Edward M. Hampton v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any Mar 31 2020, 9:54 am

court except for the purpose of establishing CLERK

the defense of res judicata, collateral Indiana Supreme Court

Court of Appeals

estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

James A. Hanson Curtis T. Hill, Jr.

Fort Wayne, Indiana Attorney General

Ellen H. Meilaender

Supervising Deputy Attorney

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Edward M. Hampton, March 31, 2020

Appellant-Defendant, Court of Appeals Case No.

19A-CR-1456

v. Appeal from the Allen Superior

Court

State of Indiana, The Honorable David M. Zent,

Appellee-Plaintiff Judge

Trial Court Cause No.

02D05-1903-F3-10

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1456 | March 31, 2020 Page 1 of 14

Case Summary

[1] Edward M. Hampton appeals his conviction and sentence for level 3 felony

robbery following a bench trial at which he represented himself pro se. He

argues that the trial court erred by failing to adequately advise him regarding

the scope of cross-examination if he decided to testify and that his sentence is

inappropriate based on the nature of the offense and his character. We

conclude that Hampton has waived his claim of trial court error and that he has

failed to carry his burden to show that his sentence is inappropriate.

Accordingly, we affirm Hampton’s conviction and sentence for level 3 felony

robbery. However, because the trial court attempted to avoid double jeopardy

violations by merging two other counts on which Hampton was found guilty

into the robbery count, we remand with instructions for the trial court to vacate

Count II, level 5 felony battery, and Count III, level 6 felony criminal

recklessness.

Facts and Procedural History

[2] On the evening of February 25, 2019, Hampton and his girlfriend Olivia

Johnston went to a hotel room where Jason Hager and several other people

were present. Hager knew Hampton and Johnston from previous interactions.

Hampton was very angry and approached Hager holding a knife and repeatedly

demanding his money. The knife had a “wooden grain like pattern on it.” Tr.

Vol. 2 at 53. Hampton put his hand on Hager’s shoulder and “put the knife

directly to [Hager’s] chest[,]” pressing the tip of the knife hard “enough [for

Hager] to know that [Hampton] meant business.” Id. at 51-52. Hampton kept

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demanding his money, and Hager kept telling Hampton that he did not know

what Hampton was talking about. Hager began to get “very scared[,]” pulled

out his wallet, and started handing money to Johnston, who was standing

behind Hampton. Hampton “kept on getting more forceful and his voice got

louder.” Id. at 52. Hampton came at Hager “hard … with the knife and it went

into [Hager’s] hip.” Id. The knife punctured Hager’s skin, and he began to

bleed. Hager was “[v]ery, very afraid[,]” and handed Johnston his wallet. Id.

Hager pleaded with them to stop. Johnston went through Hager’s wallet,

grabbed the rest of the money, and returned the wallet to Hager. Hager limped

from the room with blood flowing out of his hip to seek help. Someone at the

hotel across the street called the police.

[3] Fort Wayne Police Officer Joshua Franciscy responded to the call and found

Hager, who appeared to be in a great deal of pain, lying on his side with blood

on his hands and clothes. Hager informed police that he had been stabbed and

robbed by Hampton. Hager described Hampton as a skinny black male

wearing a brown vest. Hager also provided a description of Johnston and the

person who rented the hotel room where the robbery occurred. Hager was

taken to a hospital by ambulance where he received stitches for the wound to

his hip. While Hager was at the hospital, he identified Hampton and Johnston

in photo arrays.

[4] From Hager’s description of the person who rented the room where the robbery

occurred, the police were able to learn the room number where Hager was

stabbed. Officers went to the room, and Hampton, who fit Hager’s description

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of the perpetrator, opened the door. Officers asked Hampton who he was, and

Hampton told them his name. Officers also identified Johnston as the woman

described by Hager. Hampton and Johnston exited the room and stayed

outside with Officer Franciscy while other officers entered the room to perform

a protective sweep. In Johnston’s pocket, police found a debit card with

Hager’s name on it and a folding knife with a wood grain handle and what

appeared to be dried blood on the blade. Police contacted the person who

rented the hotel room and received the person’s consent to search the room.

On the bed, police found Johnston’s purse, which contained another debit card

with Hager’s name on it. Police also found a brown vest.

