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Justices order new trial for man tried in absentia

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A North Carolina man who was convicted of two counts of Class C felony neglect of a dependent by an Elkhart Superior Court while the defendant was on a bus on the way to court will get a new trial, the Indiana Supreme Court concluded Tuesday.

In Ronald B. Hawkins v. State of Indiana, 20S03-1208-DR-499, Ronald Hawkins appealed his two convictions, arguing his trial in absentia denied him due process of the law. The Indiana justices focused on one of Hawkins’ claims: that the record doesn’t reflect a knowing, voluntary or intelligent waiver of his right to an attorney.

Hawkins’ public defender in the case sought to withdraw before his Nov. 7, 2011, trial date. The trial court told Hawkins of his attorney’s request, that there would be a hearing Oct. 19 and his failure to appear will result in his arrest and withdrawal of the public defender. Hawkins appeared by telephone. That hearing was rescheduled after technical difficulties, and the court didn’t tell him that the motion to withdraw would be granted if he didn’t appear at the new hearing.

Hawkins didn’t appear at the Oct. 26 hearing, his attorney was allowed to withdraw, and he was not in court for his Nov. 7 trial. A deputy prosecutor was alerted that Hawkins was on his way but his bus from North Carolina wasn’t due in until the afternoon. The trial court proceeded with the trial, where Hawkins was convicted. He later explained to the court from jail that he couldn’t afford transportation for both the Oct. 26 hearing and his trial, so he chose to attend the trial. He didn’t think he would arrive after the trial started in the morning.

The justices referenced Jackson v. State, 868 N.E.2d 494 (Ind. 2012), which upheld the decision to try a man in absentia, and found Hawkins’ behavior didn’t rise to the “egregious misbehavior” from Jackson.

“In no way, shape, or form, should our opinion today be taken as approval for Hawkins’s actions as a defendant facing criminal charges. Nor should it be taken as an invitation for defendants to ‘game the system.’ It is well known that trial courts face tremendous challenges in terms of case loads and staffing limitations, and every delay (intentional or not) necessarily has a carry-over effect to every other person’s access to the courtroom — and by extension, their access to justice,” Justice Steven David wrote.

"We therefore reiterate the theme of Jackson: that such willful, knowing, and voluntary misconduct aimed at manipulating the court system for one’s own benefit will not be looked upon with anything resembling favor.”

The justices ordered a new trial for Hawkins and pointed out based on its recent decision in Sanjari v. State, 961 N.E.2d 1005 (Ind. 2012), if he’s convicted of the two counts of Class D felony nonsupport, only one can be enhanced to a Class C felony. They also reminded the court and the state that “personally present” and “present in person,” as used in Indiana Code 35-38-1-4(a) and Indiana Administrative Rule 14(A)(2)(c), respectively, refer to the defendant’s actual physical presence. A trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution.

 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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