Samuel A. Smart, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Samuel A. Smart appeals his convictions and corresponding sentence for possession of a narcotic, as a Level 5 felony (Count 1);¹ possession of methamphetamine, as a Level 5 felony (Count 2);² possession of a controlled substance, as a Level 6 felony (Count 3);³ unlawful possession of a syringe, a Level 6 felony (Count 4);⁴ possession of marijuana, as a Class B misdemeanor (Count 5);⁵ public intoxication, a Class B misdemeanor (Count 6);⁶ and possession of paraphernalia, as a Class C misdemeanor (Count 7).⁷ We affirm.

Issues

[2] Smart raises the following two issues for our review:

1. Whether the trial court erred when it tried him in absentia.

2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

Facts and Procedural History

[3] On May 16, 2022, officers with the Huntington Police Department responded to a dispatch of an “[u]nresponsive person” on the porch of a home. Tr. Vol. 2 at 157. When Officer Jered Brinkman arrived, he observed Smart “laying on the front steps with his feet on the ground, hunched over with his head laying on top of the top step.” Id. When Officer Brinkman approached, Smart slowly stood up and then “tried to grab his backpack and walk away” from the officers. Id. at 158. Officer Brinkman asked Smart what was in the backpack, and Smart “unzipped it and opened it up” so the officers could see inside. Id. Officer Brinkman was able to observe a clear container with what appeared to be marijuana. Smart then voluntarily handed his backpack to officers.

[4] At that point, Officer Brinkman asked Smart if “there was anything on his person that [officers] should be concerned about.” Id. at 159. Smart responded by “emptying his pockets voluntarily.” Id. As he emptied his pockets, Officer Reece Lefever was able to observe a blue container with “syringes poking out[.]” Id. The officers then placed Smart in handcuffs, and they located a small bag with a “brown substance,” a spoon, and a glass pipe in Smart's pockets along with the syringes. Id. Upon a further search of the backpack, officers also discovered more syringes, a spoon with residue on it, and a container with “a white substance” inside. Id. at 160. Laboratory testing later confirmed that the items in Smart's pockets and backpack included methamphetamine, marijuana, fentanyl, and alprazolam.

[5] The State charged Smart with Counts 1 through 7. On April 25, 2023, the trial court held a pretrial conference at which Smart appeared, and the court scheduled his jury trial to begin on August 17. The court then held a jury trial on August 17. Smart failed to appear. Smart's counsel filed a motion to continue, but the court denied that motion because Smart “was present in court on April 25th of 2023, when this jury trial was set” and because Smart “did have notice of the date of this trial and knew he was to be here.” Id. at 132. The court proceeded with the trial, and Officers Brinkman and Lefever testified to the events of May 16, 2022, and a forensic scientist with the Indiana State Police laboratory testified to the identification of the substances found by the officers. At the conclusion of the trial, the jury found Smart guilty as charged.

[6] The court thereafter held a sentencing hearing at which Smart appeared. The court identified as aggravators Smart's criminal history, which included violations of his bond, and that he had “been terminated from a halfway house.” Tr. Vol. 3 at 5. The court also identified as aggravating that Smart had substance abuse issues but that he has “not taken advantage of any opportunities ․ to address those,” that he had an “outstanding warrant” in another county, and that he was not “a candidate for probation or Community Corrections” based on his history. Id. Accordingly, the court sentenced Smart to concurrent, executed sentences of five years each on Counts 1 and 2, two years each on Counts 3 and 4, one hundred and eighty days each on Counts 5 and 6, and sixty days on Count 7. This appeal ensued.

Discussion and Decision

Issue One: Trial in absentia

[7] Smart first contends that the trial court erred when it held his trial in absentia. As this Court has previously stated:

“A criminal defendant has a right to be present during his trial under the Sixth Amendment of the U.S. Constitution and under [Article I, Section 13] of the Indiana Constitution.” Fennell v. State, 492 N.E.2d 297, 299 (Ind. 1986). “A defendant in a non-capital case may waive his right to be present at trial, but the waiver must be voluntarily, knowingly and intelligently made. The trial court may presume a defendant voluntarily, knowingly and intelligently waived his right to be present and try the defendant in absentia upon a showing that the defendant knew the scheduled trial date but failed to appear.” Ellis v. State, 525 N.E.2d 610, 611-12 (Ind. Ct. App. 1987) (citation omitted). “The best evidence of this knowledge is the defendant's presence in court on the day the matter is set for trial.” Fennell, 492 N.E.2d at 299. “A defendant who has been [tried in absentia], however, must be afforded an opportunity to explain his absence and thereby rebut the initial presumption of waiver.” Ellis, 525 N.E.2d at 612. “This does not require a sua sponte inquiry; rather the defendant cannot be prevented from explaining.” Hudson v. State, 462 N.E.2d 1077, 1081 (Ind. Ct. App. 1984). As a reviewing court, we consider the entire record to determine whether the defendant voluntarily, knowingly, and intelligently waived his right to be present at trial. See Reel v. State, 567 N.E.2d 845, 846 (Ind. Ct. App. 1991) (employing “voluntarily and knowingly” standard). A defendant's explanation of his absence is a part of the evidence available to a reviewing court in determining whether it was error to try him in absentia. Fennell, 492 N.E.2d at 299.

