Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 1 of 8

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

Sean C. Mullins

Public Defender

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Harvey Stephens,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 25, 2017

Court of Appeals Case No.

45A04-1612-CR-2927

Appeal from the Lake Superior 

Court

The Honorable Samuel L. Cappas, 

Judge

Trial Court Cause No.

45G04-0104-DF-90

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CR-2927 | May 25, 2017 Page 2 of 8

Case Summary

[1] Harvey Stephens (“Stephens”) brings a belated appeal pursuant to Indiana Post 

Conviction Rule 2 to challenge the six-year aggregate sentence imposed in 2002 

following his pleas of guilty to Theft1 and Attempted Theft,

2 Class D felonies. 

He presents three issues, which we consolidate and restate as a single issue: 

whether the sentence is of such dubious validity that it constitutes fundamental 

error.3 We reverse and remand for resentencing.

Facts and Procedural History

[2] The facts underlying Stephens’ guilty pleas were described in the Stipulated 

Factual Basis as follows in pertinent part:

On April 2, 2001 at a Wal-Mart Store, Hobart, Indiana, Harvey 

Stephens with his accomplices, Wendy Smith and Patricia Price, 

stole money from a store cash register by using IBM keys; and, 

on April 2, 2001 at a Target Store, Hobart, Indiana, Harvey 

 

1

Ind. Code § 35-43-4-2.

2

I. C. §§ 35-43-4-2, 35-41-5-1.

3 We are unable to address the issue of inappropriateness, because the record – lacking a complete verified 

criminal history – is insufficient to permit meaningful review of the character of the offender pursuant to 

Indiana Appellate Rule 7(B).

Stephens also asserted that his aggregate sentence should be capped at four years, the maximum sentence for 

the next highest felony, because his offenses constituted a single criminal episode, defined as “offenses or a 

connected series of offenses that are closely related in time, place, and circumstance.” I. C. § 35-50-1-2(b). 

The Stipulated Plea and Agreement does not provide for a sentencing cap of four years. However, the parties 

agreed that they were “free to fully argue their respective positions as to the sentence to be imposed.” (App. 

Vol. II at 33.) Thus, Stephens was not foreclosed from arguing that his offenses were a single continuing 

offense. Nonetheless, the Stipulated Factual Basis does not independently provide sufficient factual detail to 

establish the statutory criteria of close relation in time, place, and circumstance. 
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Stephens with his accomplices, Wendy Smith and Patricia Price, 

attempted to steal money from a cash register by using IBM keys. 

However, they fled the store when approached by store 

employees and were later stopped by the police and arrested.

(App. Vol. II at 35.)

[3] On January 17, 2002, Stephens pleaded guilty to Theft and Attempted Theft 

pursuant to a Stipulated Plea and Agreement. Therein, the State agreed not to 

pursue a habitual offender enhancement and sentencing was left to the 

discretion of the trial court. The trial court accepted the pleas and ordered the 

compilation of a Presentence Investigation Report (“PSI”). 

[4] On February 27, 2002, the trial court conducted a sentencing hearing. At the 

commencement of the hearing, the following discussion ensued:

Court: The Defendant is in custody in the State of Ohio and 

wishes to be sentenced in his absence; is that correct, Mr. Clark?

Defense Attorney: Yes, it is, your Honor.

Court: All right. The probation department has sought to –

sought a continuance in this matter, because records they 

requested from out of state have not been tendered. Therefore, 

the presentence report is incomplete, in their opinion. But even 

given that fact, the Defendant does wish to be sentenced in 

absentia; is that correct?

Defense Attorney: That’s correct.

Court: All right. Any corrections to the presentence report?
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Defense Attorney: I haven’t even seen what this thing has, but I 

have no additional corrections. And, unfortunately, we can’t 

make any deletions, so we have none.

Court: All right. Any changes by the State:

Prosecutor: Not from the State, your Honor.

Court: All right. Any evidence for the Defendant?

Defense Attorney: No evidence, your Honor.

Court: Evidence for the State?

Prosecutor: No, your Honor.

(Sent. Tr. at 3-4.) The trial court heard brief argument from counsel, with each 

counsel alleging facts outside the Stipulated Factual Basis. Thereafter, the trial 

court advised the parties that he had reviewed “the criminal history 

attachment” or “triple I” report. (Sent. Tr. at 5.) The trial court imposed the 

maximum sentence possible, a three-year sentence for Theft and a three-year 

sentence for Attempted Theft,4to be served consecutively.

[5] Detainers were placed on Stephens during his incarceration in Ohio. On 

October 21, 2016, he appeared in court in Indiana and was advised as to his 

post-conviction rights and rights to an attorney. With assistance from a public 

 

4

I. C. § 35-50-2-7.
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defender, on December 16, 2016, Stephens filed a petition seeking permission to 

bring a belated appeal. On December 20, 2016, the trial court granted 

Stephens’ petition. He now belatedly appeals his sentence.

