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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Noble LEWIS Jr., Defendant-Appellant.
    NO. 4-15-0637
    Appellate Court of Illinois, Fourth District.
    April 13, 2018
    Michael J. Pelletier, Jacqueline L. Bullard, and Sonthonax B. SaintGermain, of State Appellate Defender's Office, of Springfield, for appellant.
    Jacqueline Lacy, State's Attorney, of Danville (Patrick Delfino, David J. Robinson, and Linda S. McClain, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In March 2015, the State charged defendant, Noble Lewis Jr., with home invasion ( 720 ILCS 5/19-6 (West 2014) ) and domestic battery (subsequent offense) (id. § 12-3.2(a)(2) ). In April 2015, a jury found defendant guilty of domestic battery but not guilty of home invasion. The trial court later sentenced him to five years in prison.

¶ 2 Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court erred because, when the deliberating jury requested to hear again the compact disc recording of the victim's 911 call, the court had the jury brought into the courtroom where the compact disc was replayed in the presence of the court, both counsel, and the defendant, (3) his trial counsel rendered ineffective assistance of counsel, and (4) this court should vacate the purported fines imposed by the circuit clerk but not imposed by the judge.

¶ 3 We reject defendant's first three arguments but agree with his fourth. Accordingly, we vacate the clerk-imposed fines, and we otherwise affirm the trial court's judgment.

¶ 4 I. BACKGROUND

¶ 5 Defendant's jury trial occurred in April 2015, and the following facts are undisputed.

¶ 6 From about 9:30 a.m. to 11 a.m. on February 28, 2014, defendant's then-girlfriend, Kelly Glore, had coffee in Danville, Illinois, with a friend, Glen Fink. At the time, defendant, a mechanic by trade, was working on a car and drove it to AutoZone to buy some parts. While there, he received a telephone call from Glore, who wanted him to pick her and Fink up from Kmart because it was too cold for them to wait for the bus. Defendant did so, dropped Fink off at his destination, and dropped Glore at her apartment on Fairweight Avenue. Defendant then resumed work on the car.

7 At 4:30 p.m. or 5 p.m., he finished with the car and arrived at Glore's apartment around 5:30 p.m. He cooked supper, which he and Glore ate while drinking vodka. Around 7 p.m. or 8 p.m., a man whom defendant knew, Michael Roberson, arrived at the apartment, and defendant introduced him to Glore.

¶ 8 At this point, the accounts from Glore and defendant as to what happened substantially differ.

¶ 9 A. The State's Case-in-Chief

¶ 10 1. The Testimony of Kelly Glore

¶ 11 Glore testified that when Roberson came over, he and defendant smoked crack cocaine. As she was lying on a mattress in the living room, Roberson looked over at her and asked, " 'Ma'am, which room do I get?' " Thinking he was just talking nonsense because he was high, she at first ignored him. When he repeated the question, she responded, " 'What do you mean, which room do you get?' " He explained he had paid defendant $50 to live in her apartment.

¶ 12 Upon receiving this news, Glore asked defendant to come with her to the bedroom so she could talk with him. During their conversation in the bedroom, she told defendant "he needed to leave and sober up for a couple of hours." The prosecutor asked her:

"Q. What happened?
A. At that point, I saw a look in his eyes, and I got scared and ran outside. I ran to the apartment steps, ran to the side of the apartment, and I called the police, and then I ran back up the steps and ran toward my apartment, and [defendant] was going to throw me over the balcony, so I braced myself between the balcony and the girl's apartment door[,] and that's when he was punching me in the head and face."

¶ 13 After defendant "let [her] up," she went back into her apartment. Both he and Roberson had "[taken] off." Defendant "probably realized that [she had] called the cops."

¶ 14 The police arrived at her apartment, and she told them what had happened. The police looked for defendant but could not find him. They told her to call them back if he returned.

¶ 15 About 2 a.m., defendant kicked in the door of her apartment. When he did so, she was lying on the mattress in her living room and had not left the apartment since the police had been there. She explained what happened next, as follows:

"At first, he came after me with a staple gun. Then he grabbed a kitchen chair and put a hole in the wall, broke the kitchen chair, and then he put a mask on his face, and I asked [him] why he was putting the mask on his face, and he said so that way when he kills me, we [sic ] couldn't identify him. Then he put some gloves on, and I asked him why he put the gloves on. He said because that way they won't get any fingerprints from him. He had two knives in his hand[,] and he came to the mattress and jumped on top of me and told me he was going to kill me. First, he wanted to get the phone, but I had the phone stuffed under the mattress in my hand, and-when he had the knives to my neck, I told him-I took the [B]ible out to him, and then he got up, but it was God that called 911, because I couldn't see what I was calling. And then the police came in."

¶ 16 On cross-examination, Glore denied she smoked crack cocaine with Roberson when he came to her apartment with defendant, but she admitted smoking crack cocaine three months before the trial. She remembered going to the police station and giving a statement to a detective named Lewallen, but because "[it had] been a long time [ago]," she could not remember everything she had told him. She remembered telling him about the staple gun. However, she could not remember whether she told the detective that defendant had been living with her on Fairweight Avenue or that he had hit her eight times.

¶ 17 She agreed with defense counsel that this was "not the first time [she had] called the police on [defendant]," but she could not remember the date when she previously had done so. She and defendant had known each other for only a year prior to the trial. A previous battery occurred sometime when they lived together on East Main Street before she moved to Fairweight Avenue. She had defendant arrested for domestic battery on that previous occasion, and "[h]e spent some time in jail." When he was released from jail, she allowed him to move back in with her on East Main Street because she loved him.

¶ 18 2. The Recording of Glore's First 911 Call

¶ 19 The first 911 call that Glore made in the early morning of March 1, 2014, lasted 5 minutes and 20 seconds. The State played a compact disc, on which the call was recorded. In the 911 call, Glore, wailing and sobbing, identified her attacker as "Noble Lewis, Jr." She stated that he had left after punching her, she currently was alone in the apartment, and this was not the first time he beat her up.

¶ 20 3. The Testimony of Kyle Harrold

¶ 21 Kyle Harrold testified he was a Danville police officer. On March 1, 2014, around midnight, he received a dispatch to Fairweight Avenue regarding a domestic battery call. When he arrived at the apartment, the door frame was intact, and there were no obvious marks on the door. Inside, it was a "pretty standard apartment," with "nothing really out of place."

¶ 22 The prosecutor asked Harrold:

"Q. Could you please describe your own personal [observations] of what Kelly Gore looked like at that time?
A. At that time, she had swelling, some bruising and redness in the right corner of her right eye. She also had redness in her left ear."

¶ 23 After talking with Glore, Harrold attempted to locate the suspect but was unsuccessful. He told Glore to call back if the suspect returned to the apartment, and the police would come as fast as they could.

¶ 24 At about 2:15 a.m. on March 1, 2014, the dispatchers received a hang-up 911 call. They looked up the telephone number and discovered it was Glore's.

¶ 25 In response to the hang-up 911 call, Harrold returned to apartment No. 6 on Fairweight Avenue. As Harrold got out of his squad car, "a male black who was later identified as [defendant]" was on a porch. (In the courtroom, Harrold identified defendant as the man.) Upon seeing Harrold, defendant "ran back into the apartment." Harrold ran after him and up some stairs. When Harrold reached Glore's apartment, he found (1) the door of the apartment partly ajar, (2) a large mark, seemingly a shoe print, on the center left of the door, by the door handle, and (3) the door frame broken, with splinters of wood on the floor. Glore yelled, " ['C]ome in and get him[!'] " On Harrold's instructions, she ran out of the apartment, and defendant came into the living room. Harrold then arrested him.

¶ 26 4. The Testimony of Danielle Lewallen

¶ 27 Danielle Lewallen testified she was a Danville police officer currently assigned to the second-shift patrol, but in March 2014 she was assigned to the detective division. (She explained that patrol officers in the Danville Police Department normally were rotated into the detective division, where they remained for a year, and then were rotated out again.)

¶ 28 On March 1, 2014, at about 2 a.m., the dispatcher notified her of a hang-up 911 call. The 911 call history indicated an address on East Main Street, and at first Lewallen went to that address, but nothing appeared to have happened there. Harrold then informed Lewallen that only a few hours earlier he handled a domestic call on Fairweight Avenue, at apartment No. 6, Glore's apartment. So, Lewallen and Harrold went to that address.

¶ 29 Upon arriving, they found the door of the apartment busted in and a shoe print on the door. Two people were in the apartment, defendant and Glore. The interior of the apartment was in disarray, things were strewn around, and a chair and a lamp were broken. Lewallen photographed a kitchen knife that Harrold told her allegedly had been used against Glore. Lewallen did not recall seeing a staple gun.

¶ 30 She photographed injuries to Glore's face, neck, and left ear. Glore was upset. She said it was her apartment and that defendant stayed there every night.

¶ 31 The prosecutor asked Lewallen:

"Q. *** Defense counsel asked you about Ms. Glore making comments that she had smoked crack that-on-about the time this happened. Did she indicate to you what time of day that she had smoked crack?
* * *
A. She advised she went for coffee that morning, and after she went for coffee, she had smoked some crack, and that [defendant] had smoked crack with her, and he had continued to smoke crack throughout the day.
Q. Did she indicate if she stopped smoking crack at any point during that day?
A. She didn't advise that she had smoked any crack after the initial time she advised. I do not recall the initial time."

