CRONE, Judge.
This case involves a father's failure to pay child support for his two children. The father, a nuclear physicist, not only did not pay support as ordered, but he also left the jurisdiction, moving to at least three different states to avoid extradition on an arrest warrant for felony nonsupport of a dependent child. He eventually was located in California and extradited to Indiana, where he was put in jail pending trial.
While in jail, the father went on a hunger strike, repeatedly asserted his right to represent himself, repeatedly rejected standby counsel, and repeatedly accused the trial court of wrongdoing. As trial approached, he said that he felt ill and wanted a certain attorney to represent him. The attorney was not licensed in Indiana, and the trial court granted the father's request for a continuance so that his attorney could attempt to gain admission as out-of-state counsel. The father continued to file motions and act as his own counsel, refusing the help of the standby counsel provided by the court. The trial court refused his request for another continuance right before trial.
As of the day of trial, the father's out-of-state attorney had filed two defective requests for admission in Indiana, and the father refused to leave his jail cell to attend the trial. The trial court consulted with employees from the jail, who said that the father had been ill but no longer was ill on the day of trial. The trial court tried the case without the father present, and a jury found him guilty of four counts of felony nonsupport of a dependent.
At sentencing, the trial court merged the two class D felony counts into the two class C felony counts and sentenced him to two consecutive five-year terms. The father filed a motion to correct error, which the trial court denied.
The father, Amir R. Sanjari, now appeals, claiming that the trial court erred in conducting the trial in his absence, in denying his second motion for continuance to hire new counsel, in entering judgment on two counts of nonsupport, and in sentencing him to an aggregate ten-year term. We vacate his conviction and sentence on Count II. In all other respects, we affirm.
In 1982, Sanjari married Alison Gratzol in London. After Sanjari earned a doctorate in nuclear physics, the couple relocated to Switzerland. They had two children: A.S., born in 1988, and M.S., born in 1992. In 1992, the family relocated to the United States, where Sanjari worked for the State University of New York and then the University of Notre Dame. In 1996, they
Sanjari and Gratzol separated in 1999 and divorced in 2000. During that time, Sanjari worked as a medical physicist at a cancer treatment center in Goshen. Initially, the couple had joint custody, but Gratzol obtained sole custody in 2001. From 2002 to 2005, the long legal battle continued regarding custody and child support. During this timeframe, Sanjari sought relief from federal courts and federal agencies against what he later described as a "train of conspiracy" against him by Gratzol and by Indiana trial and appellate courts. Tr. Aug. 27, 2009 Hrg. at 5-10.
On October 13, 2006, the State charged Sanjari with two counts of class C felony nonsupport of a dependent child. Sanjari remained at large until March 2009, when he was arrested in California and extradited to Indiana.
In September 2009, the State amended the information to add two counts of class D felony nonsupport of a dependent child. At an October 16, 2009 pretrial hearing, Sanjari complained that he had an ear infection. At an October 22, 2009 hearing, he informed the trial court that he felt ill and requested that the court appoint Saeid Amini as his counsel. Amini, an attorney with offices in Ohio and Washington, D.C., was present in the courtroom at that time. The trial court informed Sanjari that Amini was prohibited from representing him unless he was admitted pro hac vice pursuant to Indiana's rules for out-of-state counsel. The trial court continued the hearing
During the next week, Sanjari prepared and submitted proposed jury instructions, as well as objections to the State's proposed instructions and motion in limine. He also issued subpoenas for ten witnesses. At the October 29, 2009 hearing, Sanjari filed a motion for a thirty- to sixty-day continuance of the trial date, claiming that standby counsel was unacceptable and that the only acceptable counsel was Amini. The trial court denied his motion.
On November 2, 2009, Amini filed a request for pro hac vice admission, and the trial court denied the motion based on Amini's failure both to designate local counsel to work with him and to submit proof of payment of the required fee. On November 4, 2009, Sanjari filed a motion for change of venue, accusing the trial court of "bias and prejudice" and of attempting to increase welfare reimbursements to the county. Appellant's App. at 851. The trial court denied Sanjari's motion at a November 6, 2009 hearing, during which Sanjari insisted that he was being forced into a "sham trial." Tr. Nov. 6, 2009 Hrg. at 3, 7.