[5] In March 2019, the State charged Hampton with Count I, level 3 felony

robbery; Count II, level 5 felony battery; and Count III, level 6 felony criminal

recklessness. Hampton filed a motion to proceed pro se and a motion to waive

jury trial. Following a hearing, the trial court granted both motions; the

transcript of this hearing is not in the record before us. Hampton filed a motion

to suppress all the physical evidence found in the hotel room, which the trial

court denied. Hampton also filed a motion in limine to exclude his prior

convictions. The State agreed with his request “with the exception of

[Hampton’s] qualifying impeachable convictions.” Id. at 6. The trial court

asked Hampton if he understood this response, and he answered affirmatively.

The trial court then informed Hampton that it would grant his motion “with the

exception of impeachable offenses.” Id.

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[6] A bench trial was held. At the close of the State’s evidence, the trial court

asked Hampton what evidence he wanted to present. Hampton requested

incorporation of all the evidence that he presented at the suppression hearing,

which the trial court granted. Id. at 90. The trial court asked Hampton if he

had any other evidence or testimony that he wanted to present, and Hampton

said that he did not. The trial court asked him whether he was resting his

presentation. Hampton responded that he had presented everything “other

than just to come out and say somebody else did this.” Id. at 91. The trial

court asked Hampton if he wanted to testify. Hampton said that he did not

want to testify. The trial court stated, “Okay, that – that’s your right sir. That’s

fine.” Id. Hampton inquired who would cross-examine him if he did testify.

The trial court replied, “Probably the Prosecutor’s Office. If you testify[,] they

have the right to question you. Do you wish to testify? You have a right to not

testify too.” Id. Hampton answered, “Yeah, I’ll testify.” Id.

[7] The trial court then swore Hampton in and asked him what he wanted to say.

Hampton said, “I could just – if the – if the State has any question that they

would like to ask me.” Id. at 91-92. The trial court explained that the State

could only ask him questions based on what his testimony was, and that there

was a “scope limitation, so if you don’t testify there’s nothing for them to ask

you.” Id. at 92. Hampton began by saying that his testimony was exactly what

he had been saying from the beginning. However, the remainder of his

testimony was objected to by the State based on evidentiary rules, and the trial

court sustained those objections. After Hampton rested his case, the trial court

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told the prosecutor, “I don’t know if there’s anything for you to question him

on based on that limited presentation.” Id. at 93. The prosecutor said he would

like to ask Hampton about some impeachable offenses, which the trial court

permitted. The State began questioning Hampton about his prior impeachable

offenses, and Hampton asked the trial court to exclude his prior convictions

based on his motion in limine preventing the State from raising them. The trial

court explained that the State could not have raised them if he had not testified,

but because he had testified, the State could bring them up for impeachment

purposes. Id. at 94. Hampton said, “But you stated that the only things that

they would have to ask me about would be the thing that I talked about. I

didn’t bring up any criminal conversion.” Id. The trial court responded, “The

fact that you’re testifying allows him to impeach you, sir.” Id. The trial court

permitted the State to offer evidence of Hampton’s prior convictions for

criminal conversion and burglary. At the conclusion of Hampton’s bench trial,

the trial court found him guilty as charged.

[8] A sentencing hearing was held. The trial court found that the nature of the

crime, Hampton’s criminal history consisting of ten prior felonies and twenty-

two misdemeanors, and prior failed efforts at rehabilitation were aggravating

factors. The trial court found no mitigating factors. The trial court stated that

as to Counts II and III, “it was essentially one act[,]” and it would “merge”

Counts II and III into Count I. Id. at 111. The trial court sentenced Hampton

to fifteen years for Count I, level 3 felony robbery. This appeal ensued.

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Discussion and Decision

Section 1 – Hampton has waived his claim that the trial court

erred by failing to adequately advise him regarding the scope

of cross-examination.

[9] Hampton contends that the trial court erred by failing to adequately advise him,

a pro se defendant, regarding the scope of cross-examination, thereby

undermining his knowing, intelligent, and voluntary waiver of his

constitutional right not to incriminate himself. We begin by noting that

although Hampton refers to his constitutional right against self-incrimination,

he does not indicate whether he is relying on the United States Constitution or

the Indiana Constitution. Further, he does not cite any cases that discuss the

right against self-incrimination; all the cases he cites involve the right to

counsel. Also, the standard of review he provides is for sufficiency of the

evidence, which does not apply to this issue. 1 Based on these deficiencies, we

conclude that he has waived this issue for review by failing to present a cogent

argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in

appellant’s brief be supported by cogent reasoning and citations to authorities,

statutes, and the appendix or parts of the record on appeal); Casady v. State, 934

1

In addition, he fails to place the standard of review in the argument section of his appellant’s brief as

required by Indiana Appellate Rule 46(A)(8)(b). Although the paragraph pertaining to the standard of review

contains citations to published cases, he attributes the paragraph to a memorandum decision in contravention

of Indiana Appellate Rule 65(D).