¶ 32 B. Defendant's Case

¶ 33 1. The Testimony of Defendant

¶ 34 Defendant took the stand in his own behalf. He testified that he and Glore began dating one another in February 2013 and that, at some point, he moved in with her on East Main Street. Her electricity and water had been turned off for nonpayment, and he assisted her financially by putting the utilities in his own name. He "help[ed] her *** get her life together," and according to him, "[s]he liked that in [him]."

¶ 35 On August 30, 2013, while they were living together on East Main Street, Glore asked defendant to give her some money, and he refused. In retaliation, she accused him of battering her, even though he "never put a hand on her." He returned to the house in the evening after working on a car, and he tried to get in the back door, but she had blocked it with a refrigerator, and she ran out the front door.

¶ 36 The police arrested him and took him to jail, where he remained until October 8, 2013. On that date-even though he was innocent-he pleaded guilty to simple battery so he could get out of jail in time for Thanksgiving and Christmas. (Later, on cross-examination, he admitted he was convicted in 2013 of domestic battery.) He had children, and it was important to him to be with them during the holidays.

¶ 37 In 2013, while defendant was in jail, Glore visited him and promised "she would try to do better." He was "kind-hearted," and he "cared for her" and did not want to see her homeless. So, when he was released from jail, he reestablished his relationship with her and helped her move from the East Main Street residence, from which she was being evicted, to the apartment on Fairweight Avenue. He moved in with her again.

¶ 38 Defendant testified that on February 28, 2014, when defendant went to AutoZone to buy parts, Glore telephoned him and asked him to come to Kmart to give her and Fink a ride. Defendant then picked them up in the car he was working on. He dropped Fink "off at Valleyview" and Glore at the apartment on Fairweight Avenue, and he resumed work on the car.

¶ 39 Defense counsel asked defendant:

"Q. I'm going to back you up a little bit. You picked them up. Where did you pick them up?
A. By K-Mart.
Q. Did something happen while Ms. Glore was getting in the car?
A. Yeah. She was in such a hurry to get in the car when the door opened, she got in, but she bumped her head both times getting in. It was a small car. Trying to get in as fast as she was getting in, she didn't get in all the way. She crashed with the door. I didn't see if she was okay. She got in, [']I'm okay. I'm okay.[']
Q. Is that your understanding that's how she has the bump on the side of her head?
A. Yes."

¶ 40 Around 4:30 p.m. or 5 p.m. on February 28, 2014, defendant finished working on the car, and its owner dropped him off at the apartment on Fairweight Avenue. Only Glore was there. He cooked dinner for the two of them. Defense counsel asked him:

"Q. Did [Glore] eat dinner that night?
A. She nitpicked at it, but I kind of knew why she nitpicked.
Q. Why is that?
A. She's been getting high.
Q. Is that normal for her to do?
A. She does it every day. But like I said, it's just every day.
Q. When she's high, she doesn't eat much?
A. No."

¶ 41 Around 7 p.m. or 8 p.m., Roberson came to the apartment. Defendant introduced him to Glore and had a drink with him, and Roberson and Glore talked. "Next thing you know, they found out that they do the same thing," that is, "[t]hey party alike." Roberson bought $20 of crack cocaine (from whom is unspecified), and he and Glore shared it while defendant washed dishes. Then they all "sat and talked and talked, kicking it, you know." Then Roberson bought another $20 of crack cocaine, and "they got that." By 12:30 or 1 a.m. on March 1, 2014, "[Glore] wanted some more, and [Roberson] wanted some more, but all [Roberson] had was $10," and no dealer would take the risk of bringing a mere "$10 worth of stuff." Defendant continued:

"Me and [Roberson] left together, because the party was over with. They couldn't get no more stuff. So, okay. I said well-then she had a thing about I'm always doing that. That's when I told her, 'You supposed to be trying to quit this stuff. I'm doing what I'm trying to do, but you getting mad because he only got $10 left.' So, I don't understand. But anyway, I'm going to get some tobacco before the store closes."

¶ 42 So, around 1 a.m. or 1:15 a.m., defendant left the apartment with Roberson and set out on foot for Main Package on East Main Street to buy tobacco. The store's closing time was 2 a.m. or 2:30 a.m., and "[o]n a good day," it was a 25-minute walk to the store, one way. It was cold and slippery out. Defense counsel asked defendant:

"Q. Okay. Did you take your billfold with you?
A. No. I left my billfold, my cell phone[,] and the house key in the dresser, because I was just running down the street. Ain't thinking about-I had the money in my pocket. I didn't have to grab none of that stuff. I never thought, you know, I would have no trouble getting in. I never had trouble getting in before, unless she lost her key. Well, she did lose her key."

¶ 43 After buying a bag of tobacco at Main Package, defendant walked back to the apartment on Fairweight Avenue. He estimated it was "probably about an hour, roundtrip," and he arrived back at the apartment "around probably 2:15 [a.m.], maybe." He knocked on the door of the apartment and yelled at Glore to unlock the door, but there was no response. "[K]nowing that when she's been on a binge like that, she can go to sleep and can't wake up," he "just had to push the door open." The door had "been jimmied before, so it wasn't hard to do." He found Glore lying on the mattress in the living room. She appeared to have just awakened, and she looked stunned and baffled, as if she did not know what he was doing.

¶ 44 Defense counsel asked defendant:

"Q. Where did you go next?
A. I went to the kitchen to hang my coat up and took off everything. I was telling her, I said the door was locked. I had to jimmy it. So, you know, I get ready to start picking up the pieces. That's when I looked out the door and seen the police was coming up. I looked out the door and asked her why she called the police. She never said nothing. All I know then, they was just wanting to get me down. I told them I couldn't get down. I was trying to explain to them, I got 13 pins and stuff in my leg, so I can't get down."

¶ 45 Defendant denied ever hitting Glore or holding a knife or staple gun to her throat. He also denied kicking the door of her apartment. He insisted he was incapable of kicking and that, instead, he merely pushed the door open with his shoulder.

¶ 46 2. The Testimony of Norman Lewis

¶ 47 Norman Lewis testified he was defendant's brother and that defendant and Glore had been in a dating relationship for "[r]oughly two years." He helped them move appliances to the house on East Main Street and, later, to the apartment on Fairweight Avenue. He had been to the apartment on Fairweight Avenue once or twice to pick them up and give them a ride. It was his understanding that defendant lived in the apartment with Glore, just as he had lived with her on East Main Street. He opined that the exterior of the apartment needed repairs, particularly the door. He testified: "The door, the steps all the way up to the apartment, was kind of rugged. The door, you had to twist the knob, pick it up, try to bump it open, and you have to do the same thing when you shut it." The door "wasn't that secure."

¶ 48 3. The Testimony of Kyle Harrold

¶ 49 Defense counsel asked Harrold:

"Q. [On March 1, 2014, at the Fairweight Avenue apartment, w]hen you spoke with Kelly Glore, did she tell you that there was a staple gun that was used?
A. No, she did not.
Q. Did she tell you that there was one knife or two knives?
A. One knife."

¶ 50 C. The State's Case in Rebuttal

¶ 51 1. The Testimony of Danielle Lewallen

¶ 52 The prosecutor asked Lewallen about her interview of defendant on March 3, 2014, at the county jail. Specifically, the prosecutor asked her what he said "in regards to how he got inside of the apartment at Fairweight [Avenue] on the night that he was arrested." Lewallen answered: "He stated to me in the statement that Ms. Gore would not let him back into the residence, so he kicked the door in."

¶ 53 D. Notes From the Jury During Deliberations

¶ 54 1. The Note Asking What Is a "Place of Residence"

55 At 10:07 a.m. on April 22, 2015, the jury began its deliberations.

56 At 11:01 a.m., the jury sent out a note asking, "What constitutes your place of residence?" The trial court wrote in response: "You have the jury instructions." (The court had instructed the jury that knowingly and without authority entering the dwelling place of another was an element of home invasion and that a "dwelling place" was "a building or portion of a building which [was] used or intended for the use as a human habitation, home, or residence.")

¶ 57 2. The Note Requesting to Listen to the 911 Recording Again

58 At 11:34 a.m., the jury sent out a note asking, "Can we have the 911 CD for us to listen to, tape player as well?"

¶ 59 Defense counsel asked the prosecutor if not only the first 911 call but also the second one was on the compact disc (People's exhibit No. 2). The prosecutor believed it was. The trial court asked: "What was the second one? Just a hang-up?" Defense counsel answered, "It's, like, a minute of background stuff."

¶ 60 The prosecutor was of the view that because he had not played the second (hang-up) 911 call to the jury, "it would be inappropriate for them to hear that" now. He argued, therefore, that if the court, in its discretion, allowed the jury to hear the first 911 call again, the jury should do so in the courtroom "so we can control them not hearing the second call." The court asked: "So, you want to bring them out here so they can hear it?" Defense counsel responded:

"I think that's probably safest." Defense counsel then asked the prosecutor if possibly someone in his office "could just burn the first call." The prosecutor responded: "I'd rather not tamper with evidence." The following discussion occurred:

"THE COURT: We're not going to do that. We're back on the record. Do you want me to go back and tell them that we're bringing them into the courtroom to listen to it, or do you want to just bring them in, or-
MS. PERRY [ (PROSECUTOR) ]: Whatever the [c]ourt-
MS. BEZNER [ (DEFENSE COUNSEL) ]: I would say to just bring them in.
MS. PERRY: I would say bring them in, Judge, and maybe admonish them out here that for legal reasons, we can't allow you to take it back into the jury room, but you can listen to it out here."

61 At 11:40 a.m., the jury was brought back into the courtroom. The trial court told the jury the following:

"THE COURT: For legal reasons, I can't send the tape player and the disc back to you in the jury room, but we're going to let you listen to it again out here. Okay.
MR. PERRY: For the record, I'm playing the disc.
(Peoples exhibit [No.] 2 played for the jury)
THE COURT: Okay. You can take them back in the jury room.
(Jury released back to the jury room to deliberate at 11:46 a.m.)"

