and

2. Whether the trial court abused its discretion because it did not find certain mitigating factors when sentencing Fi elds.

We affirm.

FACTS AND PROCEDURAL HISTORY

Fields was charged on July 8, 2011

, with Class D felony residential entry and Class A

misdemeanor domestic battery. On July 26

, the trial court scheduled Fields’ jury trial for

October 19 and a pre

- trial c onference for September 26. On September 9, t he State alleg ed

Fields was a n habitual offender. The trial court ordered the initial hearing on the habitual

offender count would occur during the hearing set for September 26.

Fields appeared at that hear ing with his counsel . B oth the S tate and defense counsel

indicated they were ready for trial. Neither the parties nor the trial court mentioned the

pending habitual offender count.

Then, o n the day of trial, defense counsel advised the court Fields did not remember

having a n initial hearing on the habitual offender count. The trial court asked Fields if he

had read the habitual offender count, and he admitted he had. The following discussion took

1 Ind. Code § 35

- 43

- 2

- 1.5.

2 Ind. Code § 35

- 42

- 2

- 1.3.

3 Ind. Code § 35

- 50

- 2

- 8.3

place:

[Defense Counsel]: Yes. Judge, the State filed an Habitual. [Fields] swears

he doesn’t remember having an initial hearing on that. Thank you.

And it was filed

- I can’t read the file stamp. But [Prosecutor ’s ], certificate of service was nine (inaudible), so I’m assuming that’s the filing date. That is the 10 th day, but again, [Fields] just doesn’t remember. I guess [Fields] doesn’t remember having that read to him.

COURT: So what are you asking me to do this morning? [Defense Counsel]: I’m just bringing that to the Court’s attention, if the Court

w ants to read it to him. He knows the penalties. He just wanted you to know that. He doesn’t remember having the initial.

COURT: Mr. Fields?

MR. FIELDS: Yes, ma’am.

COURT: Good morning, Mr. Fields. In the abundance of caution, I will go ahead and

- - y ou want me to read the Habitual charges to you or have you already read them yourself?

MR. FIELDS: I’ve read them.

COURT: All right. And you understand the range of punishment?

MR. FIELDS: A

COURT : Did you talk to [defense counsel] about [the habitual offender count]?

MR. FIELDS : Yes.

COURT : All right. [Defense Counsel] : For what

- for what it was worth, he wanted you to know

that.

COURT : Okay. So do you have any questions regarding the

Habitual Offender enhancement?

MR. FIELD [s]: Yeah. I never was

- - like I said, I had a hearing on the

26 th for it, but I can’t (inaudible).

REPORTER : I can’t hear you. I’m sorry.

COURT : Speak up a little bit.

MR. FIELDS : I said that on the 26 th I had a

- - supposedly had a hearing

for it. On the 26 th only thing we talked about was the

- - the lawyer mentioning a motion for

- - motion for discovery and said

- - asked a

- - Judge asked if we set, ready for trial. I said yes. Actually the State said yes and that was the end of it.

* * * * *

STATE: . . . [T]he fact that he hasn’t had his initial hearing doesn’t change the fact that the State is ready to proceed on it today. If he would like a formal initial hearing, he can have it today.

. . . Furthermore, it was filed on September 9 th and he has an attorney and4 I’m su re [defense counsel] would have explained to him the penalties. So he’s not prejudiced by the fact that he has yet to have initial hearing on the Habitual Offender at this point.

COURT : [Defense counsel], anything further? [Defense counsel]: No, ma’am.

COURT : All right. Does he want a formal hearing? I just asked him if he understands the range of punishment and that he’s read it and understands it and he said yes, but is that correct? (N o response.)

COURT : Okay. So do we need to do anything furthe r then? [ Defense counsel ] : No, ma’am.

( Jury Trial Tr. at 4

- 6.)

While the jury was deliberating his guilt, Fields informed the trial court that he would

“stipulate” to the Habitual Offender allegation if the jury found him guilty of residenail entry

and d omestic battery . ( Id . at 162.) T he jury found Fields guilty of those two crimes

, and

the n the following conversation took place:

COURT : All right, the jury having found the Defendant guilty of Count I and Count II, I will enter judgments of conviction o n both counts. We’ll move into the second phase, which is the Habitual

Offender. . . .

* * * * *

COURT : [Defense counsel] do you need more time with your client before proceeding? [Defense counsel]: I’ll wait till he regains his composure, Judge.

* * * * *

COURT : Mr. Fields, are you ready to proceed? (No response.)

