MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 19 2021, 8:46 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kurt A. Young Theodore E. Rokita Nashville, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth W. Guy, January 19, 2021 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2756 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Mary Wertz, Judge Appellee-Plaintiff. Trial Court Cause No. 07C01-1609-F3-384
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 1 of 18 Case Summary [1] Following two jury trials, Kenneth Guy appeals his convictions for Level 3
felony aggravated battery and Class A misdemeanor resisting law enforcement,
raising the following two restated issues:
I. Were Guy’s state constitutional double jeopardy rights violated when he was retried and convicted of aggravated battery because, in a prior trial, he had been acquitted of attempted murder that he claims was based on the same conduct as that supporting the aggravated battery conviction?
II. Did the trial court err when it denied Guy’s motion for discharge pursuant to Ind. Criminal Rule 4(B)?
[2] We affirm.
Facts and Procedural History [3] Guy and his younger brother, David, who was a drug addict, did not have a
good relationship. After their mother died, they lived in her residence in
Nashville, Indiana. However, at some point, David kicked Guy out of the
house. On September 6, 2016, Guy was back at the residence retrieving some
of his items. While David was eating dinner on the front porch steps, Guy
opened the door and shot at David with a rifle, injuring him, and thereafter
clubbed David in the head with an aluminum baseball bat. David fell to the
ground in the yard, and Guy left.
[4] Shortly thereafter, David’s friend, Randy Cole, who was walking away from
the residence, came to David’s aid. After trying unsuccessfully to call 911, Cole Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 2 of 18 drove a mile or less to his home, where his mother called 911. Police located
Guy, and he initially ran from police but was eventually apprehended. David
survived, suffering a bullet wound and lacerations to his head. Due to risks
associated with removing the bullet fragments, they were left in his head.
David continued to suffer blurred vision, headaches, and other problems after
the incident.
[5] On September 9, 2016, the State charged Guy with Level 3 felony aggravated
battery, Level 6 felony criminal recklessness, and Class A misdemeanor
resisting law enforcement. On September 12, the trial court held an initial
hearing at which a plea of not guilty was entered, and counsel was appointed to
represent him. On September 19, a public defender entered an appearance on
Guy’s behalf.
[6] On September 26, Guy filed a pro se letter with the court, requesting a new
public defender because of a claimed conflict of interest and asking for a “fast
and speedy” trial. Appellant’s Appendix Vol. 2 at 46. The CCS entry did not
mention Guy’s request for a speedy trial, indicating only that the
communication concerned counsel appointment. On October 13, the trial court
issued an order setting the correspondence for a hearing on October 31, and it
provided a copy of Guy’s letter to defense counsel. The State did not receive a
copy of Guy’s September 26 correspondence.
[7] At the October 31, 2016 hearing, the trial court addressed having received the
written communication from Guy that asserted a conflict with counsel and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 3 of 18 “also included a request for a speedy trial.” Supp. Tr. Vol. 2 at 4; Appellant’s
Appendix Vol. 2 at 81. The court indicated, “[A]t that point, we already had an
appearance in by [defense counsel], so any requests for a speedy trial needs to
come through counsel.” 1 Id. Guy’s counsel acknowledged that she was aware
of Guy’s desire for a speedy trial and stated that because the trial was already
set for November 30, 2016, which was within seventy days of his request, she
did not believe it was necessary for her to take further action. 2 Guy indicated
acceptance of his counsel at the hearing and withdrew his request for
replacement counsel.
[8] At the November 14 final pretrial conference, the State moved to continue the
trial because the prosecutor would be out of state and unable to try the case on
November 30, 2016, and Guy objected. The State’s plea offer to Guy was
addressed at the pretrial conference and included in the court’s pretrial order,
which showed that the offer was: Guy would plead open to aggravated battery
and the rest of the charges would be dropped, otherwise the State intended to
file an attempted murder count on November 18. The court took the State’s
motion to continue under advisement pending review of Guy’s speedy trial
1 Prior to the October 31 hearing, Guy again requested different counsel, as well as a different prosecutor and judge. Although repeatedly informed that he needed to speak through counsel so long as he was represented by counsel, Guy continued through the span of the case to contact the court directly on multiple occasions. 2 Seventy days from the September 26, 2016 request was December 5, 2016.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 4 of 18 request. On November 14, Guy again requested appointment of different
counsel.
