ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL E. CAUDILL KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
HOWARD GARRETT, )
) Supreme Court Cause Number
v. ) 49S00-9912-CR-694
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 20
The Honorable Michael Jensen, Magistrate
Cause No. 49G20-9812-CF-189275
ON DIRECT APPEAL
November 2, 2000
A jury convicted Howard Garrett of possession of cocaine and dealing in cocaine
and also adjudged him a habitual offender. The trial court sentenced Garrett
to fifty years for dealing in cocaine enhanced by thirty years for being
a habitual offender. The court did not sentence Garrett for possession of
cocaine. In this direct appeal, Garrett raises two issues for our review
which we rephrase as follows: (1) was Garrett tried before an impartial
judge; and (2) did defense counsels stipulation to the dates of Garretts prior
convictions constitute a guilty plea to the habitual offender charge? We affirm.
The record reveals that on December 2, 1998, Garrett sold .09 grams of
cocaine to a confidential informant working for the Indianapolis Police Department. The
informant wore a wire transmitter, and the transaction was recorded on audiotape.
The State charged Garrett with possession of cocaine, dealing in cocaine, and being
a habitual offender. The State offered Garrett a plea agreement that allowed
him to plead guilty to a lesser dealing charge and receive a ten-year
sentence enhanced by an additional ten years for the habitual offender count.
Before trial the court discussed the offer with Garrett, but Garrett declined and
proceeded to trial. A jury convicted Garrett as charged, and the trial
court imposed a total sentence of eighty years. This appeal followed.
Additional facts are set forth below where relevant.
Garrett contends that he was denied a fair trial under the state and
federal constitutions because the trial judge failed to remain impartial. His argument
focuses on the trial courts pre-trial statements in discussing the States plea offer.
The record shows that on the morning of Garretts scheduled trial, the
trial judge asked the State if it had made a plea offer to
Garrett. The State responded that it had offered Garrett a guilty plea
to a lesser dealing offense, as a Class B felony, with a ten-year
sentence enhanced by an additional ten years for the habitual offender charge.
Garrett told the court that he had rejected the offer. The court
then questioned Garrett extensively about whether he understood the nature of the offer
and the sentence he could receive if he was convicted as charged.
After the court explained that Garrett would likely get the maximum eighty-year sentence,
Garrett initially indicated that he would accept the plea. However, after reviewing
a written draft of the States offer, he declined, and the case proceeded
Garrett contends that the trial court displayed its bias when, during the pre-trial
discussion, the judge threatened to impose the maximum sentence if Garrett proceeded to
trial and was convicted. A threat Garrett maintains the court carried out
when it ordered him to serve the maximum sentence following his conviction.
Garrett complains also that the courts conduct undermined the fundamental fairness of the
proceedings by ridiculing the defense, by intimidating Mr. Garrett and pressuring him to
accept the plea offer . . . . Brief of Appellant at
11. Thus, Garrett essentially argues that the judge punished him for exercising
his right to trial.
See Hill v. State, 499 N.E.2d 1103, 1107
(Ind. 1986) (It is well settled that to punish a person for exercising
a constitutional right is a due process violation of the most basic sort.
. . . Moreover, it is constitutionally impermissible for a trial court
to impose a more severe sentence because the defendant has chosen to stand
trial rather than plead guilty.) (quoting Walker v. State, 454 N.E.2d 425, 429
(Ind. Ct. App. 1983)).
We do not condone the trial judges inquiry and comments regarding Garretts defense
or the depth of the courts inquiry regarding Garretts decision to go to
See footnote Declaring to Garrett Im telling you, if its me and you
get found guilty with this record youll get the [maximum] eighty years was
clearly inappropriate. There was at least the possibility that hearing this statement
from the judge would carry more weight with Garrett than the same message
when undoubtedly delivered by Garretts counsel. Garrett resisted this additional improper pressure,
but others may not. It may seem somewhat artificial to prevent a
trial judge from making such direct predictions concerning a sentence that will be
imposed, as opposed to outlining the parameters of permissible sentences. Nonetheless such
conduct is not defensible in the name of candor.
Having said that, however, we must conclude that Garrett still cannot prevail.
Where a defendant fails to object or otherwise challenge a trial judges remarks,
any alleged error is waived on appeal.
Cornett v. State, 450 N.E.2d
498, 505 (Ind. 1983) (holding that a defendant who failed to object to
trial judges comments and move for a mistrial waived review of claim that
the judge failed to maintain impartiality); see also Smith v. State, 558 N.E.2d
841, 843 (Ind. Ct. App. 1990) (finding that defendant waived review of his
claim that he was entitled to a change of judge where he failed
to argue the merits of his claim during a hearing before the trial
court). Here, our examination of the record shows that Garrett did not
object to the trial courts pre-trial comments nor did Garrett seek a change
of judge following the discussion regarding the plea offer. This issue is
thus waived for review. We also note that the record supports
Garretts eighty-year sentence. Garrett offered no mitigating evidence, and before pronouncing sentence,
the trial court reviewed the pre-sentence investigation report and cited in detail Garretts
lengthy criminal history. Relying on Garretts criminal history and the lack of
mitigating evidence, the trial court enhanced Garretts sentence. The courts findings regarding
aggravating and mitigating circumstances are supported by the record and in turn support
Garrett next contends that his adjudication as a habitual offender was improper.
