David, Rush publish dissent as high court lets stand sentencing via video

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The Indiana Lawyer on 2/13/2019 by Dave Stafford

ndiana’s chief justice and the most senior jurist on the Indiana Supreme Court published a sharp dissent Tuesday from a 3-2 ruling that could pave the way for defendants to be sentenced via video. Chief Justice Loretta Rush and Justice Steven David argued in the minority that defendants have a constitutional right to be physically present when a judge imposes a sentence for a crime.

The majority justices — Christopher Goff, Mark Massa and Geoffrey Slaughter — voted to deny transfer in a case that likewise divided the Indiana Court of Appeals, Tervarus L. Gary v. State of Indiana, 18A-CR-01101.

Gary was sentenced to two years in prison via video conference with the Elkhart Superior Court after he pleaded guilty to Class D felony nonsupport of a dependent child, and the COA affirmed in October. “Although we disapprove of the trial court’s failure to follow proper procedure, we cannot say that Gary’s sentencing via video conference absent a proper written waiver constituted a clearly blatant violation of basic and elementary principles of due process,” Judge Terry Crone wrote for the COA majority joined by Judge Edward Najam.

However, appellate Judge Rudy Pyle dissented from the COA majority and would have ordered a new sentencing hearing.

“…I would respectfully submit that a trial court’s failure to follow such a well-established law is a blatant violation of basic and elementary principles of due process,” Pyle wrote. “In addition, failure to follow this settled law carries a significant risk of prejudice to the defendant; an audio-visual link does not convey the same emotion, meaning, and judicial import as personally appearing in court.”

David and Rush agreed with Pyle in their dissent from the Supreme Court majority’s denial of transfer. David and Rush wrote that failing to permit a defendant to appear in person at his sentencing is not just fundamental error by a trial court, but also rejects procedure “as old as the great State of Indiana.

“But I would go one step further and find that, while still subject to waiver by a defendant, there is a constitutional right to be physically present at a sentencing hearing,” David wrote in the dissent joined by Rush. “Trial court judges are tasked with many responsibilities during trial including judging a defendant’s demeanor, advising a defendant about important rights and procedures, and freely interacting with all parties involved at sentencing.

“The use of video conferencing significantly diminishes each of these responsibilities and causes obvious concerns for the procedural safeguards for which our judicial system has worked so hard to implement,” the dissent continued. “Combined with our legislature’s mandate that defendants are entitled — and even compelled — to be physically present at sentencing hearings, Ind. Code § 35-38-1-4(a), I believe there are significant and important reasons for finding a constitutional right for a defendant to be physically present at a sentencing hearing.

“I am certainly not opposed to the advent of technology in the courtroom. In fact, technology has increased access to justice across the state. I am a firm believer in technology, and I am proud of Indiana’s advancement in that area,” David concluded. “But there comes a time when we must stand firm on the very principles of due process and find that, no matter the convenience, defendants are entitled to certain basic rights in our adversarial system. Because I believe the Defendant was entitled to be physically present at the sentencing hearing, I respectfully dissent from the denial of transfer and would vacate the Defendant’s sentence and remand for a new sentencing hearing.”