[9] On November 17, the court denied the State’s motion to continue, finding that
the chief deputy prosecutor could try the case and noting that Guy had asserted
a request for a speedy trial. Regarding such request, the trial court specifically
found: (1) that it had informed Guy and defense counsel that his request for a
speedy trial needed to be made through his counsel, but that the State had not
filed a motion to strike the request, and (2) that Guy had repeatedly asserted his
desire for a speedy trial, and objected to any continuance beyond the seventy-
day limit, which was affirmed by counsel, though counsel did not file a Crim.
R. 4 motion because the trial was already set for November 30, 2016, within the
speedy trial time frame.
[10] On November 18, 2016, the State moved to amend the charging information to
add a charge of Level 1 felony attempted murder, and Guy objected. On
November 21, the State filed a brief in support, asserting that the amendment
did not impede Guy’s ability to present a defense because there were no new
witnesses, no new locations, no new affirmative acts, and “the allegation
contained in Count l: Aggravated Battery has simply been magnified to reflect
an attempt to kill the same victim in Count I.” 3 Appellant’s Appendix Vol. 2 at 91.
The motion noted that while Guy “apparently” had made a speedy trial
3 The record reflects that proposed amendment to add a charge of attempted murder had been discussed with Guy’s counsel as early as October 31.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 5 of 18 request, “the State [] has not seen such a request.” Id. at 90. On November 21,
the State also filed a motion to strike Guy’s September 26 speedy trial request
that the State became aware of at the October 31 hearing.
[11] On November 22, following a hearing, the trial court granted the State’s motion
to amend, but denied the State’s motion to strike Guy’s speedy trial request,
indicating that trial remained set for November 30. On November 23, the court
held an initial hearing on the amended information. Guy made an oral motion
to continue trial, which was granted over the State’s objection. The State filed a
motion to reconsider the denial of its motion to strike Guy’s pro se request for a
speedy trial, which the court set for hearing on November 30. On November
30, Guy filed a motion requesting a determination of which party should be
charged with the delay caused by the continuance and filed a “Motion to be
Released,” seeking discharge. 4 Appellant’s Appendix Vol. 2 at 9.
[12] The court issued an order on December 7, 2016, covering various pending
matters. The trial court granted the State’s motion to reconsider and struck
Guy’s September 26, 2016 request for a speedy trial because it had been
“improperly filed directly by defendant when he was represented by counsel”
and the State had no notice of the request until October 31, 2016, when defense
counsel adopted Guy’s request. Id. at 123. The court found that in such
4 Also on November 30, Guy’s counsel requested that another public defender be appointed due to her resignation. On December 1, the court appointed replacement counsel, who declined appointment. On December 9, the court appointed replacement counsel for Guy.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 6 of 18 circumstances it would be “patently unfair to the State to hold it to a speedy
trial demand of which it never had notice until more than 30 days after it was
‘filed.’” Id. at 123-24. The trial court concluded that Guy’s Crim. R. 4(B)
speedy trial right “was triggered as of October 31, 2016” and ordered trial to be
reset to January 3, 2017, which was within seventy days of October 31.
Appellant’s Appendix Vol. 2 at 124. Because it struck the September 26, 2016 pro
se speedy trial request, the court denied Guy’s Motion to be Released. Guy
moved to withdraw his previous motion to continue, which the trial court
denied, observing that the motion to continue was granted in open court and
that the court acted accordingly by not proceeding to trial on November 30.
The court charged the delay resulting from the continuance to Guy. On
December 20, 2016, Guy withdrew his request for an early trial and requested a
continuance. Id. at 11, 135.
[13] In 2017, competency and sanity evaluations occurred, both of which found Guy
competent to stand trial and determined that he was able to appreciate the
wrongfulness of his actions at the time of the alleged offense. In mid-2018, Guy
petitioned for the appointment of a special prosecutor, which was ultimately
denied. In November 2018, he filed a notice of insanity defense and requests
for an additional competency evaluation, for appointment of new counsel, and
for a continuance. The court ordered the additional evaluation, which found
Guy competent to stand trial. The court did not appoint new counsel, and Guy
withdrew his insanity defense.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 7 of 18 [14] The first jury trial occurred March 18-22, 2019. The jury returned a guilty
verdict on the criminal recklessness and resisting law enforcement charges, and
a not guilty verdict on the attempted murder charge. The jury was unable to
reach a verdict on the aggravated battery charge. The trial court entered
judgment of acquittal on the attempted murder charge but did not enter
judgment of conviction on the criminal recklessness and resisting law
enforcement verdicts “due to the necessity of scheduling a new trial” on the
aggravated battery charge. Appellant’s Appendix Vol. 3 at 94.