During the habitual offender phase of the trial, Garretts counsel stipulated to the
existence of the prior offenses charged by the State. Garrett argues that
the stipulation was tantamount to a guilty plea, and the trial courts acceptance
of the stipulation without advising him on various rights which would be waived
by pleading guilty was erroneous. See generally Boykin v. Alabama, 395 U.S.
238 (1969); Ind. Code § 35-35-1-2(a).
Garrett cites no authority to support his claim that a factual stipulation
can amount to a guilty plea. As we observed in Whatley v.
State, 685 N.E.2d 48 (Ind. 1997) a plea of guilty is a discrete
judicial event that not only admits factual matters but also embodies significant procedural
consequences. Id. at 49. A stipulation that seeks to establish
certain facts does not constitute a guilty plea. Id. (finding that a
stipulation as to the existence of a defendants prior conviction used to enhance
a handgun offense did not amount to a guilty plea). Such is
the case here. The stipulation at issue only acknowledged that Garrett had
been convicted of the prior offenses and sentenced on certain dates. Thus,
it established only the fact that the prior offenses existed and did not
amount to a guilty plea.
Our court of appeals has reached the same conclusion in a nearly identical
case. In Gann v. State, 570 N.E.2d 976 (Ind. Ct. App. 1991),
the parties stipulated during the habitual offender phase that the State had true
and accurate copies of the prior judgments of conviction, that these convictions were
felonies, that the sentences imposed were reflected by the documents, and that the
fingerprints provided were in fact Ganns fingerprints. Id. at 978. As
Garrett argues here, the defendant in Gann contended that the stipulation amounted to
a guilty plea that required the trial court to question him regarding his
rights and consent to the stipulation. Id. at 979.
In rejecting the defendants claim, the court of appeals stated:
In this case, trial counsel did not stipulate that Gann was a habitual
offender or that the evidence stipulated was sufficient to determine Gann was an
habitual offender, but rather stipulated as to the evidence underlying the status.
The State had witnesses in court, and was prepared to introduce the exhibits.
Trial counsel presented a closing argument, and the evidence was
submitted to the jury for its consideration. The jury deliberated for an
hour to an hour and a half before reaching its decision. The
stipulation in this case was not the equivalent of a guilty plea .
. . .
Id. We agree with the court of appeals analysis in Gann and
believe it applies in this case. Contrary to Garretts claim, his counsel
did not stipulate that Garrett was a habitual offender, only to some of
the facts underlying the status. As the State points out, the stipulation
did not assent to all of the elements of the habitual offender charge.
The State still had the burden at trial of proving that the
offenses were unrelated. See Ind. Code § 35-50-2-8(d) (A person is a
habitual offender if the jury (if the hearing is by jury) or the
court (if the hearing is to the court alone) finds that the state
has proved beyond a reasonable doubt that the person had accumulated two (2)
prior unrelated felony convictions.). Moreover, both the State and Garretts counsel presented
opening and closing argument during the habitual offender phase, and the case was
submitted to the jury for its consideration. The stipulation was not the
equivalent of a guilty plea and did not require the trial court to
advise Garrett on various rights which would be waived by pleading guilty.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
The pre-trial discussion that took place was as follows:
THE COURT: Has the State made an offer to Mr. Garrett?
PROSECUTOR: Yes, we have, Judge. The final offer we made was
to the lesser included B felony of dealing. Ten years on that
and ten years on the habitual offender count.
THE COURT: So a total of twenty years?
PROSECUTOR: Yes, and we dismissed the possession.
THE COURT: You understand the offer Mr. Garrett?
GARRETT: Yes, I do.
THE COURT: You know what youre looking at if you get convicted
THE COURT: Whats that?
GARRETT: I think eighty.
THE COURT: Fifty to eighty years.
GARRETT: Fifty to eighty.
THE COURT: Its nonsuspendable. What do you want to do here?
GARRETT: I was gonna take the jury.
THE COURT: You understand that if you take the deal . .
. I understand that you have ten years on a parole violation too
GARRETT: Yes, sir.
THE COURT: So, if you get that, plus the twenty here, youll
get fifteen years. What, youre forty-one, youll be fifty-six when you got
out. If you get convicted, you get the ten years on that,
plus the eighty years on this. Thats ninety years, it will be
forty-five years youll have to serve if you behave yourself. Youll be
ninety-six, if youre still alive, when you get out. You understand that?
THE COURT: You sure about what you want to do here?
DEFENSE COUNSEL: You dont have to necessarily get the whole ten.
GARRETT: Thats the most I can get?
DEFENSE COUNSEL: Right.