 Discussion and Decision

[6] Stephens and the State agree that the instant sentence was imposed at the 

culmination of irregular proceedings. The PSI, deemed incomplete by the 

probation department, had apparently not been provided to defense counsel 

prior to the sentencing hearing.5 In light of the probation department’s request 

for a continuance, the trial court asked defense counsel to assess his client’s 

wish to proceed, although Stephens was absent and not consulted. Although 

the parties had agreed that Stephens had a criminal history, apparently 

sufficient to support the filing of a habitual offender allegation, three versions of 

that history had been compiled, and the details were not established by 

admissible evidence. Defense counsel essentially abdicated his responsibility as 

 

5

Indiana Code Section 35-38-1-12 provides that the trial court is to advise the defendant or his counsel of the 

factual contents and conclusions of the PSI or furnish a copy of the PSI “sufficiently in advance of sentencing 

so that the defendant will be afforded a fair opportunity to controvert the material included.”

The purpose of the PSI is to provide information to the court for use at individualized sentencing. Yates v. 

State, 429 N.E.2d 992, 994 (Ind. Ct. App. 1982). “Of course, the pre-sentence report must contain only 

accurate information and therefore, a defendant is given the opportunity to refute the information in the 

report.” Id.

In Gilbert v. State, 982 N.E.2d 1087, 1092 (Ind. Ct. App. 2013), a panel of this Court found that the 

defendant’s due process rights had been violated when neither he nor his counsel was provided with a PSI 

until the day of the sentencing hearing. 
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an advocate for his absent client to participate in the determination of a reliable 

and reviewable sentence.

[7] On appeal, the State argues that Stephens’ counsel failed to object to any 

irregularity, thereby waiving the matter for appellate review, while Stephens 

contends that his sentence constitutes fundamental error. The doctrine of 

fundamental error exists as an exception to the contemporaneous objection rule 

and permits consideration on appeal of errors to which no objection was made 

at trial. Stewart v. State, 567 N.E.2d 171, 174 (Ind. Ct. App. 1991), trans. denied. 

“[T]he error must be one such that the defendant could not possibly have had a 

fair trial or such that this court is left with the conviction that the verdict or 

sentence is clearly wrong or of such dubious validity that justice cannot permit 

it to stand.” Id.

[8] The PSI of record is incomplete, although it includes a summary:

Defendant has extensive prior contact with the criminal justice 

system. He has no known juvenile adjudications. Regarding the 

total number of misdemeanor and felony convictions, this 

information is not yet available. According to the NCIC, the 

defendant has numerous arrest[s] throughout the state of Ohio. 

In addition, it is believed that he has been incarcerated.

(App. Vol. II at 93.)

[9] Also appearing in the Appendix is a form titled “Record Check by Prosecuting 

Attorney.” (App. Vol. II at 12.) The checked boxes on the form indicate that 

Stephens was not on probation or parole, did not have other charges pending, 
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and was not on bond. Prior felony convictions were listed as a 1981 conviction 

in Ohio for Forgery, a federal conviction in 1983 for Forging Endorsement on 

U.S. Bond, a 1991 conviction in Ohio for Theft and a 1991 conviction in Ohio 

for Carrying a Concealed Weapon. However, the sentencing transcript does 

not suggest that this form was submitted as an evidentiary exhibit.

[10] Based upon the trial court’s comments at sentencing, it appears that he wholly 

relied upon a third source, a “triple I report,” outside the evidentiary record or 

appendix. (Sent. Tr. at 5.) The sentencing order recites Stephens’ prior 

criminal history as a conviction for “possession of CDS, a felony,” Forgery in 

1985, Forgery in 1989, and other convictions – at unspecified times – for Theft, 

Robbery, Attempted Grand Theft, Forgery, and Carrying a Concealed 

Weapon. (Sent. Tr. at 7-8.) Also, the trial court found Stephens’ use of aliases, 

multiple Social Security numbers, and multiple dates of birth to be an 

aggravating circumstance. However, this information was not in the PSI or a 

separate evidentiary exhibit.

[11] Having ordered a PSI, the trial court refused to grant a continuance for its 

completion, disregarded the incomplete PSI, and assigned credibility to an 

unverified attachment described as a Triple I report. Stephens was afforded no 

opportunity to refute the information therein. Nor was he afforded any 

meaningful opportunity to respond to the varying accounts of his criminal 

history. Also, due to the lack of dates of many purported offenses, defense 

counsel was unable to make any argument as to remoteness. Under these 
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circumstances, we conclude that the sentence is of such dubious validity that it 

constitutes fundamental error.

Conclusion

[12] We reverse the sentence and remand for a new sentencing hearing predicated 

upon compliance with Indiana Code Sections 35-38-1-8 and 35-38-1-12.

[13] Reversed and remanded. 

Vaidik, C.J., and Robb, J., concur.