COURT : As you know, the State has filed a notice of its intent to seek Habitual Offender enhancement. At this time, Mr. Fields, I would ask you, are you the same Mr. Fields that on or abou t July 15 th , 1996 in the County of Allen, State of Indiana, did commit felony criminal act,

to

- wit: Attempt Theft, a Class D Felony and that said Defendant was in

Cause Number 02D04

- 9607

- FC

- 324 [sic] convicted and sentenced for

the commission of said felo ny on the 6 th day of December, 1996 in the County of Allen, Fort Wayne, Indiana?

* * * * *5

MR. FIELDS : Yes.

COURT : All right. Additionally, are you same Termaine T. Fields

that on or about the 17 th day of September, 2002 in the County of Allen,

State of Indiana, did commit another unrelated felony criminal act, to

wit: carrying a Handgun without a License, a Class C Felony. That

said Defendant was in Cause Number 02D04

- 0209

- FC

- 170 convicted and sentenced for the commission of said felony on the 17 th day of March, 2003 in the Allen County Superior Court, Fort Wayne, Indiana?

MR. FIELDS : Yes.

( Id. at 163

- 65.) The trial court then entered a judgment of conviction on the habitual

offender count.

At the sentencing hearing on November 9, 2011 , t he court a sk ed Fields whether he

was satisfied with the representation he received from counsel :

MR. FIELDS: No . . . There’s a lot of things that happened that day [of trial that] I was not aware of.

COURT : Like what?

MR. FIELDS : The fact that

. . . I didn’t know nothing about a plea bargain. Second, I was

- - feel like I was

- - I was forced into the trial not knowing nothing and the Habitual enhancement. I didn’t know anything about that until the day before trial.

COURT : All right. You admitted to that. You a nd I discussed the Habitual enhancement and you admitted to that.

* * * * * [ Defense counsel ] : . . . If he

- if he didn’t have an initial hearing on [the habitual enhancement] originally when it was filed, then perhaps that’s an issue down the road, but

- - COURT : Well, I have in my file and I do recall this

- - bringing it to my attention . . . and it looks like we did, we did his initial hearing on the day of the jury trial and I believe

- - it’s not in my notes, but I would assume you told me after the Habi tual

- - after the initial hearing, I think there was some issue the day of trial that he didn’t have his initial hearing, so we conducted one according to my notes. I don’t know

what the record was. [ Defense counsel ] : We did.

COURT: Okay. Or he admitted

- or waived it. Whatever we did, but regardless when I asked both sides then if we were ready for trial

ready to proceed to trial after that.6

[Defense counsel]: Yes, ma’am. That’s my response to [Fields’] complaints.

( Sentencing Tr. at 4

- 7.)

T he court heard testimony from Fields and arguments of counsel regarding

aggravating and mitigating circumstances. Fields testified that he wanted to apologize to his

wife and his parents, and the trial court confirmed that he was not admitting he committ ed the

of fenses. The court went on:

In weighing the aggravators and mitigators in this case I’ll start with the mitigators in which I find zero. I don’t even hear any remorse other than the

fact

- - which is why I asked you the question, other than the fact you’ve had a hard life. Many people do. And you’re sorry now that you got caught, but I heard no remorse regarding the facts and circumstances nor your past history. As aggravating circumstances I look to your past criminal history. I note and the prosecutor has outlined them completely. I’ve made the Pre

- Sentence Investigation Report a part of the record so that Pre

- Sentence Investigation Report outlines them ful l y. However, in summation there’s three juvenile delinquenc e [sic] adjudications. You were pla ced on informal adjustment three times. As a juvenile, your juvenile probation was revoked once and you were sent to the Indiana Boys’ School. However, as an adult and candidly when I look at your age of 34 years old, you’re not that old. As an adult

yo u’ve had 26 prior misdemeanor convictions and six prior felony offenses.
You’ve have [sic] five misdemeanor suspended sentences modified and four misdemeanor suspended sentence [s] revoked. You’ve had two terms of your felony probation revoked and you’ve been found in violation of parole four times. I also note that you admitted to being a member of a gang which show s

me your

- your character candidly. I will show that prior attempts at

- - all prior attempts at rehabilitation have failed. Additionally in looking at the character of Mr. Fields, I find that as an aggravator. . . . I note as your character as well that you asked the victim to lie for you. . . . As I look to the IRAS score which helps me determine whether or not I place you in prison or proba tion or the length of time, I note that as the prosecutor pointed out, you are very high risk, 34 plus, wh ich we don’t see ve ry often in the Court. I will show that the aggravating circumstances drive your sentence far above the advisory and I

will senten ce you in Count I the Residential Entry, to three years in the Indiana Department of Corrections [sic] . Sentence you to Count II, Domestic Battery, a Class A Misdemeanor to one year in the Indiana Department of Corrections [sic] . I will enhance that sent ence with the Habitual Offender tacking on an7

additional four and a half years.