¶ 62 Thereafter, the jury found defendant guilty of domestic battery but not guilty of home invasion.

¶ 63 II. ANALYSIS

¶ 64 Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court erred because, when the deliberating jury requested to hear again the compact disc recording of the victim's 911 call, the court had the jury brought into the courtroom where the compact disc was replayed in the presence of the court, both counsel, and the defendant, (3) his trial counsel rendered ineffective assistance of counsel, and (4) this court should vacate the purported fines imposed by the circuit clerk but not imposed by the judge. We will address these contentions in turn.

¶ 65 A. The Sufficiency of the Evidence

¶ 66 In the domestic battery count ( 720 ILCS 5/12-3.2(a)(2) (West 2014) ), the State charged that on or about March 1, 2014, defendant knowingly and without legal justification made physical contact of an insulting or provoking nature with Glore, a household or family member, and that he committed this domestic battery after having previously been convicted of domestic battery. Defendant argues that the State failed to prove him guilty beyond a reasonable doubt because (1) Glore was impeached by inconsistencies between her 911 call and her trial testimony and (2) Glore's testimony had no support in the physical evidence. We will first address the alleged inconsistencies.

¶ 67 1. Inconsistencies Between Glore's 911 Call and Her Trial Testimony

¶ 68 Defendant argues that in her 911 call, Glore "clearly stated that she was currently alone in the apartment," whereas she testified at trial that she made the 911 call while defendant and Roberson were still in the apartment. (According to her testimony, defendant and Roberson had "[taken] off" because defendant "probably realized that [she had] called the cops.") However, this supposed inconsistency is explainable because Glore might have dialed 911 while defendant and Roberson were still in the apartment, and they might have left as she was making the call, thus leading her to tell the 911 operator she now was alone in the apartment. We note that the 911 call literally begins with Glore's yelling, "Fuck you!"-as if at defendant's departing back-and when the 911 operator first asks Glore where defendant is, she seems to answer, "At the door." (Glore is sobbing and wailing and breathing heavily throughout the recording, and understanding her is at times difficult.)

¶ 69 Later in the call, Glore seems ambivalent as to where defendant is. For instance, she says she has not opened the door (presumably, the door to the apartment) and thus she does not know if he is still there. Only later in the call can she confidently answer that she is alone in the apartment, and she suggests that defendant probably is running down an alley. Therefore, when we look at the evidence in the light most favorable to the prosecution, as we are required (see People v. Hall , 194 Ill. 2d 305, 330, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000) ), the supposed inconsistency does not necessarily exist.

¶ 70 Defendant contends a further inconsistency exists in that, in the 911 call, Glore reported that defendant already had punched her. However, in her trial testimony, she stated she made the 911 call out of fear that he would punch her and that he punched her after she made the 911 call.

¶ 71 Despite this inconsistency, when looking at all the evidence in the light most favorable to the prosecution, we are not convinced that all reasonable triers of fact consequently would find Glore to be unbelievable as a result. We acknowledge, of course, that testimony can be so pervasively inconsistent and so wildly implausible that no sensible trier of fact could possibly believe it. People v. Smith , 185 Ill. 2d 532, 541-45, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999) ; People v. Williams , 65 Ill. 2d 258, 266, 2 Ill.Dec. 358, 357 N.E.2d 525 (1976) ; People v. Williams , 383 Ill. App. 3d 596, 643, 322 Ill.Dec. 613, 891 N.E.2d 904 (2008). However, putting Glore's testimony in that category would be a gross exaggeration. A witness need not be ideal to be believed. "Inconsistencies in and contradictions of testimony do not destroy credibility as a matter of law. [Citation.] Rather, the credibility of witnesses and the weight to be given their testimony are for the jury to decide." People v. Vazquez , 194 Ill. App. 3d 516, 518, 141 Ill.Dec. 469, 551 N.E.2d 656 (1990).

¶ 72 2. The Lack of Physical Evidence to Substantiate Certain Parts of Glore's Testimony

¶ 73 Defendant points out that although Glore testified he "came after [her] with a staple gun," the police found no staple gun on the scene. Defendant also argues that although Glore testified he held two knives to her neck and although a kitchen knife was located in the apartment, no evidence was offered, beyond her testimony, that he really attacked her with a knife. The photographs showed no knife injury to her neck.

¶ 74 Again, these apparent discrepancies in the evidence are not, as a matter of law, dispositive. See People v. Bowen , 289 Ill. App. 3d 378, 384, 224 Ill.Dec. 892, 682 N.E.2d 453 (1997). Defendant might have put away the staple gun when he realized the police were on the way, and he could have held a knife to Glore's neck without cutting her with it.

¶ 75 Alternatively, the jury might have regarded these discrepancies as genuine but insufficient to make Glore unbelievable when it came to the beating she said she received from defendant. After all, she sounds quite hysterical and distraught in the 911 call, and the State presented photographs of her battered face.

¶ 76 Further, defendant's explanation for how she received the facial injuries, i.e. , accidentally running headlong into the door frame of the car-twice, no less-when he picked her up at Kmart, is arguably so implausible as to lead to the inferences that (1) defendant deliberately lied in this respect and (2) his reason for lying was that he was in fact the one who inflicted the facial injuries on Glore. The jury might also have found defendant's story implausible when he claimed he walked an hour on a cold, icy night at 1 a.m. to buy tobacco or that he nonaggressively pushed the door of Glore's apartment open with his shoulder instead of kicking it in, as he originally told the police at the county jail. The jury may well-and justifiably-have regarded his implausible stories as circumstantial evidence of guilt. See People v. Mister , 2016 IL App (4th) 130180-B, ¶ 113, 405 Ill.Dec. 658, 58 N.E.3d 1242 ("Moreover, defendant's lies are evidence of his consciousness of guilt.").

¶ 77 In sum, when we look at all the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could find defendant guilty beyond a reasonable doubt. Hall , 194 Ill. 2d at 330, 252 Ill.Dec. 653, 743 N.E.2d 521. In so concluding, we note that a reviewing court generally will not substitute its judgment for that of the trier of fact when the trier of fact determines the credibility of the witnesses, the weight to be given to their testimony, and the inferences drawn from the evidence. People v. Bradford , 2016 IL 118674, ¶ 12, 401 Ill.Dec. 630, 50 N.E.3d 1112. A reviewing court will reverse a conviction only where the evidence is so improbable and unsatisfactory it creates a reasonable doubt as to defendant's guilt. Id.

¶ 78 B. Replaying the 911 Recording to the Jury in the Courtroom During Deliberations

¶ 79 1. Invited Error

¶ 80 Next, defendant argues that the trial court committed reversible error by replaying the 911 recording (People's exhibit No. 2) to the jury in the courtroom in the presence of the parties during deliberations. Assuming, for the sake of argument, that this was indeed an error (an assumption with which we disagree, as we soon will explain), defendant, through his defense counsel, invited the supposed error by affirmatively agreeing with the prosecutor's suggestion that the jury be brought back into the courtroom to hear the replaying of the 911 recording. See People v. Spencer , 2014 IL App (1st) 130020, ¶ 26, 386 Ill.Dec. 409, 20 N.E.3d 785 ("For the doctrine [of invited error] to apply, the defendant must affirmatively request or agree to proceed in a certain way."). Defendant "invited or agreed to the procedure and is now estopped from asserting it as error." People v. Bowman , 221 Ill. App. 3d 663, 666, 164 Ill.Dec. 560, 583 N.E.2d 114 (1991).

¶ 81 Defendant disputes the fairness of the invited-error doctrine in this situation because the prosecutor and the trial court declined defense counsel's suggestion of recording the 911 call on another compact disc from which the second (unadmitted) 911 call would be excluded. Even so, however, defense counsel did not need to agree to a replay of the 911 recording (People's exhibit No. 2) in the courtroom. Alternatively, defense counsel could have argued for sending the exhibit and a CD player to the jury room with instructions to listen to only the first 911 call. A jury is presumed to follow instructions.

People v. Pulliam , 206 Ill. 2d 218, 256, 276 Ill.Dec. 319, 794 N.E.2d 214 (2002). Or defense counsel could have argued against allowing the jury to hear the 911 recording again, either in the jury room or the courtroom. See People v. McDonald , 329 Ill. App. 3d 938, 947, 264 Ill.Dec. 171, 769 N.E.2d 1008 (2002) ("The decision whether to allow jurors to take exhibits into the jury room is left to the sound discretion of the trial court."); People v. Panzer , 73 Ill. App. 3d 1, 8-9, 29 Ill.Dec. 204, 391 N.E.2d 467 (1979) (to avoid undue emphasis on a single item of evidence, the trial court was justified in refusing to allow the defendant's written statement to go to the jury room). In other words, by rejecting, as impractical or too risky, defense counsel's suggestion of copying the first 911 recording onto another CD while somehow avoiding copying the second 911 recording, the prosecutor and the court did not really reduce defense counsel to only one potential position.

