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Owens v. State

Court of Appeals of Indiana

January 31, 2017

Devonte Owens, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Marion Superior Court The Honorable Clayton A. Graham, Judge Trial Court Cause No. 49G07-1508-CM-28999

          Attorney for Appellant Suzy St. John Marion County Public Defender

          Attorneys for Appellee Curtis T. Hill, Jr., Katherine Modesitt Cooper Deputy Attorney

          Baker, Judge.

         [¶1] Devonte Owens appeals his sentence for Carrying a Handgun Without a License, [1] a Class A Misdemeanor, arguing that he was denied due process at his sentencing hearing. Finding that Owens did not receive due process, we reverse and remand for a new sentencing hearing.[2]

         Facts

          [¶2] On August 15, 2015, Officer Brett Bousema of the Indianapolis Metropolitan Police Department made a traffic stop after observing a car make several traffic violations. Officer Bousema asked the driver, Quina Simon, and the two occupants in the car for identification. One passenger identified himself as Owens, and the other identified himself as a juvenile. Officer Bousema asked whether there were any weapons in the car, and each of the occupants said there were not. After finding that Simon's driver's license was suspended but that Owens had a valid driver's license, Officer Bousema asked Simon and Owens whether they could switch seats. When Officer Bousema opened the door to the vehicle, he observed a handgun between the passenger seat and the car door.

         [¶3] The State charged Owens with carrying a handgun without a license, a Class A misdemeanor. After an April 25, 2016, bench trial, the trial court found Owens guilty as charged. The trial court remanded Owens to the custody of the Marion County Sheriff, at which time the following exchange occurred:

Defense Counsel: Judge, Mr. Owens is working, he's a college student, he will lose the job that he just received. We would ask that we either proceed to sentencing today, or that he be allowed to self-report. He's not missed work.
The Court: Who says he's going to be going to Community Corrections?
Defense Counsel: No, self-report for sentencing. He's not missed court. He does not have a significant criminal history.
The Court: Well, when you go to trial, you expect to go to jail today. Why are we-self-report for what?
Defense Counsel: If we're not proceeding to sentencing today, that he could report to sentencing.
The Court: All right. Right. Well, we will-he has two days credit, 365 days Marion County Jail-he has two actual days credit, so that would be four, so it will be 271 suspended. He'll be placed on probation for 275 days and that will be reporting probation. He'll be assessed a statutory Safe School fee of $200, fine in the amount of $100 and court costs in the amount of $183. Public defender recoupment fee-did he pay his public defender recoupment ...

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