( Id . at 21

- 23.) All counts were ordered served consecutive ly , for an aggregate sentence of

eight and a half years

.

DISCUSSION AND DECISION

1. Habitual Offender Enhancemen t

Fields argues th ere was reversible error because a formal initial hearing was not held

on his habitual offender enhancement. Fields is correct that “[ a n] habitual offender charge is

subject to the same procedural safeguards as any criminal offense

, ” La mpkins v. State , 682

N.E.2d 1268, 1273 (Ind. 1997), modified on reh’g on other grounds , 685 N.E.2d 698 (Ind.

1997) , but “ failure to hold an initial hearing on the habitual offender count is not reversible

error unless it results in prejudice. ” Id . Even if a defendant did not have actual knowledge

of the charge, prejudice does not necessarily result if defense counsel had knowledge. Id . at

1274.

While a formal initial hearing was not held, Fields’s counsel stated he had read and

discussed the habitual offender charge and potential penalties with Fields. The State and the

trial court both indicated a willingness to have a formal initial hearing, and the lengthy

discussion concluded this way:

COURT: All right. Does he want a formal hearing? I just as ked him if he understands the range of punishment and that he’s read it and understands it and he said yes, but is that correct? (No response.)

COURT: Okay. So do we need to do anything further then? [Defense counsel]: No, ma’am.8

(Jury Trial Tr. at 4

- 6. ) There was no reversible error

. See Lampkins , 682 N.E.2d at 1274

(holding no reversible error because counsel knew about the charge at least four days before

the trial).

2. Mitigating Circumstances

Fields argues the trial court abused its discretion in sentencing him to the maximum

possible sentence of eight and a half years because i t ignored significant mitigating factors.

Sentencing decisions rest within the sound discretion of the trial court, and we review those

decisions only for an abuse of di scretion. Anglemyer v. State , 868 N.E.2d 482, 490 (Ind.

2007), modified on reh’g on other grounds (Ind. 2007). An abuse of discretion has occurred

if a decision was “clearly against the logic and effect of the facts and circumstances before

the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id

.

A a trial court is “required to identify all significant mitigating circumstances.” Id . at

492

- 93. To demonstrate a trial court overlooked a valid mitigator, an appellant mu st

demonstrate the evidence of such mitigator was “both significant and clearly supported by

the record.” Id . at 493.

Fields argues the court should have found as a mitigator his admission he was an

habitual o ffender

, as that relieved the State of the burden of proving his prior convictions. 4

Our Indiana Supreme Court has explained:

4 The State asserts Fields waived this argument beca use he did not assert it at the sentencing hearing. Fields’ admission to the habitual offender allegation was, in essence, a plea of guilty to that allegation . A n appellant may raise a guilty plea as a mitigator for the first time on appeal because “a se ntencing court is inherently aware of the fact that a guilty plea is a mitigating circumstance.” Anglemyer v. State , 875 N.E.2d 218, 220 (Ind. 2007). We therefore reject the State’s allegation that Fields waived this argument.9

[A] defendant who pleads guilty deserves ‘some’ mitigating weight to be given to the plea in return. But an allegation that the trial court failed to identify or

find a mitigating factor requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant. And the significance of a guilty plea as a mitigating

factor varies from case to case. For example, a guilty plea may not be significantly mitigating when it does not demonstrate the defendant’s acceptance of responsibility or when the defendant receives a substantial benefit in return for the plea.

Anglemyer v. State , 875 N

. E.2d 21 8, 220

- 21 (Ind. 2007) (internal citations omitted)

.

After the jury found Fields guilty of residential entry and domestic battery, Fields pled

guilty to being an habitual offender. Fields ’ criminal history included six felony convictions

and the State w ould presumably need only to print court documents to demonstrate h e was an

habitual offender . W e therefore cannot hold the trial court abused its discretion by

overlooking significant evidence of a mitigator. See Edrington v. State , 909 N.E.2d 1093,

110 1 (Ind. Ct. App. 2009) (guilty plea does not rise to level of significant mitigator when

“evidence against him is such that the decision to plead guilty is merely a pragmatic one”),

trans. denied

.

Fields also argues the court should have found a mitigat or in the remorse he

demonstrated by telling his parents he was sorry. However, when given the opportunity to

clarify whether he was sorry for the crimes for which he was convicted, Fields continued to

claim he had not committed the crimes. As a result, we cannot say that Fields exhibited such

significant remorse that the trial court was required to find it as a mitigating factor. See

, e.g .,

Amalfitano v. State , 956 N.E.2d 208, 212 (Ind. Ct. App. 2011) (find ing no mitigator in

alleged remorse because tri al court had authority to assess credibility of witnesses), trans.10

denied

.

Affirmed.

ROBB, C.J., and PYLE, J., concur.