¶ 82 We point out that defendant's posttrial motion did not raise the alleged error of replaying the 911 recording to the jury in the courtroom during its deliberations. A defendant must both (1) object at trial to an alleged error and (2) raise the alleged error in his posttrial motion. A defendant's failure to do either means that the alleged error is forfeited for purposes of an appeal. See People v. Reese , 2017 IL 120011, ¶ 60, --- Ill.Dec. ----, --- N.E.3d ---- ; People v. Williams , 2017 IL App (1st) 142733, ¶ 46, 417 Ill.Dec. 425, 88 N.E.3d 66. An exception to this rule applies if a defendant asserts that the error involved is so egregious that plain-error analysis should apply, thereby overcoming the defendant's forfeiture. However, under the circumstances of this case-specifically, defense counsel's acquiescence in the very trial court ruling he now wishes to challenge-defendant is barred from asserting that the plain-error doctrine applies. We reiterate what this court wrote in People v. Dunlap , 2013 IL App (4th) 110892, ¶ 12, 372 Ill.Dec. 645, 992 N.E.2d 184, as follows:

"We also note that plain-error analysis does not apply to this case. Plain-error analysis, of course, 'applies to cases involving procedural default ***, not affirmative acquiescence.' [ People v. Bowens , 407 Ill. App. 3d 1094, 1101 [348 Ill.Dec. 339, 943 N.E.2d 1249] (2011) ]. When, as here, defense counsel affirmatively acquiesces to actions taken by the trial court, a defendant's only challenge may be presented as a claim for ineffective assistance of counsel on collateral attack."

In fact, defendant does allege that his trial counsel was ineffective regarding the replaying of the 911 recording, an allegation we address later in this opinion.

¶ 83 2. Defendant's Claim of Structural Error

¶ 84 Defendant argues it was a structural error to influence the jury's deliberations by bringing the jury back into the courtroom for the replaying of the 911 recording. Because structural errors require "automatic reversal," whether a structural error was invited is irrelevant because reversal nevertheless would be "automatic" in order to preserve the integrity of the judicial process. People v. Belknap , 2014 IL 117094, ¶ 85, 387 Ill.Dec. 633, 23 N.E.3d 325. In support of this contention, defendant cites Justice Holdridge's dissent in People v. McKinley , 2017 IL App (3d) 140752, ¶ 44, 412 Ill.Dec. 15, 74 N.E.3d 482 (Holdridge, P.J., dissenting).

¶ 85 For reasons we will explain, we conclude the trial court committed no error by replaying the 911 recording in the courtroom. In the absence of any error, no claim of structural error could be justified. (Even though we conclude that structural error is not present in this case, we note that the United States Supreme Court recently explained the "concept of structural error" in Weaver v. Massachusetts , 582 U.S. ----, ----, 137 S.Ct. 1899, 1907-08, 198 L.Ed.2d 420 (2017), and we have doubts whether defendant's structural error claims could ever meet the standards the Court explained in its discussion of structural error.)

¶ 86 To put Justice Holdridge's dissent in context, we will discuss the facts in McKinley . The defendant in that case was charged with aggravated driving under the influence (aggravated DUI) ( McKinley , 2017 IL App (3d) 140752, ¶ 3, 412 Ill.Dec. 15, 74 N.E.3d 482 (majority opinion) ), and in its case-in-chief, the State played for the jury a video of the traffic stop ( id. ¶¶ 8-9 ). During its deliberations, the jury sent out a request to watch the video again. Id. ¶ 11. The judge had the bailiff bring the jury back into the courtroom, and the judge told the jury that because " 'two court calls [were] in process,' " a substitute judge would be present in the courtroom while the video was being replayed. Id. Before the video was replayed, the judge instructed the jury: " 'No one will make any additional comments about the video, and there won't be any questioning of any of the attorneys or anything along those lines.' " Id. Defense counsel made no objection to these remarks. Id. The jury then watched the video in the presence of the substitute judge, the prosecutor, defense counsel, the defendant, and the bailiff. Id. Afterward, the jury found the defendant to be guilty of aggravated DUI. Id. ¶ 12.

¶ 87 On direct appeal, the defendant in McKinley argued the trial court had erred by allowing the jury, during its deliberations, to view the video in the courtroom instead of in the jury room. Id. ¶ 1. Justice Carter was the lead author in McKinley , and he along with Justice O'Brien concluded that no reversible error occurred. In reliance on United States v. Olano , 507 U.S. 725, 737-38, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), People v. Johnson , 2015 IL App (3d) 130610, 399 Ill.Dec. 236, 46 N.E.3d 274, and People v. Rouse , 2014 IL App (1st) 121462, 384 Ill.Dec. 1, 16 N.E.3d 97, Justice Carter found neither of the alternative elements of plain error to have been met. McKinley , 2017 IL App (3d) 140752, ¶¶ 16, 25-27, 412 Ill.Dec. 15, 74 N.E.3d 482. One of the alternative elements was that "a clear or obvious error [had] occurred and the evidence [was] so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error." (Internal quotation marks omitted.) Id. ¶ 25.

¶ 88 Justice Carter saw no abuse of discretion and, hence, no error (let alone plain error) in allowing the jury, during its deliberations, to view the video in the courtroom. Id. ¶ 23. No one spoke to the jury while the video was being replayed, and the record showed no prejudice to the defendant. Id. Justice Carter was unconvinced that the mere presence of the substitute judge, the prosecutor, defense counsel, the defendant, and the bailiff "affected the jury's ability to analyze the video." Id. Although he found that no prejudice and, thus, no error had been shown, Justice Carter cautioned "that the procedure utilized by the court in the instant case could have the potential of becoming problematic and possibly lead to prejudicial error in some cases." Id. However, in Justice Carter's view, even if this procedure were erroneous, the evidence was not closely balanced, and therefore, the error would be harmless. Id. ¶ 26.

¶ 89 The second, alternative element of plain error (sometimes referred to as structural error) is that "a clear or obvious error occurred and that error [was] so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." (Internal quotation marks omitted.) Id. ¶ 25. Justice Carter was unconvinced that "the circuit court's decision with regard to the video" was a "structural error" in that sense. Id. ¶ 27.

¶ 90 Justice O'Brien disagreed with Justice Carter about the absence of error ( id. ¶ 32 (O'Brien, J., specially concurring) ), although she ultimately specially concurred because she concluded that the evidence was not closely balanced; accordingly, plain error did not apply ( id. ¶ 36 ). She believed "it was error to allow anyone to be present with the jury when [it] viewed the video during [its] deliberations," even if the jurors said nothing to one another while viewing the video and even if no one said anything to the jurors. Id. ¶ 32. Silent deliberation, she reasoned, was nonetheless deliberation. She explained further, as follows:

"While some may argue that jury deliberations constitute only the actual discussion of evidence and not its mere viewing, I believe this distinction is one without significance. The discussion of evidence is no different than the viewing of evidence, as both occur after the jury is ordered to deliberate, i.e. , jury deliberations. Thus, upon a jury being ordered to deliberate, the circuit court must ensure that said deliberations are entirely private. Requiring the jury, in the instant case, to view the video in the courtroom and in the presence of the parties was improper." Id. ¶ 35.

¶ 91 Justice Holdridge, in his dissent, disagreed with Justice O'Brien that allowing a deliberating jury to see a video again in the courtroom was erroneous per se . Id. ¶ 39 (Holdridge, P.J., dissenting). He believed it was a structural error, however, to have the deliberating jury view the video in the courtroom in conjunction with the instruction the trial court gave, that " '[n]o one [was to] make any additional comments about the video.' " Id. ¶¶ 43-44. Justice Holdridge wrote the following:

"After hearing the instruction, it is reasonable to assume that the jurors would not have known if they were allowed to discuss the video among themselves once they returned to the jury room. I believe this fact, when viewed in conjunction with the fact that the jury was removed from the deliberation room and required to view the videotape in the courtroom and in the presence of the judge, parties, and bailiff, supports the conclusion that the circuit court abused its discretion in the manner in which it allowed the jury to review the videotape. Stated another way, while a circuit court has the inherent authority to control its courtroom, such authority does not excuse conduct that results in the chilling of jury deliberations." Id. ¶ 41.

¶ 92 Thus, although Justice Holdridge agreed with Justices Carter and O'Brien that the evidence was not closely balanced, he argued that prejudice should be presumed from the conjunction of what he viewed as the erroneous instruction and the presence of the outsiders in the courtroom. He wrote that "[t]hough we cannot be certain that [the instruction] prevented the jury from discussing the video once [the jury] returned to the jury room, we can presume *** that the instruction inhibited the jury's ability to deliberate." Id. ¶ 43.

¶ 93 With all due respect to our distinguished Third District colleagues, we disagree with all of the views they expressed in McKinley . We recently rejected the argument that allowing a jury to view a video in the courtroom during deliberations amounted to a structural error, and we adhere to that view. People v. Matthews , 2017 IL App (4th) 150911, ¶ 43, 419 Ill.Dec. 478, 93 N.E.3d 597. We wrote that "even if we agreed with [the] defendant that the trial court erred in allowing the jury to view the video in the courtroom during deliberations, we find the alleged error does not rise to the level of structural error under the plain-error doctrine." Id.

¶ 94 3. Suggested Procedures When Replaying a Recording to a Deliberating Jury

¶ 95 To be clear, we now reject outright the argument that this procedure is even erroneous, let alone structurally erroneous. If a deliberating jury requests to hear an audio recording or to see a video recording again, the trial court does not have to send the recording and equipment to the jury room but may instead exercise its discretion to bring the jury into the courtroom for a replaying of the recording. See State v. Davidson , 509 S.W.3d 156, 203 (Tenn. 2016) (surveying numerous cases from other jurisdictions, all of which "found no abuse of discretion by the trial court in allowing the jury to review or rehear recorded evidence in open court"); State v. Hughes , 225 W.Va. 218, 691 S.E.2d 813, 826-27 (2010) (it is "universally accepted" that a trial court may allow the jury, during deliberations, to return to open court to review a tape recording admitted in evidence). Allowing a deliberating jury to listen to a recording again in the courtroom instead of in the jury room avoids problems with equipment and the skills necessary to operate the equipment ( State v. Jones , 314 Conn. 410, 102 A.3d 694, 702 (2014) ) and also "minimizes the risk of breakage or erasure of the recording" ( State v. Anderson , 2006 WI 77, ¶ 30, 291 Wis. 2d 673, 717 N.W.2d 74 ).