On the day of trial, November 9, 2009, Amini filed a second request for admission pro hac vice, which the trial court denied due to Amini's continued failure to engage local counsel. Standby counsel was present in the courtroom. Just before the start of the trial, the jail's medical staff informed the trial court that Sanjari claimed to be ill and refused to leave his cell or even get dressed for trial. The trial court took testimony under oath from nurse supervisor Maralee Hertel via video connection to the jail. She testified that although Sanjari had had a fever earlier in the week, his temperature was normal on the morning of trial. Trial Tr. at 7. She next explained that Sanjari had experienced health issues, but that they were largely attributable to his failure to take his nutritional supplements. Id. She also informed the court that a culture taken of Sanjari's ear tested negative for infection. Id. Based on this testimony, the trial court concluded that Sanjari had waived his right to be present at trial, and Sanjari was tried in absentia. Standby counsel was present at trial but did not participate.
The jury found Sanjari guilty as charged, and the trial court held sentencing hearings on April 1 and April 19, 2010. After trial, Amini gained admission pro hac vice and represented Sanjari. At sentencing, the trial court vacated the two class D felony convictions. At the first sentencing hearing, Sanjari addressed his hunger strike, his ear infection, and the allegedly harsh conditions of his cell. Following the second hearing, the trial court imposed consecutive five-year sentences for the two class C felony convictions. The trial court also imposed restitution, court costs, extradition costs, and a fine.
On April 28, 2010, Sanjari filed a motion to depose two nurses from the jail, and the trial court granted the motion following a hearing. The depositions took place on May 11, 2010. On May 12, 2010, Sanjari filed a motion for determination of indigence, which the trial court denied. On May 19, 2010, he filed a motion to publish the nurses' depositions and a motion to correct error, to which he attached the depositions, his medical records, and an affidavit stating his reasons for failing to attend his trial. On June 17, 2010, the trial court denied both motions. This appeal
Sanjari first claims that the trial court erred in conducting his trial in absentia. Because he raised the issue as part of his motion to correct error, we review it as such. We review a trial court's denial of a motion to correct error for an abuse of discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind.2002). An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it or when the court has misinterpreted the law. James v. State, 872 N.E.2d 669, 671 (Ind.Ct.App.2007).
Both the United States and Indiana Constitutions afford a criminal defendant the right to be present at all stages of the proceedings against him. U.S. CONST. amend. VI; IND. CONST. art. 1, § 13. Nevertheless, a trial court may conduct a defendant's trial in absentia if it determines that the defendant knowingly and voluntarily waived that right. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007).
Id. (citation and quotation marks omitted). "A defendant who has been tried in absentia must be afforded an opportunity to explain his absence and thereby rebut the initial presumption of waiver." Soliz v. State, 832 N.E.2d 1022, 1029 (Ind.Ct.App. 2005), trans. denied. On review, we consider the entire record, including a defendant's explanation for his absence, to determine whether his waiver was voluntary, knowing, and intelligent. Id. An incarcerated defendant's refusal to cooperate with jail staff charged with transporting him to his trial may be deemed a refusal to attend trial. See Adams v. State, 509 N.E.2d 812, 815 (Ind.1987) (where defendant claimed unsubstantiated ailments and refused to leave his cell to attend his trial, trial court was justified in finding that he voluntarily waived his right to be present at his trial).
Sanjari does not dispute that he was aware of his trial date. Instead, he asserts that he was physically incapable of attending his trial due to illness and that the nurses' depositions and his medical records constituted newly discovered evidence justifying a new trial. As such, he bore the burden of showing that the newly discovered evidence meets the standard for a new trial. Martinez v. State, 917 N.E.2d 1242, 1247 (Ind.Ct.App.2009), trans. denied (2010). A motion to correct error based upon the ground of newly discovered evidence
In its June 17, 2010 order denying Sanjari's motion to correct error, the trial court stated,
Appellant's App. at 1299-1300 (emphasis added).
Here, the trial court three times gave consideration to Sanjari's reasons for being absent from trial. First, on the day of trial, the court questioned jail nursing supervisor Hertel under oath regarding Sanjari's physical condition that day. The essence of their statements was that, although he had previously been ill, he had no fever on the morning of trial. They also indicated that his previous illness was largely due to his self-imposed hunger strike and failure to take his supplements as promised. The "newly discovered evidence" via medical records and nurses' depositions, although longer and more detailed, basically affirmed the statements on the day of trial and was therefore merely cumulative.
At sentencing, Sanjari claimed that he had had an ear infection and complained about "the particularly severe inhospitable and punishing conditions in my cell even. . . . compared to other inmates in the same building." Tr. April 1, 2010 Hrg. at 28. He also stated that his hunger strike "was not self-inflicted wound or injury." Id. With respect to the ear infection, we note that the nurse supervisor told the court on trial day that Sanjari's culture had come back negative for an ear infection. Again, Sanjari's explanation at sentencing merely reiterated what the court already knew: that he had felt ill on days leading up to the trial.
