Fry v. State

Indiana Court of Appeals

Fry v. State

330 N.E.2d 367, 165 Ind. App. 1, 1975 Ind. App. LEXIS 1208

CourtIndiana Court of Appeals

DecidedJuly 9, 1975

DocketNo. 2-1174A269

StatusPublished

Cited by4 cases

This text of 330 N.E.2d 367 (Fry v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fry v. State, 330 N.E.2d 367, 165 Ind. App. 1, 1975 Ind. App. LEXIS 1208 (Ind. Ct. App. 1975).

Pincite

Opinion

Hoffman, J.

Following a jury trial, defendant-appellant Paulette Fry was found guilty of the offense of uttering a forged instrument as defined in IC 1971, 35-1-124-1, Ind.Ann. Stat. § 10-2102 (Burns 1956). The trial court then ordered that appellant be committed to the custody of the Superintendent of the Indiana Women’s Prison for a period of not less than two nor more than fourteen years; that she be [3]*3fined in the sum of $10; and that she satisfy costs. Appellant timely filed her motion to correct errors which was overruled, and the present appeal was perfected.

The first issue to be considered is whether the trial court erred in refusing to grant appellant’s oral motion for a continuance made on the day upon which the trial was to commence.

An examination of the record discloses that on January 25, 1974, the trial court, having determined that appellant was “financially unable to employ counsel of her own choosing”, appointed Stephen J. Cuthbert, Public Defender of Tippecanoe County, to represent her. Trial was subsequently set to commence on April 16, 1974, at 9:30 A.M. At such time, appellant made an oral motion for continuance, out of the presence of the jury and before the State presented its case-in-chief; and stated as grounds therefor that on the previous day she had personally contacted and retained counsel at her own expense; that her retained counsel was unable to attend due to prior commitments; and that he would require at least a week in order to prepare for trial. After questioning appellant concerning her financial ability to retain counsel, the trial court overruled appellant’s motion.

Where, as in the case at bar, the motion for continuance is not based upon statutory grounds, the ruling on such motion is within the sound discretion of the trial court. King v. State (1973), 260 Ind. 422, 296 N.E.2d 113, 115; Johnson v. State (1970), 254 Ind. 465, 467, 260 N.E.2d 782; Carlin v. State (1970), 254 Ind. 332, 335, 259 N.E.2d 870; Reed v. State (1973), 157 Ind. App. 334, 300 N.E.2d 108 (transfer denied) ; Trinkle v. State (1972), 153 Ind. App. 524, 288 N.E.2d 165 (transfer denied).

Such ruling must be upheld in the absence of a demonstration of a clear abuse of discretion. Generally, requests for continuance are not favored and will only be granted in furtherance of justice upon a showing of good cause. Johnson v. State, supra; Stock v. State [4]*4(1974), 162 Ind. App. 461, 319 N.E.2d 871, 873; Dockery v. State (1974), 161 Ind. App. 681, 317 N.E.2d 453, 458; Hopper v. State (1974), 161 Ind. App. 29, 314 N.E.2d 98, 103.

Account must be taken not only of the request of a defendant in a criminal case but also of the public interest in the prompt disposition of the matter. See: ABA Standards, Speedy Trial, § 1.3, at 5 [Approved Draft, 1968].

Appellant contends that the trial court’s refusal to grant her request for continuance compelled her to submit to representation by appointed counsel when she professed to have the ability to employ counsel at her own expense.

We must, however, conclude that upon the facts presented the refusal of a continuance and concomitant rejection of a request for substitution of counsel was within the sound discretion of the trial court and did not amount to an abuse thereof. In United States v. Cozzi (7 Cir., 1965), 354 F.2d 637, at 639, the court stated that,

“An accused’s Sixth Amendment right to select his own counsel does not permit of arbitrary action which obstructs orderly procedure in the courts. United States v. Bentvena, 2 Cir., 319 F.2d 916, 936. It is a right to be exercised at an appropriate stage within the procedural framework of the system of criminal jurisprudence of which it is a part. Absent justifiable basis therefor there is no constitutional right to make a new choice of counsel, with attendant necessity for a continuance because thereof, at the time the trial is scheduled to commence. * *

It should be noted that appellant, in making her request for continuance, did not express dissatisfaction with her court-appointed counsel who had represented her for almost three months prior to trial; nor did she offer any reason for desiring a change in counsel other than the fact that she had been recently employed and was of the opinion that she could accumulate the necessary funds. This, it appears, was a good deal less than a certainty, particularly in view Of the short [5]*5period during which she had been employed and the imminent possibility of conviction of an offense for which she might be confined for a substantial length of time. Counsel purportedly retained by appellant had entered no appearance in the cause and there was no indication that the trial court was otherwise contacted by him. Furthermore, an examination of the entire record discloses that appellant was ably represented by her court-appointed counsel during trial. Under these circumstances, we are of the opinion that the expeditious administration of justice outweighed appellant’s desire for the last minute substitution of a different attorney. See: United States v. Hampton (7 Cir., 1972), 457 F.2d 299; State v. Irvin; Mogle; McAllister (1978), 259 Ind. 610, 291 N.E.2d 70.

The next issue to be considered is whether the trial court erred in permitting the introduction of evidence tending to establish the commission by appellant of an offense other than the crime charged.

In this regard, appellant first contends that the trial court erred in admitting over objection State’s Exhibit No. 6, a Master Charge cash advance memorandum, for the reason that it constituted evidence of a separate offense unrelated to the offense charged.

The information by which appellant was charged, omitting caption and formal parts, reads as follows:

“That on or about the 21st day of November, 1973, at the County of Tippecanoe in the State of Indiana, one PAULETTE FRY did then and there unlawfully, feloniously, falsely, fraudulently, and knowingly make, forge, and counterfeit a certain check, and did then and there unlawfully, feloniously, falsely, and fraudulently utter, publish, pass, endorse, and deliver to Ann Irwin, who was then and there acting as the agent and employee of Lafayette National Bank, as true and genuine said false, forged, and counterfeit check which was of the following tenor, to wit:

[6]

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