¶ 96 When a deliberating jury returns to the courtroom and, in the presence of the judge, the parties, the lawyers, and court personnel listens again, in silence, to an audio recording, the jury does nothing different from what it did before, when the recording originally was played. Assuming the trial court has properly instructed the jury regarding this procedure, we adhere to the majority view and reject the notion that replaying an audio or visual recording is improper.

¶ 97 Accordingly, we conclude that if a jury, during its deliberations, requests to see or hear a recording again, the trial court need not send the recording and equipment into the jury room but instead may, in its discretion, have the jury brought back into the courtroom for a replaying of the recording. Justice Carter is correct that "the mode and manner in which a circuit court allows a jury to review a piece of evidence" (in this case, the 911 recording) "falls directly within the scope of the court's inherent authority to manage its courtroom." McKinley , 2017 IL App (3d) 140752, ¶ 22, 412 Ill.Dec. 15, 74 N.E.3d 482 (majority opinion). Thus, if the court chooses to have the recording replayed in the courtroom, the court, parties, and counsel must be present to view or hear the evidence, and the court should instruct the jury not to discuss the evidence while in the courtroom. The court should also in the jury's presence admonish everyone else in the courtroom not to comment on the evidence, communicate with the jury, or try in any manner to influence the jury. See Davidson , 509 S.W.3d at 204. Further, to avoid the concerns expressed by Justice Holdridge in his dissent, the court should instruct the jury that after the replay, the jury will return to the jury room and should then continue its deliberations, which may include, if it wishes, the replay.

¶ 98 In the present case, the trial court did not give these instructions and admonitions, but "[in] the record before us, we find no indicia of prejudice or anything improper having occurred during the replay of the [recording]." Rouse , 2014 IL App (1st) 121462, ¶ 79, 384 Ill.Dec. 1, 16 N.E.3d 97.

¶ 99 C. Defendant's Claim of Ineffective Assistance of Counsel

¶ 100 Last, defendant argues his trial counsel rendered ineffective assistance by "not supporting her suggestion to burn the 911 call on another CD with constitutional and statutory law."

¶ 101 A claim of ineffective assistance has two elements: (1) counsel's performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In evaluating a claim of ineffective assistance, we will not second-guess reasonable strategic decisions that counsel made at trial. People v. Sharp , 2015 IL App (1st) 130438, ¶ 125, 389 Ill.Dec. 370, 26 N.E.3d 460.

¶ 102 We deem counsel's agreement to replay the 911 recording in the courtroom in lieu of sending it to the jury room during deliberations to be a reasonable strategic decision. If the recording had gone back to the jury room (with a CD player), the jury could have played the recording over and over again in an attempt to ascertain everything Glore said to the 911 operator. (As we mentioned earlier, Glore was sobbing uncontrollably throughout most of the recording.) In our opinion, no wise trial counsel would want the jury to listen to the 911 recording over and over again because doing so could be emotionally upsetting.

¶ 103 For instance, Glore in the recording says such things as (if we hear her correctly) "He's already on probation for battery for hitting me," and "He won't leave me alone. He keeps coming back," and "He's trying to kill me and make me have seizures." Absolutely nothing in this recording could have possibly benefited the defense, but rather, from start to finish, this recording was damaging to the defense. (We are quick to add that despite this assessment, the admission of the recording was entirely appropriate. See People v. Pelo , 404 Ill. App. 3d 839, 867, 347 Ill.Dec. 260, 942 N.E.2d 463 (2010) (this court explained that evidence has an improper prejudicial effect only when the evidence in question "will somehow cast a negative light upon a defendant for reasons that have nothing to do with the case on trial"). In other words, the jury would be deciding the case on an improper basis, such as sympathy, hatred, contempt, or horror. Clearly, the evidence at issue here had everything to do with the case on trial.)

¶ 104 For the reasons stated, we can readily understand why a reasonable defense counsel would gratefully embrace the suggestion that the jury hear the 911 recording replayed only once in the courtroom as opposed to who knows how many times in the jury room.

¶ 105 Accordingly, we find no deficient performance by trial counsel, and we reject defendant's claim of ineffective assistance.

¶ 106 D. Clerk-Imposed Fines

¶ 107 In the sentencing hearing and in its sentencing order, the trial court imposed no fines upon defendant. Even so, the circuit clerk, in a "Payment Information" sheet, listed the following assessments, all of which this appellate court has held to be fines: $20 for victims of violent crime (see People v. Smith , 2014 IL App (4th) 121118, ¶ 63, 385 Ill.Dec. 367, 18 N.E.3d 912 ), $50 as a court-systems assessment (see People v. Daily , 2016 IL App (4th) 150588, ¶ 30, 411 Ill.Dec. 706, 74 N.E.3d 15 ), $2 for Crime Stoppers (see People v. Beasley , 2017 IL App (4th) 150291, ¶ 44, 416 Ill.Dec. 701, 85 N.E.3d 568 ), $3.80 as a drug court assessment (absent any indication that defendant participated in drug court) (see People v. Bradley , 2017 IL App (4th) 150527, ¶ 25, 416 Ill.Dec. 724, 85 N.E.3d 591 ), and $15 for State Police operations (see People v. Millsap , 2012 IL App (4th) 110668, ¶ 31, 366 Ill.Dec. 229, 979 N.E.2d 1030 ).

¶ 108 The State agrees with defendant's argument that because the imposition of fines is exclusively a judicial act and because a circuit clerk is not a judge, the purported fines listed above are void and should be vacated. See Smith , 2014 IL App (4th) 121118, ¶¶ 18, 63, 385 Ill.Dec. 367, 18 N.E.3d 912 ; People v. Larue , 2014 IL App (4th) 120595, ¶ 56, 381 Ill.Dec. 550, 10 N.E.3d 959. We accept the State's concession, and we vacate the clerk-imposed fines.

¶ 109 III. CONCLUSION

¶ 110 For the foregoing reasons, we affirm the trial court's judgment, vacate the clerk-imposed fines, and assess $75 in costs against defendant (see 55 ILCS 5/4-2002 (West 2014) ).

¶ 111 Affirmed in part and vacated in part.

Presiding Justice Harris and Justice Holder White concurred in the judgment and opinion.


source: Caselaw Access Project

author: All Justices concur.

license: Public Domain

text:
    Alberto Baiza RODRIGUEZ, Appellant, v. STATE of Indiana, Appellee.
    Supreme Court Case No. 18S-CR-143
    Supreme Court of Indiana.
    FILED July 12, 2018
    Published Order
    The Court of Appeals issued an opinion in this case reversing the trial court's order denying the appellant's motion to modify his sentence and remanding for further proceedings. See Rodriguez v. State, 91 N.E.3d 1033 (Ind. Ct. App. 2018). On March 15, 2018, we granted the State's petition to transfer, thereby vacating the Court of Appeals opinion. During the 2018 legislative session, the General Assembly amended Indiana Code sections 35-35-1-2 and 35-38-1-17, addressing guilty pleas and the reduction or suspension of a sentence, effective July 1, 2018. Section 35-38-1-17 provides that the section applies to a person who commits an offense or is sentenced before July 1, 2014, notwithstanding Indiana Code section 1-1-5.5-21.
    Accordingly, the Court REMANDS this case to the Court of Appeals to reconsider in light of the amended statutes. The Court of Appeals opinion reported at Rodriguez v. State, 91 N.E.3d 1033 (Ind. Ct. App. 2018), remains vacated.
   All Justices concur.


author: Per Curiam.

text:
    In the MATTER OF Douglas L. KRASNOFF, Respondent.
    Supreme Court Case No. 49S00-1603-DI-148
    Supreme Court of Indiana.
    Filed June 27, 2018
    RESPONDENT PRO SE: Douglas L. Krasnoff, Brownsburg, Indiana
    ATTORNEYS FOR INDIANA SUPREME COURT DISCIPLINARY COMMISSION: G. Michael Witte, Executive Director, Angie L. Ordway, Staff Attorney, Indianapolis, Indiana
    Attorney Discipline Action
   Per Curiam.

We find that Respondent, Douglas Krasnoff, engaged in attorney misconduct by practicing law while suspended and by intentionally misleading a client regarding his ability to work on her case. For this misconduct, the Court concludes that Respondent should be suspended for at least two years without automatic reinstatement, effective from the date of this opinion.

The matter is now before us on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's verified disciplinary complaint. Respondent's 1997 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

Procedural Background and Facts

The Commission filed a "Verified Complaint for Disciplinary Action" against Respondent on March 28, 2016, and we appointed a hearing officer. Following an evidentiary hearing, the hearing officer issued her report on March 14, 2018, finding Respondent committed violations as charged.

No petition for review of the hearing officer's report has been filed. When neither party challenges the findings of the hearing officer, "we accept and adopt those findings but reserve final judgment as to misconduct and sanction." Matter of Levy , 726 N.E.2d 1257, 1258 (Ind. 2000).

In August 2014, "Mother" retained Respondent to seek release of "Son" from an involuntary mental health commitment. In early September, Son was transferred from one mental health facility to another but remained under involuntary commitment.

Effective October 20, 2014, and continuing through May 27, 2015, Respondent was suspended from the practice of law in Indiana due to his failure to pay costs in a prior disciplinary matter.