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N.E.2d 1181, 1190 (Ind. Ct. App. 2010) (failure to cite rules of evidence and

case law waived claim of improperly admitted evidence), trans. denied (2011).

[10] Waiver notwithstanding, Hampton’s argument is unavailing. Hampton asserts

that the trial court failed to explain that by testifying, Hampton “would waive

his right to not incriminate himself and expose him to introduction of prior

convictions for offenses of dishonesty as an exception to the relevant rules of

evidence,” and that but for that failure, he would not have testified. Appellant’s

Br. at 29. In support, he argues that the right against self-incrimination is as

important as the right to counsel, which requires a trial court to advise a

defendant of the dangers and disadvantages of self-representation so that any

waiver of the right is done knowingly, voluntarily, and intelligently. Wirthlin v.

State, 99 N.E.3d 699, 705 (Ind. Ct. App. 2018) (citing Poynter v. State, 749

N.E.2d 1122, 1126 (2001)), trans. denied. 2

[11] Of course, a defendant’s right against self-incrimination is important and legally

significant, but the right to counsel is intended to protect that and other

constitutional rights. As our supreme court has stated, “The purpose of the

Sixth Amendment guarantee of representation is to protect an accused from

conviction resulting from his own ignorance of his legal and constitutional

2

We observe that the trial court held a hearing on Hampton’s request to proceed pro se, and determined that

he knowingly, intelligently, and voluntarily waived his right to counsel. Hampton does not suggest that the

trial court erred in making this determination. “[A] defendant who chooses to proceed pro se must accept the

burdens and hazards of self-representation.” Warr v. State, 877 N.E.2d 817, 823 (Ind. Ct. App. 2007), trans.

denied (2008).

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rights and to assure him the guiding hand of counsel at every step in the

proceeding.” Koehler v. State, 499 N.E.2d 196, 199 (Ind. 1986). The right to

counsel is “probably the most important right a defendant has because that right

can affect a defendant’s ability to assert all his other rights and because most

defendants do not have the professional legal skills necessary to represent

themselves adequately.” Henson v. State, 798 N.E.2d 540, 543-44 (Ind. Ct. App.

2003), trans. denied (2004). Accordingly, “to waive the constitutionally

protected right to counsel, a defendant ‘must knowingly and intelligently forgo

those relinquished benefits’ provided by counsel, and be advised of the potential

pitfalls surrounding self-representation so that it is clear that ‘he knows what he

is doing and [that] his choice is made with eyes open.’” Kubsch v. State, 866

N.E.2d 726, 736 (Ind. 2007) (quoting Faretta v. California, 422 U.S. 806, 835

(1975)), cert. denied (2008). “Because the defendant is the one who must suffer

the consequences of his decision as to counsel, he is entitled to choose his

advocate–a lawyer or himself.” Houston v. State, 553 N.E.2d 117, 118 (Ind.

1990). However, “a defendant who chooses to proceed pro se must accept the

burdens and hazards of self-representation.” Warr v. State, 877 N.E.2d 817, 823

(Ind. Ct. App. 2007), trans. denied (2008).

[12] Here, Hampton requested to proceed pro se, and the trial court held a hearing

on the matter and determined that he knowingly, intelligently, and voluntarily

waived his right to counsel. That process ensured that Hampton was aware

that by choosing to represent himself, there was a danger that he would be

unable to protect his rights as well as a skilled professional. Hampton does not

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suggest that the trial court erred in making this determination. Yet, Hampton

would have us impose a duty on the trial court to advise a pro se defendant of

the advantages and disadvantages of taking the stand to ensure that the

defendant is knowingly, intelligently, and voluntarily waiving his or her right

against self-incrimination. However, whether a particular defendant should

testify in a given case is a fact-sensitive determination based on a myriad of

considerations that will often boil down to a question of strategy. To require a

trial court to engage in such a question improperly places the trial court in the

role of a defendant’s attorney. Accordingly, we decline Hampton’s invitation

to impose upon the trial court a duty to advise a pro se defendant regarding the

advantages and disadvantages of testifying. Moreover, we observe that the trial

court did not say anything erroneous, and that Hampton had indicated that he

understood when the trial court granted his motion in limine to exclude his

prior convictions with the exception of his qualifying impeachable convictions.

We find no error here. Therefore, we affirm Hampton’s conviction.