Finally, in its June 17, 2010 order, the trial court specifically noted that it had considered Sanjari's explanation for his absence advanced in the affidavit accompanying his motion to correct error; the court
Sanjari also challenges the trial court's denial of his motion for continuance. A continuance for the purpose of hiring private counsel immediately before trial is a matter within the trial court's discretion. Washington v. State, 902 N.E.2d 280, 286 (Ind.Ct.App.2009), trans. denied. We review a trial court's ruling on a motion for continuance using an abuse of discretion standard and will reverse only when an abuse of discretion occurs and prejudice results from it. Id. In general, continuances for additional time to prepare for trial are disfavored, and trial courts are cautioned against granting such motions unless good cause is shown and a continuance is in the interest of justice. Schmid v. State, 804 N.E.2d 174, 177-78 (Ind.Ct.App.2004), trans. denied. "Continuances sought shortly before trial to hire a new attorney are disfavored because they cause substantial loss of time for jurors, lawyers and the court." Id. at 177.
Here, Sanjari sought and was granted a one-week continuance on October 22, 2009, when he first indicated that he wanted Amini to represent him. The trial court not only granted the continuance, but it also instructed Sanjari that Amini could not represent him without first being admitted under Indiana's rules for temporary admission of out-of-state counsel and provided Amini with a copy of the applicable rules. The trial court also informed Sanjari that the jury had been summoned for his upcoming November 9, 2009 trial and that he could submit proposed jury instructions and questions at the October 29, 2009 hearing.
In the intervening week, Sanjari prepared the proposed jury instructions and questions as well as objections to the State's motion in limine. He also subpoenaed ten witnesses. However, Amini did not file a request for temporary admission during that week. At the October 29 hearing, Sanjari filed another motion for continuance, asserting that Amini was "the only acceptable attorney" and that Sanjari "would not accept any other attorney . . . including the current stand-by counsel." Appellant's App. at 808, 810. Sanjari stated that Amini was still in the process of obtaining the necessary proof of good standing in his home state of Ohio and would need thirty to sixty days to prepare for trial. Sanjari also indicated that settlement negotiations were in process. At the close of the hearing, the trial court indicated that Amini's appearance as Sanjari's counsel would be totally dependent upon Amini's compliance with Indiana's rules for temporary admission. As of the date of trial, Amini had filed two defective requests for admission, and the trial proceeded as scheduled. Meanwhile, standby counsel was present at pretrial hearings as well as at trial and was informed on all matters pertaining to Sanjari's case.
Sanjari asserts that the trial court's ruling on his October 29, 2009 motion for continuance was tantamount to a denial of his constitutional right to counsel. The Sixth Amendment guarantees a criminal defendant the right to have the assistance
Here, the trial court did not unreasonably or arbitrarily interfere with Sanjari's right to retain the counsel of his choice. Up until two weeks before trial, Sanjari was his own counsel of choice. He asserted in court that he "vehemently refused any kind of representation" because attorneys were "beholden to the Supreme Court" and therefore could not "provide a fair and honest to goodness service to their clients even if they wanted to because they would be afraid of repercussion by the Court." Tr. Aug. 27, 2009 Hrg. at 12. Throughout the proceedings, he repeatedly asserted his right to proceed pro se. Having received the required admonitions from the trial court about the dangers associated with self-representation, he proceeded to file numerous motions, objections to the State's motions, and requests for discovery. Before his dismissal, Sanjari's GAL testified that Sanjari is a man of "superior intellectual capabilities. . . . completely competent to represent himself and his own interests. . . . Never have I seen anybody who was more qualified to make decisions for himself than is Dr. Sanjari." Id. at 18.
Two weeks before trial, Sanjari changed his counsel of choice. When he asked that Amini be allowed to appear for him, the trial court granted a one-week continuance and provided Amini with the rules for temporary admission. One week later, when Amini had not accomplished the task, the trial court denied Sanjari's second motion for continuance, stating that if Amini did not enter an appearance for Sanjari, it would be because Amini did not comply with the Indiana rules. Thus, the trial court's refusal to allow Amini to appear was not unreasonable or arbitrary. Meanwhile, standby counsel remained present and available, and Sanjari's continued flurry of filing activity indicates that he would continue to act pro se unless and until Amini was admitted pro hac vice. In sum, the trial court acted within its discretion in denying Sanjari's motion for continuance for change of counsel.