In January 2015, Mother contacted Respondent about securing Son's release, and at Respondent's request Mother paid Respondent $1,000 for "legal fees." Respondent did not tell Mother he was under a suspension from the practice of law. Respondent rendered legal analysis and advice to Mother but took no court action toward securing Son's release. Mother soon confronted Respondent after discovering he was suspended. Respondent responded by falsely implying that he was able to practice law because his suspension was administrative rather than disciplinary in nature. Respondent also repeatedly responded to Mother's inquiries about the status of the case by telling her that the mental health facilities were being unreasonably nonresponsive to his record requests and that dealing with Son's situation would take some time.

In late March or early April 2015, Respondent solicited an additional $1,000 from Mother to continue the representation. Respondent did not tell Mother that he could not request a hearing date from the court due to his suspension. In May, Mother again confronted Respondent after having been informed by staff at Richmond State Hospital that they had not been allowing Respondent to review Son's medical records due to Respondent's suspension. Respondent again tried to alleviate Mother's concerns by emphasizing his suspension was administrative and not disciplinary.

After Respondent paid his costs and was reinstated to practice in May 2015, he filed an appearance on Son's behalf. Shortly thereafter though, Mother terminated the representation, demanded an explanation from Respondent about his inability to advance Son's case due to his suspension, and also demanded a refund. Respondent replied by email,

I am curious what were my other alternatives? Unfortunately my magic wand is broken. I operate within the system.
If you don't have the patience for it, that is not my fault. I am sure your son will appreciate you giving up.

(Comm'n Ex. 30). Respondent did not refund any fees to Mother.

Discussion and Discipline

We concur in the hearing officer's findings of fact and conclude that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

5.5(a): Engaging in the unauthorized practice of law.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Even standing alone, Respondent's misconduct in this case is extremely troubling. Respondent flagrantly defied our order suspending him from practice and engaged in a months-long pattern of deception toward Mother designed to mislead her into believing that Respondent could, and would, provide the contemplated legal services. Respondent extracted $2,000 in legal fees from Mother under these false pretenses despite knowing that his suspension precluded his ability to fulfill the objectives of the representation. Meanwhile, Son remained under involuntary commitment, with his opportunity to be heard in court needlessly delayed for months by Respondent's misconduct.

But Respondent's misconduct in this case does not stand alone. In addition to four prior administrative suspensions and three show cause proceedings initiated as a result of Respondent's noncooperation with various disciplinary investigations, Respondent also has prior discipline for similar misconduct. Matter of Krasnoff , 78 N.E.3d 657 (Ind. 2017) (imposing a 180-day suspension without automatic reinstatement, effective September 1, 2017). That case, which involved among other things Respondent's unauthorized practice of law with respect to another client while under an earlier administrative suspension, was pending at the time Respondent committed his misconduct in this case. Under these circumstances, Respondent's prior discipline is a significant aggravating factor. See Matter of Wray , 91 N.E.3d 578, 585 (Ind. 2018).

With the above considerations in mind, the Court concludes that a suspension of at least two years without automatic reinstatement is appropriate discipline for Respondent's misconduct in this case. See Matter of James , 78 N.E.3d 1086 (Ind. 2016) ; see also Matter of Halcarz , 800 N.E.2d 570 (Ind. 2003). Further, in order to become eligible for reinstatement, Respondent must demonstrate that he has made restitution to Mother in the amount of $2,000. See Matter of Kern , 56 N.E.3d 623 (Ind. 2016).

Conclusion

Respondent already is under an order of suspension imposed for prior misconduct. For Respondent's professional misconduct in this case, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, effective from the date of this opinion. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18). Further, any such petition for reinstatement shall be accompanied by proof that full restitution has been paid to Mother and shall be subject to summary dismissal if such proof is lacking.

The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

David, J., dissents regarding the sanction, believing that more severe discipline is warranted.

      "Administrative" suspensions include suspensions for costs or dues nonpayment, noncompliance with continuing legal education requirements, or failure to make the IOLTA certification required by Indiana Admission and Discipline Rule 2(f). Although the requirements for reinstatement from an administrative suspension are ministerial in nature, this distinction does not alter in any way the prohibition against practicing law while suspended. An attorney's lack of authority to practice law while suspended is the same regardless of the reason for the suspension.


author: David, Justice.

text:
    STATE of Indiana, Appellant (Plaintiff below), v. John B. LARKIN, Appellee (Defendant below).
    Supreme Court Case No. 46S04-1711-CR-701
    Supreme Court of Indiana.
    Argued: December 19, 2017 Decided: June 27, 2018
    ATTORNEYS FOR APPELLANT: Curtis T. Hill, Jr., Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE: Stacy R. Uliana, James E. Foster, Bargersville, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 46A04-1607-CR-1522
   David, Justice.

Following the death of his wife, John Larkin was charged with voluntary manslaughter. However, this charge was later dismissed because both of the lower courts found that: 1) the Criminal Rule 4(C) period within which to bring Larkin to trial had expired and the delays in bringing him to trial were not attributable to him; and 2) the prosecutorial misconduct in this case required dismissal. For reasons discussed herein, we disagree with the lower courts on both issues. Accordingly, we reverse and remand for the trial court to hold a hearing or proceed to trial pursuant to this Court's holding in State v. Taylor , 49 N.E.3d 1019 (Ind. 2016).

Facts and Procedural History

In December 2012, police were dispatched to the home of John and Stacey Larkin for a reported shooting. Stacey Larkin sustained two fatal gunshot wounds during a domestic dispute involving her husband, John Larkin. Police took Larkin into custody for questioning, and he invoked his right to counsel. The police interrogated him anyway. Larkin's statements to police during those sessions were later suppressed.

While the State's preliminary charge was murder, Larkin agreed to speak with police if the State would consider only charging him with manslaughter. The police so charged Larkin, and then conducted a recorded interview. During a break, police left Larkin alone with his attorney, but kept the video recording equipment running, capturing Larkin and his attorney's privileged communications. Larkin and his attorney discussed various aspects of the case including insurance, motivation and motive, possible charges, filing for divorce, the children, conditions of bond, the funeral, possible defenses, and the sequence of events on the evening of the shooting. Police and prosecutors viewed the video and, therefore, saw and heard Larkin's privileged discussion with counsel. A court reporter even transcribed the discussion and distributed it to the prosecutor's office. Nearly one year later (December 2013), the State disclosed to Larkin that it had eavesdropped on privileged communications between him and his attorney.

In March 2014, following several continuances, the parties stipulated that after November 5, 2014, the State would have 90 days to try Larkin pursuant to Indiana Criminal Rule 4(C). Thereafter, in July 2014, Larkin moved to dismiss the voluntary manslaughter charge, citing police and prosecutorial misconduct that deprived him of his Sixth Amendment right to effective counsel. He later moved to disqualify the LaPorte County Prosecutor's Office on the same grounds and requested a special prosecutor. He also filed another motion to dismiss in September 2014, alleging that the State's lead detective conspired to obstruct justice by having another officer change his statement regarding that officer's prior interaction with Stacey Larkin. In October 2014, the trial court denied Larkin's motions, but it suppressed: 1) statements Larkin made to police after he invoked the right to counsel but before counsel arrived; and 2) the recorded conversation between Larkin and counsel.

At Larkin's request, the trial court certified for interlocutory appeal the denial of Larkin's motion to disqualify the prosecutor's office, and stayed the proceedings pending resolution from the Court of Appeals.

In September 2015, the Court of Appeals dismissed Larkin's appeal as moot since LaPorte County elected a new prosecutor in November 2014. Larkin v. State , 43 N.E.3d 1281, 1286-87 (Ind. Ct. App. 2015). The court's opinion explained that it addressed only the LaPorte Prosecutor's Office as a whole and did not evaluate whether individual prosecutors should withdraw from the case. Id. at 1287. The court then opined, "if requested by Larkin, the trial court should consider whether disqualification of [two deputy prosecutors] would be appropriate in this situation." Id. The Court did not certify its decision until November 20, 2015.

In the six weeks between when the Court of Appeals issued and certified its opinion, the State moved to withdraw the two deputy prosecutors, Neary and Armstrong, named in the Court of Appeals opinion. The State also moved for the appointment of a special prosecutor. The trial court granted all motions. Also during this time (in October 2015), the trial court judge recused himself and the County Clerk appointed Judge Thomas Alevizos to preside over the case going forward.

Thereafter, in December 2015, Larkin moved to disqualify Judge Alevizos, alleging the judge had a conflict of interest. Following a hearing, Judge Alevizos found no conflict that jeopardized his impartiality, but nonetheless recused himself to save the matter from further delays. The Clerk sought replacements, but four other judges in the county either declined the appointment or recused themselves. On February 29, 2016, Pulaski County's Judge Patrick Blankenship accepted the appointment.

On March 28, 2016, citing Rule 4(C), Larkin moved for discharge. He orally renewed that motion in an April 7, 2016 hearing. During that same hearing, the court and parties discussed possible trial dates, should the court deny Larkin's 4(C) motion. The court and State proposed trial dates in early May 2016, but Larkin declined those dates. Larkin agreed to a June 20, 2016 trial date. The court clarified on the record that Larkin waived his 4(C) argument regarding the June trial date to the extent he already made a record that he believed the period had run.