THE COURT: Thats the most you can get on that. I
dont know what theyll do. I have no control over that, none
of us have any control over that. The worse case scenario if
you take the deal is an additional real fifteen years.
DEFENSE COUNSEL: Judge, one of the things that Mr. Garrett has mentioned
to me is, one of the reasons why he might want to take
this to jury as opposed to plea it is that he believes that
if he takes the jury that he wont be waiving his appeal rights.
And perhaps on appeal something could be done where he would get
less than twenty years. I have advised him that thats not likely,
THE COURT: Sir if you get convicted of the A felony, the
dealing . . . the A felony dealing, and the habitual, the minimum
possible sentence that any Judge can give you is fifty years. That
means I have to find mitigating circumstances to get down to there.
Mitigating circumstances would be lack of criminal history, good work experiences, good life
experiences. Looking at your criminal history, I havent counted up the numbers,
but it fills up three or four pages. It includes a death
case of voluntary manslaughter, plus other crimes of violence, handguns, robberies. I
dont know why you would think any judge is gonna find mitigating circumstances
when in your past youve robbed people and youve killed people. Those
are aggravating circumstances, which means your sentence goes up from the minimum fifty
years up to as much as eighty. Im telling you, if its
me and you get found guilty with this record youll get the eighty
years. Youll have to serve at least forty of that before you
get out, regardless of what happens on your parole violation. Which means
youd be at the least, youre what, forty-one?
GARRETT: Forty-one now.
THE COURT: Than means you would be eighty-one years old when you
got out if you get convicted. If you take the deal, you
could be out as little as ten and no more than fifteen.
GARRETT: I um . . . do they have that typed up?
DEFENSE COUNSEL: Hum?
GARRETT: Do they have that typed up?
DEFENSE COUNSEL: Do they have it typed up, he can write it
up right now.
GARRETT: Write it up and let me read it.
DEFENSE COUNSEL: Can you write it up and let him read it?
THE COURT: Let him have a chance to read it.
R. at 100-03. After a brief recess, the discussion continued:
THE COURT: Mr. Garrett?
GARRETT: Yes, sir.
THE COURT: What are we doing here?
GARRETT: Im going to accept the . . . Im gonna sign
THE COURT: Okay, go ahead and sign it there, well get copies
made and well go through it. Mr. Garrett what are we doing?
GARRETT: I didnt do all this.
THE COURT: You didnt do it?
GARRETT: By me signing this, Id be lying.
THE COURT: So, you want to go to trial today?
GARRETT: Yes, Im going to trial. Id be lying if I
signed this. I know Im between a rock and a hard place.
THE COURT: You understand what the States evidence is gonna be?
GARRETT: Excuse me sir?
THE COURT: You understand what the States evidence is gonna be?
THE COURT: Theres a confidential informant and a police officer whos gonna
say that you did this and also say that when they arrested you
you had the money in your shoe . . . your sock?
THE COURT: You dont have to answer this, but whats your defense
GARRETT: Excuse me?
THE COURT: You dont have to tell us, you dont have to
say a word, whats your defense gonna be? That the money magically
appeared in your sock?
GARRETT: Excuse me?
THE COURT: Whats your defense? Did the money just kind of
magically appear in your sock, and you dont know how it got there?
GARRETT: I put that money in my sock. Thats my money.
THE COURT: Theyre gonna have a photocopy of that money that they
had copied before and after your arrest.
DEFENSE COUNSEL: Actually Judge, the facts are that during the transaction, uh
. . . the person in the tape had to make change for
a twenty. It was actually marked beforehand, so its not the same
buy money. So, the money that was actually found in Mr. Garretts
sock is not marked. It is on tape however, that uh .
. . change was made, the transaction was fifteen dollars and that was
the amount of money that was found on Mr. Garrett. But, technically
the money is not marked.
THE COURT: Okay. All right, so you want to go to
THE COURT: Take him back and get him dressed.
R. at 103-05. Thereafter, the trial commenced.
In Stacks v. State, 175 Ind. App. 525, 372 N.E.2d 1201
(1978), our court of appeals observed that judicial participation in plea bargaining has
been heavily criticized by courts and commentators. Id. at 535, 372 N.E.2d
at 1208-09 (citing Note, Plea Bargaining and the Transformation of the Criminal Process,
90 Harv. L. Rev. 564, 583-585 (Jan. 1977); United States v. Werker, 535
F.2d 198 (2d Cir. 1976); Pennsylvania v. Evans, 252 A.2d 689 (Pa. 1969)).
Garrett also contends that the court enhanced his sentence based upon
a prior robbery conviction when in fact Garrett had not been convicted of
robbery. Garrett points to a pre-trial comment wherein the judge referred to
Garretts criminal history and mentioned a robbery conviction. Garrett was apparently charged
with robbery four times but never convicted. The record shows the trial
judges comment came during the pre-trial discussion when the judge had only cursorily
reviewed Garretts criminal history. The trial courts sentencing statement makes clear however
that the judge did not enhance Garretts sentence based upon a robbery conviction.