David, J.
. . . [T]he trial court set the matter for a November 7 trial date and told Hawkins that if he did not appear in person he would be tried in absentia.
On October 10, Hawkins’s public defender filed a motion to withdraw, citing a lack of cooperation from her client. The trial court notified Hawkins of the motion, telling him that a hearing on the motion would be held on October 19 and stating that “[f]ailure to appear will result in a warrant for the Defendant’s arrest and withdrawal of Public Defender.” Hawkins appeared at the October 19 hearing by telephone.
At some point during the proceeding, however, Hawkins started having trouble hearing what was being said by the judge and attorneys, leading the court to reschedule the matter for October 26. The trial judge reiterated the new hearing date several times, along with a requirement that Hawkins appear in person. The court did not tell Hawkins that the motion to withdraw would be granted if Hawkins failed to appear at the second hearing. Hawkins then failed to appear for the October 26 hearing, and in his absence the trial judge granted the motion to withdraw but kept the original November 7 trial date.
Hawkins’s trial was set to convene at 8:30 a.m. on November 7, but that time came and went without him present. Hawkins did not communicate any reason for his absence to the court or request a continuance. The deputy prosecutor, however, received word from one of Hawkins’s relatives that Hawkins was on a bus from North Carolina and anticipated arriving at 1:30 p.m. The deputy prosecutor reported this to the court, but the court proceeded with voir dire and the trial after waiting until 9:00 a.m., having never received any direct communications from Hawkins himself. Hawkins was tried in absentia and the jury found him guilty on both counts. He arrived at the courthouse that afternoon and was immediately taken into custody.
On November 28, the trial court received a letter from Hawkins—still in jail awaiting sentencing—explaining that he had been unable to afford transportation for the October 26 hearing and his original transportation plan on November 7 fell through, requiring him to take the bus from North Carolina to Indiana. Nevertheless, on December 5 the trial court sentenced Hawkins to eight years in community corrections and a fine, all to be suspended provided Hawkins paid child support. Hawkins appeared at his sentencing hearing via video from jail.
. . . .
In Jackson, we pointed out that “a defendant’s absence from trial does not constitute a waiver of the right to counsel in every case.” Jackson, 868 N.E.2d at 499. Nevertheless, we found waiver because the defendant’s absence was “intentional and inexecusable.” Id. at 496. . . . .
. . . .
Here, Hawkins appeared at every scheduled event until the October 26 pretrial conference and his subsequent trial. And while those were significant absences, they occurred over a relatively short period: a three-week span following his last appearance (by telephone) at the hearing on his public defender’s motion to withdrawal. And during that period, he was never actually notified that the court had granted his public defender’s motion, and thus would be left to assume—at best—that he was now without counsel.
Certainly Hawkins could have contacted the court to find whether he still had a lawyer, and we emphasize again that we are not attempting to paint Hawkins’s conduct as that of the ideal criminal defendant. But his conduct is far better, we think, than Jackson. . . . .
Here, at least Hawkins contacted the court by letter after the trial (albeit several weeks after the trial) to explain that he could not afford to travel back and forth from North Carolina to Indiana twice in such a short span of time—a claim bolstered by his indigent status—and that he had instead prioritized the trip for the day of trial. While this may be a post-hoc attempt by Hawkins to justify his misbehavior, it is more reasonable to assume its veracity than assume it shows a willful and deliberate refusal to attend to his own criminal proceedings and waive his right to counsel. This is particularly true when, as we have discussed, Hawkins may not have realized that his public defender was no longer involved. At the very least, it cuts against the idea that Hawkins was manipulating the system for his own personal gain.
Finally, we note that here the trial court did not make this decision in a vacuum. The deputy prosecutor made the court aware that Hawkins was apparently trying to get to the courthouse, but would not arrive until early that afternoon. Nevertheless, the trial court decided to proceed, trying Hawkins in absentia after waiting only thirty minutes—and without attempting to confirm or deny the validity of the deputy prosecutor’s report—because Hawkins had not directly communicated to the court a reason for his absence or a request for a continuance.
This again is a far cry from Jackson. While we have stated the importance of parties respecting the trial court’s schedule, and the impact on others when that schedule is changed without warning, at the same time we emphasize that a trial court is the protector of more than just its own calendar. In criminal cases it must also vigorously protect the rights of those who are called before it as defendants, as well as the interests of the State and the victims. We still “cannot [and do not] expect a trial court to hunt down a defendant,” Jackson, 868 N.E.2d at 501, and certainly it would have been a burden to hold the jurors until Hawkins arrived later that day, and the delay probably would have impacted other matters scheduled for that day or the next. But in light of the particular facts here, we cannot say that those potential disruptions carry enough weight to say that Hawkins’s conduct amounted to an intentional and inexcusable absence such that he waived his fundamental right to counsel.
Accordingly, based on the facts and circumstances of this particular case, we find that Hawkins’s failure to appear at trial was not a waiver of his right to counsel and it was inappropriate to try him in absentia without representation. We therefore vacate his convictions and sentence and remand for a new trial.
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. . . Indiana Code § 35-38-1-4(a) provides that a criminal defendant “must be personally present at the time sentence is pronounced.” Indiana Administrative Rule 14(A)(2)(c) further provides that a trial court “may use audio visual telecommunication to conduct . . . [s]entencing hearings pursuant to IC 35-38-1-2 when the defendant has given a written waiver of his or her right to be present in person and the prosecution has consented.” Hawkins argues that nothing in the record reflects a waiver of his right to be present in person, and therefore it was improper for the trial court to sentence him via video conference. (Appellant’s Br. at 20–21.)
The State contends that “personally present,” as used in subsection 4(a) means only that a defendant may not simply be represented by counsel; the defendant himself must appear in person. (Appellee’s Br. at 15.) But that appearance in person, the State says, can be accomplished by video just as well as a physical presence—and the defendant would still gain the benefits inherent to physical appearance, such as being directly informed of the verdict, testifying on his own behalf or making unsworn statements, and observing the demeanor of witnesses presented against him. (Appellee’s Br. at 15–16.) . . . .
We think the State’s proposed interpretation of “personally present” would effectively render Rule 14(A)(2)(c) meaningless. If a defendant could be “personally present” at sentencing via video conference and satisfy § 35-38-1-4(a), there would be no reason for the Administrative Rules to explicitly require the defendant to give “a written waiver of his or her right to be present in person” before that video conference could be held.
A better interpretation—and one that gives force to both provisions—is that “personally present” and “present in person,” as used in Indiana Code § 35-38-1-4(a) and Indiana Administrative Rule 14(A)(2)(c), respectively, refer to the defendant’s actual physical presence. Thus, a trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution. [Footnote omitted.]
Dickson, C.J., and Rucker, Massa, and Rush, JJ., concur.