In May 2016, Larkin filed another motion for discharge under Criminal Rule 4(C). He also again moved to dismiss the voluntary manslaughter charge, this time arguing the police and prosecutorial misconduct made a fair trial impossible. The court held a hearing on Larkin's motion to dismiss on June 9, 2016. Due to last-minute scheduling, the State appeared via telephone. The State argued against dismissal, citing the denial of Larkin's first motion to dismiss back in 2014. Alternatively, pursuant to this Court's opinion in State v. Taylor , 49 N.E.3d 1019 (Ind. 2016), the State requested another hearing to present evidence to prove Larkin did not suffer prejudice from the State's prior misconduct. The trial court denied that request and on the same day granted Larkin's motions, discharging him pursuant to 4(C) and dismissing the voluntary manslaughter charge.

The State appealed, raising two issues: 1) whether the trial court erred in granting Larkin's 4(C) discharge motion; and 2) whether the trial court erred in granting Larkin's motion to dismiss. In a split published opinion, the Court of Appeals affirmed on both issues. State v. Larkin , 77 N.E.3d 237 (Ind. Ct. App.), reh'g denied (Aug. 25, 2017)(" Larkin I "), transfer granted, opinion vacated , 94 N.E.3d 700 (Ind. 2017). Judge Barnes dissented; he would have reversed and remanded on both issues. The State sought transfer which we granted, thereby vacating the Court of Appeals' opinion. Indiana Appellate Rule 58(A). Additional facts are set forth below.

Standards of Review

When evaluating a Criminal Rule 4 motion for discharge, "in cases where the issue is a question of law applied to undisputed facts, the standard of review-like for all questions of law-is de novo." Austin v. State , 997 N.E.2d 1027, 1039 (Ind. 2013). However, in cases where a trial court makes a factual finding of congestion or emergency based on disputed facts, the standard of review for appellate courts is not abuse of discretion, but the clearly erroneous standard. Id. at 1040.

We review a trial court's ruling on a motion to dismiss a charging information for an abuse of discretion. State v. Thakar , 82 N.E.3d 257, 259 (Ind. 2017). A trial court abuses its discretion when it misinterprets the law. Id .

Discussion and Decision

I. Discharge pursuant to Criminal Rule 4(C)

The State bears the burden of bringing the defendant to trial within one year. Bowman v. State , 884 N.E.2d 917, 919 (Ind. Ct. App. 2008), trans. denied . Rule 4(C) provides a defendant may not be held to answer a criminal charge for greater than one year, unless the delay is caused by the defendant, emergency, or court congestion. Curtis v. State , 948 N.E.2d 1143, 1148-49 (Ind. 2011).

A defendant extends the one-year period by seeking or acquiescing in delay resulting in a later trial date. A defendant waives his right to be brought to trial within the period by failing to raise a timely objection if, during the period, the trial court schedules trial beyond the limit. However, a defendant has no duty to object to the setting of a belated trial date if the setting occurs after the year has expired.

Pelley v. State , 901 N.E.2d 494, 498-99 (Ind. 2009) (internal citations omitted).

In this case, the parties stipulated that the State would have 3 months from November 5, 2014 to try Larkin. Trial was ultimately set for June 20, 2016 after an interlocutory appeal and a motion for change of judge. At issue is whether the delay as a result of the interlocutory appeal and the motion for change of judge are attributable to Larkin or not.

A. Interlocutory Appeal

In Pelley , this Court said, "[w]hen trial court proceedings have been stayed pending resolution of the ... interlocutory appeal, the trial court loses jurisdiction to try the defendant and has no ability to speed the appellate process." 901 N.E.2d at 500. See also Wood v. State , 999 N.E.2d 1054, 1063 (Ind. Ct. App. 2013) (citing Pelley for the principle that "in the absence of jurisdiction in the trial court, the Criminal Rule 4(C)... was tolled").

As for when the trial court resumes jurisdiction, Indiana Appellate Rule 65(E), provides in relevant part: "[t]he trial court ... and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified." Case law clarifies that if a trial court acts before certification, the action is considered a nullity-as if the trial court lacked jurisdiction. Hancock v. State , 786 N.E.2d 1142, 1143 n.1 (Ind. Ct. App. 2003) (explaining that trial court's action pre-certification was "premature and should be considered as a nullity"); Jallali v. National Bd. of Osteopathic Medical Examiners, Inc ., 908 N.E.2d 1168, 1176 n.4 (Ind. Ct. App. 2009) (labeling a motion filed before certification "premature"); Montgomery v. Montgomery , 59 N.E.3d 343, 355 n.8 (Ind. Ct. App. 2016) ("We remind the parties and the trial court that no action should be taken in reliance on [the Court of Appeals] opinion until it is certified as final under Indiana Appellate Rule 65(E)").

Here, Larkin I was not certified until November 20, 2015, but prior to that, the State filed several motions including one for appointment of a special prosecutor. Pursuant to Pelley and App. R. 65, the trial court did not yet have jurisdiction. Nevertheless, the Court of Appeals majority found that the trial court reassumed jurisdiction and the State submitted itself to the trial court's jurisdiction due to a "constructive" lift of the stay when the State moved for appointment of a special prosecutor. It found that the purpose of App. R. 65 was satisfied by the trial court and the State's actions; that is, they were acting in accord with the decision being final. But as Judge Barnes noted in his dissent, there are three problems with this: 1) any action taken by the court prior to certification was potentially voidable; 2) the parties could have petitioned for transfer; and 3) the majority's outcome punishes the State for trying to move the case forward prior to the stay being lifted. The State further notes that any date prior to the date of certification is an inappropriate measure of when the clock restarts for 4(C) purposes, as it injects uncertainty and allows for potential game-playing by defendants.

We agree with the State and Judge Barnes that until the interlocutory appeal was certified, the trial court did not have jurisdiction. As such, the period of delay during the pendency of Larkin's interlocutory appeal through the time the Court of Appeals opinion was certified is chargeable to Larkin.

B. Motion for Change of Judge

On November 23, 2015, Larkin moved for a change of Judge. Judge Alevizos took the matter under advisement and later recused himself. Then, several special judges declined appointment until finally, on February 29, 2016, Judge Blankenship accepted appointment.

This Court has held that "a delay occasioned by a defendant's filing of a motion for change of judge is chargeable to him and that the time begins to run anew when the new judge qualifies and assumes jurisdiction." State ex rel. Brown v. Hancock County Superior Court , 267 Ind. 546, 372 N.E.2d 169, 170 (1978) ; See also , Wedmore v. State , 237 Ind. 212, 143 N.E.2d 649, 650 (1957) ; State v. Grow , 255 Ind. 183, 263 N.E.2d 277, 278 (1970). As Judge Barnes notes in his dissent, the delay between the filing of the motion and appointment of a qualified judge in Grow was six months and in Brown , sixteen months; both chargeable to the defendant. Thus, under this line of cases, Larkin should be charged with the delay from the filing of his motion until Judge Blankenship accepted appointment.

However, the Court of Appeals majority found Harrington v. State, 588 N.E.2d 509 (Ind. Ct. App. 1992), disapproved by Cook v. State, 810 N.E.2d 1064 (Ind. 2004) dispositive. In Harrington , the defendant moved for a special prosecutor because the current prosecutor had a conflict of interest (the prosecutor had previously represented the defendant). 588 N.E.2d at 510. A 317-day delay resulted from the defendant's motion. When the defendant moved for discharge under Criminal Rule 4(C), the State argued the delay should be charged to the defendant, since he made the special prosecutor motion. Id. at 510-11. Harrington countered that the delay should be charged to Rule 4(C) since the prosecutor knew of the conflict and it would be unfair to charge the delay to him. The Court of Appeals concluded the delay was attributable to the State because "a defendant should not be forced to choose between a speedy trial and a fair trial as a result of the prosecutor's failure to identify and cure his conflicts." Id. at 511.

In Cook , this Court disapproved Harrington . We held "delays caused by action taken by the defendant are chargeable to the defendant regardless of whether a trial date has been set." 810 N.E.2d at 1067. We also expressly disapproved a string of cases (including Harrington ) to the extent they were inconsistent with that holding. Id. The Court of Appeals majority here relied heavily on Harrington's language that a defendant should not be forced to choose between a fair and speedy trial. Admittedly, Harrington's language about choosing between a fair and speedy trial was not explicitly disapproved in Cook.

However, there are a few problems with applying Harrington in this case. First, adopting this approach would allow for a defendant to file for change of judge preventing the case from moving forward but allowing the 4(C) period to run. Just as interlocutory appeals toll the 4(C) period despite who filed because the case cannot practically move forward, the same is true when a motion for change of judge is filed.

Also, the Court of Appeals majority assumes that Judge Alevizos' conflict that caused his recusal was something he should have just known from the outset. It's not clear that this is the case. While he previously presided over a matter involving Larkin's sister and children and the outcome was less than desirable for Larkin's sister, we presume our trial judges are unbiased. Patterson v. State , 926 N.E.2d 90, 93 (Ind. Ct. App. 2010). Further, practically speaking, there are times when it will take time to find a suitable special judge depending on the circumstances, and it's not clear why this delay is not akin to court congestion. Accordingly, we apply Cook and find that the delay in finding a special judge is attributable to Larkin. Because the delays that occurred as a result of Larkin's interlocutory appeal and his motion for change of judge are attributable to him and he agreed to a June 2016 trial date in May, prior to expiration of the 4(C) period, he is not entitled to discharge pursuant to Criminal Rule 4(C).

II. Motion to dismiss due to inability to get a fair trial

A. The State committed misconduct.

In this case, there is no dispute that the State committed misconduct and on numerous occasions. First, police continued to question Larkin after he invoked his right to counsel. Then, Larkin's private conversation with his attorney was recorded and listened to by several individuals at the prosecutor's office. The situation was compounded when the conversation was transcribed and further distributed. Additionally, there is evidence in the record reflecting potential evidence tampering. That is, one officer instructed another to change his statement about his prior interaction with Larkin's wife. There is also evidence that a piece of physical evidence, the safe containing the gun used to shoot Stacey, was tampered with while in the State's custody and prior to allowing Larkin an opportunity to examine it.