Section 2 – Hamptons has failed to carry his burden to prove

that his sentence is inappropriate.

[13] Hampton next asks us to reduce his sentence pursuant to Indiana Appellate

Rule 7(B), which states, “The 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.” When reviewing a sentence, our principal role is to leaven the

outliers rather than necessarily achieve what is perceived as the correct result in

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each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not

look to determine if the sentence was appropriate; instead we look to make sure

the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

2012). “[S]entencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell, 895 N.E.2d

at 1222. “Such deference should prevail 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). In conducting

our review, we may consider all aspects of the penal consequences imposed by

the trial court in sentencing, i.e., whether it consists of executed time,

probation, suspension, home detention, or placement in community

corrections, and whether the sentences run concurrently or consecutively.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). In addition, as we assess

the nature of the offense and character of the offender, “we may look to any

factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.

Ct. App. 2013). Hampton has the burden to show that his sentence is

inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218.

[14] Turning first to the nature of the offense, we observe that “the advisory sentence

is the starting point the Legislature selected as appropriate for the crime

committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Hampton was

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convicted of a level 3 felony, which has a sentencing range of three to sixteen

years and an advisory sentence of nine years. Ind. Code § 35-50-2-5. Hampton

received a fifteen-year executed sentence for level 3 felony robbery. Level 3

felony robbery is defined as a knowing or intentional taking of property from

another person or from the presence of another person by using or threatening

the use of force on any person or by putting any person in fear resulting in

bodily injury to any person other than a defendant. Appellant’s App. Vol. 2 at

2; Ind. Code § 35-42-5-1(a). Here, Hampton, armed with a deadly weapon,

deliberately sought out Hager to take money from him. Hampton not only

used the knife to threaten force, but also stabbed Hager in the hip, drawing

blood and resulting in a wound requiring stiches. Hampton and his accomplice

took Hager’s bank cards in addition to his money. Thus, the nature of the

crime supports a sentence above the advisory.

[15] As to Hampton’s character, at the age of thirty-five, he already has ten prior

felony convictions and twenty-two prior misdemeanor convictions. His

criminal history includes convictions for burglary, theft, conversion, possession

of methamphetamine, possession of a controlled substance, possession of

paraphernalia, domestic battery, resisting law enforcement, and false informing.

Appellant’s App. Vol. 2 at 118-23. The current offense is similar in nature to

his previous crimes but even more violent. At the time of sentencing, Hampton

had pending drug charges in Allen County and an active failure-to-appear

warrant out of a Cass County paternity case. Hampton contends that the trial

court should have considered other more lenient sentencing options, but he has

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been afforded such opportunities before, and they have clearly been ineffective

in modifying his behavior. We conclude that Hampton has failed to carry his

burden to show that his sentence is inappropriate based on the nature of the

crime and his character. Accordingly, we affirm his sentence.

Section 3 – Remand is necessary for the trial court to vacate

the convictions on Counts II and III.

[16] As a final matter, we sua sponte address what appears to be a double jeopardy

violation. See Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015)

(stating that double jeopardy violations implicate fundamental rights, and this

Court may address such violations sua sponte), trans. denied (2016). Our review

of the transcript suggests that the trial court sought to “merge” the three counts

against Hampton based on double jeopardy grounds. Tr. Vol. 2 at 111. The

abstract of judgment provides that the disposition for both Counts II and III is

“Conviction Merged[.]” Appealed Order (Abstract of Judgment) at 1. The

judgment of conviction states that the trial court found Hampton guilty of

“Count I, Robbery, a Level 3 Felony; Count II, Battery, a Level 5 Felony; and

Count III, Criminal Recklessness[,] a Level 6 Felony.” Appealed Order

(Judgment of Conviction) at 1. The judgment of conviction also shows that for

purposes of sentencing, Counts II and III “merge” with Count I. Id.

[17] We observe that “a double jeopardy violation occurs when judgments of

conviction are entered and cannot be remedied by the practical effect of

concurrent sentences or by merger after conviction has been entered.” Payton v.

State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004) (quotation marks omitted),

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trans. denied (2005); see also Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App.

2017) (concluding that merger of convictions was insufficient to remedy double

jeopardy violation); West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014)

(same), trans. denied (2015); Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct.

App. 2013) (same). Therefore, we remand this cause to the trial court with

instructions to vacate the convictions on Counts II and III and enter judgment

of conviction and sentence only upon Count I.

[18] Affirmed and remanded.

May, J., and Pyle, J., concur.

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