Finally, to the extent Sanjari argues that he was statutorily entitled to a continuance based on illness, we note that his October 29, 2009 motion was not accompanied by oral testimony or a sworn written statement of a physician or medical official stating the nature and duration of his illness as required by statute. See Ind.Code § 35-36-7-1(e) (stating that motion for continuance based on defendant's illness must be accompanied by oral testimony given in open court or a sworn written statement of physician or hospital official having care or custody of defendant presenting nature and probable duration of defendant's incapacity to attend trial). The only explanation of illness that Sanjari offered in open court at the time of his motion was his own statement. As such, he was not statutorily entitled to an illness-based continuance.
Sanjari also asserts that his convictions for two counts of class C felony
Originally, the State charged Sanjari with two counts of class C felony nonsupport, one pertaining to A.S. and one pertaining to M.S., with each count listing an arrearage of $17,728 as of August 31, 2006. On September 2, 2009, the State amended the information to add two counts of class D felony nonsupport, one pertaining to each child, as of August 31, 2006. The charging period and arrearages were not amended for Counts I and II. The jury convicted Sanjari on all four counts. Nevertheless, at sentencing, the trial court entered judgment on the two class C felony convictions and vacated the two class D felony convictions, presumably because of double jeopardy concerns.
Sanjari now claims that, due to double jeopardy constraints, the trial court could enter judgment of conviction on only one of the two class C felony counts. He predicates his claim on the fact that only one child support order exists. That support order is an "in gross" order covering both of Sanjari's children. Appellant's App. at 1448. Indiana Code Section 35-46-1-5(a) states,
(Emphasis added.)
The record supports Sanjari's double jeopardy argument. The actual evidence used to convict Sanjari of two class C felony counts was one "in gross" support order. Although he has harmed more than one victim, he has committed only one crime: failure to pay at least $15,000 in support to one or more children. As such, conviction on both class C felony counts amounted to multiple punishments for the same offense in violation of his double jeopardy rights. Accordingly, we vacate his conviction on Count II class C felony nonsupport. We affirm his conviction and sentence on Count I, class C felony nonsupport.
Sanjari challenges his sentence on multiple grounds. At the outset, we note that our decision to vacate his conviction and sentence on Count II on double jeopardy grounds obviates the need to address his arguments regarding consecutive sentences on Counts I and II. As such, we now address the remainder of his sentencing claims.
Sanjari received a five-year sentence on Count I, class C felony non-support
Here, Sanjari cites his lack of criminal history as a mitigating factor allegedly overlooked by the trial court. However, in its sentencing order, the trial court specifically cited Sanjari's lack of criminal history as the only mitigator. To the extent Sanjari now complains that this mitigator should have been given greater weight, such a claim is no longer available for appellate review. Anglemyer, 868 N.E.2d at 493-94.
Sanjari also argues that the trial court improperly considered aggravating factors. The trial court identified the harm, injury, loss, or damage suffered by Sanjari's victims, stating that it was "significant and greater than the elements necessary to prove the commission of the crime." Appellant's App. at 1119 (citing Ind.Code § 35-38-1-7.1(a)(1)). Sanjari argues that the impact in this case does not exceed that which is normally associated with the crime of nonsupport of a dependent. Thus, he argues that it is not so distinct as to constitute an aggravating factor. We disagree. The trial court noted that, as of 2009, Sanjari's total arrearage of nearly $57,000 greatly exceeded the amount necessary to prove the commission of the offense and that Gratzol and her new spouse had been forced to work multiple jobs and to drain their retirement account to provide for the children's basic needs. The court also identified several non-statutory aggravators, including Sanjari's conduct in hiding from an arrest warrant and body attachment, his income potential as a nuclear physicist coupled with his refusal to seek employment and pay any support for over three years, and his lack of respect for the law and his "unwillingness to conform his behavior to socially-acceptable norms." Id. at 1121. In sum, we find no abuse of discretion in the trial court's consideration of aggravators and mitigators.
Sanjari also challenges the appropriateness of his sentence pursuant to
In considering the nature of a defendant's offense, "the advisory sentence is the starting point the Legislature has selected as an appropriate sentence." Anglemyer, 868 N.E.2d at 494. Here, we examine Sanjari's five-year sentence for one count of class C felony nonsupport of a dependent child. The advisory sentence for a class C felony is four years. Ind. Code § 35-50-2-6(a). Here, Sanjari was not merely late on a few child support payments. Instead, he failed to pay any support at all over a prolonged period spanning more than three years.