It is especially troubling to this Court that one of the prosecuting attorneys involved in this matter was also involved in the misconduct in Taylor . However, the discipline of attorneys is a separate matter than the matter at hand. As we noted in Taylor : "what constitutes an effective remedy for [defendant] is not necessarily what would constitute a proportionate punishment for the State. Our concern is to ensure the State's egregious misconduct does not actually prejudice [defendant]...." Taylor at 1024. Accordingly, here we must decide whether the State's misconduct is so severe that Larkin's criminal charges should be dismissed over it. Balancing Larkin's rights with the public's interest in seeking justice for victims and applying our precedent, we find that outright dismissal is not the appropriate remedy in this case.

B. The appropriate remedy for the State's misconduct is suppression of the tainted evidence for which the State cannot rebut the presumption of prejudice pursuant to Taylor .

In Taylor , when considering a motion to suppress, this Court announced a rule that when the State eavesdrops on a defendant's privileged communications with counsel, there arises a rebuttable presumption of prejudice. This Court instructed the State may rebut that presumption only by proof beyond a reasonable doubt. 49 N.E.3d at 1019. We noted that it would be a windfall to Taylor if all statements were suppressed because this would be disproportionate to the prejudice Taylor actually suffered. Id. at 1029. We further noted that there may be other circumstances where the taint would be so pervasive and insidious that no remedy short of barring the tainted witnesses would suffice but we did not address "that larger question" at that time. Id. Taylor considered a motion to suppress only and not a motion to dismiss.

Larkin argues, and the Court of Appeals found that the prosecutorial misconduct in this case is more severe than in Taylor and thus, Taylor does not apply. That is, they argue that Taylor only involved eavesdropping whereas here, the misconduct did not end there. Judge Barnes disagreed with the majority, believing the facts in Taylor were not so much more egregious than the ones here as to require dismissal.

However, even acknowledging that the prosecutorial misconduct may be worse here, we find Taylor is applicable to this case, and as such, outright dismissal is not an appropriate remedy. Pursuant to Taylor , the State must be given a chance (even though it may not be possible) to demonstrate by proof beyond a reasonable doubt that some untainted and admissible evidence exists. Further, Taylor does not require that the State make an offer of proof in order to rebut the presumption of prejudice.

The trial court already suppressed statements made by Larkin after he invoked his right to counsel when the police continued to question him as well as his recorded conversation with his attorney. Testimony or portions of testimony from certain officers may also need to be suppressed and the safe may need to be excluded from evidence. However, the State cites other evidence which may not be tainted at all. For instance, Larkin's 911 call, a physical description of the shooting scene, pathologist testimony and Larkin's statement to police may be used to bring Larkin to trial. The trial court will need to look at each piece of evidence and testimony and determine first, whether it is tainted and next, if so, whether the State can rebut prejudice beyond a reasonable doubt.

Finally, we note again that Taylor involved blanket suppression and not a motion to dismiss. Dismissal is an extreme remedy. As the U.S. Supreme Court has held, for constitutional violations committed by the government, "the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence" gained from the violation. U.S. v. Morrison , 449 U.S. 361, 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). To the extent the prosecutorial misconduct in this case has caused prejudice which the State cannot rebut beyond a reasonable doubt, the appropriate remedy is suppression of the tainted evidence, not outright dismissal without taking into account other untainted evidence or giving the State an opportunity to rebut the presumption of prejudice. It may be that the State has no case without the suppressed evidence. Regardless, the trial court abused its discretion in not applying Taylor to this case.

Conclusion

We find that the delays associated with Larkin's interlocutory appeal and motion for change of judge are chargeable to Larkin. As such, the Criminal Rule 4(C) period had not expired before Larkin agreed to a June 2016 trial date. Thus, his motion for discharge should have been denied.

We further find that Taylor applies to this case and outright dismissal is not the appropriate remedy for the State's misconduct. Instead, the trial court is to assess each piece of evidence to determine whether it is tainted by the State's misconduct.

If it is, the State shall be afforded the opportunity to rebut the presumption of prejudice by proof beyond a reasonable doubt. Failing that, the testimony or evidence at issue will be suppressed.

Accordingly, we reverse the trial court on both issues and remand. The trial court, at its discretion, may either hold a hearing during which the State is given an opportunity to rebut the presumption of prejudice for any tainted evidence or proceed to trial at which the State may attempt to meet its burden through offers of proof outside the presence of the jury.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

      Taylor involved more than eavesdropping as well. After eavesdropping, police used information gained from what they overheard to go find the murder weapon. Further, police invoked their Fifth Amendment rights during their depositions when Taylor sought to learn the extent of the prejudice from the eavesdropping.


text:
    Termination: A.A., Appellant, v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee.
    Court of Appeals Case No. 18A-JT-527
    Court of Appeals of Indiana.
    FILED July 9, 2018
    Order
   [1] Appellant's Brief and Appendix were filed on May 4, 2018. On May 31, 2018, the Court ordered Appellee Indiana Department of Child Services ("DCS") to file its brief by June 18, 2018. Instead of filing a brief, DCS, by counsel, has filed a Verified Motion to Remand, or in the Alternative, a New Briefing Schedule. In the motion, DCS essentially concedes that Appellant was not provided with adequate notice of the termination of parental rights hearing and that the trial court violated Appellant's due process rights when it defaulted her while she was present in the court's waiting room but excluded from the actual courtroom. DCS asks that the case be dismissed without prejudice and remanded to the trial court for further proceedings consistent with due process. DCS alleges that Appellant does not object to remand.

[2] Over the past six (6) months, DCS has filed eight (8) motions to remand that are substantively similar to the motion at issue here. See Termination: S.T. v. Indiana Dep't of Child Services , No. 48A02-1709-JT-2094; Termination: T.Z. v. Indiana Dep't of Child Services , No. 79A02-1710-JT-2406; Termination: K.P. v. Indiana Dep't of Child Services , No. 53A05-1712-JT-2830; Termination: N.L. v. Indiana Dep't of Child Services , No. 18A-JT-94; Termination: A.B. v. Indiana Dep't of Child Services , No. 18A-JT-170; Termination: C.S., et al. v. Indiana Dep't of Child Services , No. 18A-JT-280; Termination: J.F., et al. v. Indiana Dep't of Child Services , No. 18A-JT-341; Termination: L.R. v. Indiana Dep't of Child Services , No. 18A-JT-529. This is the ninth such motion filed by DCS, and the Court is aware of a tenth motion that has been filed in Cause Number 18A-JT-530. The motions are always filed after Appellant has filed their brief. In these motions, DCS essentially concedes that Appellant has either not been provided with adequate notice or that their due process rights have been violated. DCS then, as in this case, requests that the matter be remanded to the trial court for further proceedings consistent with due process.

[3] It is not clear why DCS has suddenly chosen to file motions to remand in these cases rather than file a brief. The result of this, though, is that the Court has primarily dealt with these issues through its orders and not in a formal opinion. While the orders of this Court carry weight, they do not carry the weight or the effect that an opinion from this Court does. By filing a motion to remand, DCS has successfully avoided defending repeated, significant violations of due process in termination of parental rights cases.

[4] The increasing frequency of these motions suggest that there are repeated, significant violations of due process occurring in termination of parental rights cases throughout this state. This is a disturbing trend given the fundamental rights at issue in these types of cases. See In re Adoption of O.R. , 16 N.E.3d 965, 972 (Ind. 2014) (noting that the Fourteenth Amendment to the United States Constitution protects the rights of parents to establish a home and raise their children, that parents have a fundamental liberty interest in the care, custody, and control of their children, and that the parent-child relationship is one of the most valued relationships in our culture).

[5] While the Court commends DCS for essentially conceding error in these cases, the Court is obligated to formally admonish DCS for its failure to afford litigants throughout this state the due process rights they are owed. Furthermore, the Court also reminds the trial courts throughout this state of their duty to ensure that litigants' due process rights are not violated. Given the fundamental due process rights at issue in termination of parental rights cases, affording litigants these fundamental due process rights is essential, including not only the litigants but also their children.

[6] Having reviewed the matter, the Court finds and orders as follows:

1. Pursuant to Appellate Rule 37, Appellee's Verified Motion to Remand is granted. This appeal is dismissed without prejudice and remanded to the trial court for further proceedings consistent with due process.
2. Appellant may, after filing a new notice of appeal, raise the issues Appellant would have raised in this appeal along with any new issues created by the trial court's ruling(s) on remand.
3. The Court directs that this order should be published. The Clerk of this Court is directed to send copies of this order to West/Thomson Reuters, LexisNexis, and all other sources to which decisions/opinions of this Court are normally sent.
4. The Clerk of this Court is directed to send a copy of this order to the parties, Judge Brent J. Niemeier of the Vanderburgh Superior Court, Magistrate Renee A. Ferguson of the Vanderburgh Superior Court, the Vanderburgh Circuit and Superior Courts Clerk, Indiana Attorney General Curtis Hill, and Terry J. Stigdon, Director of the Indiana Department of Child Services.
5. The Vanderburgh Circuit and Superior Courts Clerk is directed to file a copy of this order under Cause Numbers 82D04-1711-JT-2195, 82D04-1711-JT-2196, 82D04-1711-JT-2197, and 82D04-1711-JT-2198, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders.

Mathias, J., Darden, Friedlander, Sr.JJ., concur.