Diaz v. State, 775 N.E.2d 1212, 1216-17 (Ind. Ct. App. 2002) (footnotes omitted).

[8] Here, there is no dispute that Smart knew of his trial date but did not appear for his trial. Indeed, Smart concedes “that he was present at the hearing held by the trial court on April 25, 2023[,] when his Jury Trial was set[.]” Appellant's Br. at 16. It is therefore presumed that he waived his right to be tried in person. See Diaz, 775 N.E.2d at 1216. However, Smart contends that, “once he appeared before the trial court,” he was “never once ․ afforded an opportunity to explain to the trial court why he was absent for his trial.” Appellant's Br. at 18.

[9] Following the jury trial, Smart appeared before the trial court on two occasions: at a hearing on August 19, 2024, and then the sentencing hearing on September 10. But Smart did not make any attempt at either hearing to explain to the trial court why he was absent from his trial. While the trial court did not question Smart about his absence, it was under no obligation to sua sponte ask Smart for an explanation. See Diaz, 775 N.E.2d at 1217 (stating that, while a defendant must be afforded an opportunity to explain his absence, this “does not require a sua sponte inquiry.”). There is no indication in the record that the trial court prevented Smart from explaining his absence; Smart simply did not try to do so. We therefore cannot say that the court erred when it concluded that Smart had knowingly and voluntarily waived his right to be present at his trial. Accordingly, the court did not err when it tried him in absentia.

Issue Two: Appropriateness of Sentence

[10] Smart next contends that his sentence is inappropriate in light of the nature of the offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he 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.” This Court has held that “[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has previously explained that:

The principal role of appellate review should be to attempt to leaven the outliers ․ but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[11] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).

[12] The sentencing range for Smart's most serious offenses, the Level 5 felonies, is one year to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b).⁸ Following a sentencing hearing, the court sentenced Smart to an elevated sentence of five years, fully executed at the Department of Correction, on each of those counts, to run concurrently.

[13] On appeal, Smart contends that his sentence is inappropriate based on the nature of the offenses because his crimes were “essentially victimless” in that he was “possessing, not dealing” and because “no physical violence was involved and no property damage was incurred.” Appellant's Br. at 21. Smart also contends that his sentence is inappropriate in light of his character because he “clearly ․ has a host of medical issues going on.” Id. He further asserts that, while he has a criminal history, it “is clearly indicative of someone that is suffering from drug addiction.” Id. And he maintains that he has “good character” because he “received his GED and a logistics certificate while incarcerated.” Id. at 22.

[14] However, Smart has not met his burden on appeal to demonstrate that his sentence is inappropriate. Regarding the nature of the offenses, Smart was in possession of four different illegal substances: marijuana, methamphetamine, fentanyl, and alprazolam. In addition, he possessed syringes and a glass pipe that could be used to ingest the drugs. And he had used enough of the drugs to pass out on the front porch of a house that did not belong to him and cause officers to believe that he may be suffering from an overdose. Smart has not presented compelling evidence portraying the nature of the offense in a positive light. See Stephenson, 29 N.E.3d at 122.

[15] As for his character, Smart has a criminal history that includes two adjudications as a juvenile delinquent, two prior misdemeanor convictions, and four prior felony convictions. He violated the terms of his pretrial release several times in the instant case, and at the time of sentencing had an active warrant for his arrest in another county. In addition, he has had his placement on probation revoked on multiple occasions. And Smart continues to use illegal substances, which reflects poorly on his character. We cannot say that Smart's sentence is inappropriate in light of the nature of his character. We therefore affirm Smart's sentence.

Conclusion

[16] The trial court did not err when it tried Smart in absentia. And Smart's sentence is not inappropriate in light of the nature of the offenses and his character. We affirm his convictions and sentence.

[17] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6(b)(2).

2.   I.C. § 35-48-4-6.1(b)(2).

3.   I.C. § 35-48-4-7(b).

4.   I.C. § 16-42-19-18.

5.   I.C. § 35-48-4-11(a).

6.   I.C. § 7.1-5-1-3(a)(1).

7.   I.C. § 35-48-4-8.3(b)(1).

8.   Because Smart's sentences are concurrent, we do not address the appropriateness of his sentences for any of the less serious felony or misdemeanor convictions.

Bailey, Judge.

Judges Vaidik and DeBoer concur. Vaidik, J., and DeBoer, J., concur.