Moreover, Sanjari's conduct throughout the lengthy proceedings does not reflect well on his character. Notwithstanding the absence of a criminal history, he demonstrated a total disregard and disdain for the law. Not only did he fail to pay child support as ordered, but he also fled the jurisdiction and moved from state to state in avoidance of a body attachment and arrest warrant of which he was aware. He consistently accused the trial court of bias and prejudice, expressing his disdain for both the federal and Indiana judiciary as a whole. As such, his character does nothing to compel a lesser sentence. Thus, we conclude that he has failed to meet his burden of establishing that his sentence is inappropriate.
As part of Sanjari's sentence, the trial court imposed a $10,000 suspended fine, $164 in non-suspendable court costs, $56,741 in restitution to Gratzol, and $3737.41 restitution to the sheriff's department for extradition costs. Sanjari contends that the trial court erred in imposing these sums without first holding an indigency hearing. As stated, sentencing decisions are left to the trial court's sound discretion and will be reversed only upon a showing of manifest abuse of discretion. Anglemyer, 868 N.E.2d at 490. This includes decisions to impose restitution, fines, costs, or fees. Kimbrough v. State, 911 N.E.2d 621, 636 (Ind.Ct.App.2009).
Sanjari claims that the trial court erred in ordering restitution without first conducting an indigency hearing. Criminal restitution orders imposed as part of sentencing are within the trial court's discretion. McKenney v. State, 848 N.E.2d 1127, 1128 (Ind.Ct.App.2006). The statute governing criminal restitution orders is silent regarding the issue of a defendant's indigency. Ind.Code § 35-50-5-3. Nevertheless, it is well settled that restitution imposed upon a defendant with an executed sentence does not require the trial court to conduct an inquiry into the defendant's ability to pay. Collins v. State, 676 N.E.2d 741, 744 (Ind.Ct.App. 1996). Restitution is a form of punishment, the purpose of which is "to impress upon a person convicted of a crime the magnitude of the loss he or she has caused and to defray the costs incurred by the victim as a result of the offense." McKenney, 848 N.E.2d at 1129. As such, it is an
Here, the amount of restitution imposed is supported by the record and is not excessive. Accordingly, we conclude that the trial court acted within its discretion in ordering restitution as part of Sanjari's sentence without first conducting an indigency hearing.
With respect to fines, a person convicted of a class C felony may be fined not more than $10,000. Ind.Code § 35-50-2-6(a). "[W]henever the court imposes a fine, it shall conduct a hearing to determine whether the convicted person is indigent." Ind.Code § 35-38-1-18(a). "If the court suspends payment of the fine, the court shall conduct a hearing at the time the fine is due to determine whether the convicted person is indigent." Ind.Code § 35-38-1-18(b) (emphasis added). Because Sanjari's fine was suspended and not due at sentencing, the trial court acted within its discretion in not holding an indigency hearing at that time.
With respect to costs, a defendant's indigency does not shield him from all costs or fees related to his conviction. Banks v. State, 847 N.E.2d 1050, 1051 (Ind.Ct.App.2006), trans. denied. If the trial court imposes fees within the statutory limits, there is no abuse of discretion. Id. Indiana Code Section 33-37-2-3(a) states that when the court imposes costs, it "shall conduct a hearing to determine whether the convicted person is indigent." Indiana Code Section 33-37-4-1 does not explicitly require a determination of indigency and requires the clerk to collect from the defendant convicted of a felony a criminal costs fee of $120. The statute goes on to list a variety of additional fees that must be collected from the defendant. We find no abuse of discretion in the trial court's decision to impose $164 in costs.
Finally, with respect to the foregoing arguments, we note that the trial court did conduct a post-sentencing indigency hearing on May 12, 2010. In its order denying Sanjari's request to be found indigent, the trial court addressed his financial situation, citing both his actual current expenditures, i.e., for the "two non-public defender attorney's [sic] representing him," and his other available financial resources, i.e., relatives who had offered to make partial payments for him. Appellant's App. at 1148. The court characterized Sanjari's pattern throughout the proceedings as a steadfast refusal to pay, not an inability to pay. Id. Again, we note that although they were technically imposed at sentencing, none of the fines or costs had been declared due on that date. Nevertheless, by conducting the post-sentencing indigency hearing, the trial court cured any error it is alleged to have committed in not having made the indigency determination at sentencing.
Affirmed in part and vacated in part.
KIRSCH, J., and BRADFORD, J., concur.