[15] A second jury trial on the aggravated battery charge was held on September 23-
26, 2019. The jury found Guy guilty of that offense. On October 24, 2019, the
trial court entered convictions for Level 3 felony aggravated battery and Class A
misdemeanor resisting law enforcement; it did not enter judgment of conviction
on the criminal recklessness guilty verdict due to double jeopardy concerns.
The court sentenced Guy to concurrent terms of thirteen years and one year on
his two convictions. He now appeals. Additional facts will be provided below
as necessary.
Discussion & Decision
I. Retrial on Aggravated Battery [16] Guy contends that his state constitutional double jeopardy protections were
violated by his retrial and subsequent conviction for aggravated battery. Guy’s
position is that his acquittal on the attempted murder charge precluded
relitigation and conviction of the aggravated battery charge because it stemmed
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 8 of 18 from “the very same conduct,” namely attacking David by shooting him in the
head and/or striking him in the head with a bat. Appellant’s Brief at 21. He
urges that the second trial and conviction ran afoul of the actual evidence test
enunciated by our Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind.
1999). 5 We review Guy’s challenge de novo. Cleary v. State, 23 N.E.3d 664,
668 (Ind. 2015).
[17] We first observe that, “[g]enerally speaking, retrial following a hung jury does
not violate the Double Jeopardy Clause.” Hoover v. State, 918 N.E.2d 724, 733-
34 (Ind. Ct. App. 2009) (citing Richardson v. United States, 468 U.S. 317, 324
(1984) and Young v. State, 482 N.E.2d 246, 249 (Ind. 1985) (“It is well settled
that a hung jury operates to discharge the operation of double jeopardy and a
new trial is not barred in such a situation.”)), trans. denied. This is so because,
under the doctrine of continuing jeopardy, “a defendant who is retried
following a hung jury is not placed in jeopardy twice for the same offense,
because the initial jeopardy that attaches to a charge is simply suspended by the
jury’s failure to reach a verdict.” Cleary, 23 N.E.3d at 673 (quoting Davenport v.
State, 734 N.E.2d 622, 625 (Ind. Ct. App. 2000)). “Furthermore, ‘[t]he
5 We recognize that, recently, our Supreme Court issued two opinions that significantly altered the approach to claims of substantive double jeopardy – those claims of double jeopardy that are based on multiple convictions in a single prosecution. See Wadle v. State, 151 N.E.3d 227 (Ind. 2020) and Powell v. State 151 N.E.3d 256 (Ind. 2020). The Wadle Court noted that its holding did not extend to claims of “procedural double jeopardy”—where a defendant is charged with the same offense in successive prosecutions. 152 N.E.3d at 244 n.15 (“Because Wadle’s case presents no question of procedural double jeopardy, we expressly reserve any conclusion on whether to overrule Richardson in that context.”).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 9 of 18 Government, like the defendant, is entitled to resolution of the case by verdict
from the jury.’” Id. (quoting Richardson, 468 U.S. at 326.)
[18] Guy claims, however, that his state constitutional double jeopardy rights were
violated because the same evidence was used to convict him of aggravated
battery in the second trial as had been used to acquit him of attempted murder
in the first trial. In this regard, Guy directs us to Garrett v. State, 992 N.E.2d
710, 714 (Ind. 2013), where our Supreme Court expanded the reach of
Richardson’s actual evidence test 6 to cases in which there has been an acquittal
on one charge and retrial on another charge after a hung jury.
[19] In Garrett, the defendant was charged with multiple counts, including two
separate, but identically worded, counts of rape. At his first trial, evidence was
presented of the two separate incidents of rape. The jury found him not guilty
on the first-occurring rape (Rape A) but deadlocked on the second (Rape B).
When he was retried on the deadlocked rape count, the State presented
evidence of both alleged rapes, and he was found guilty. After his conviction
was affirmed on direct appeal, Garrett sought post-conviction relief, arguing
that his trial and appellate counsel provided ineffective assistance by failing to
challenge alleged violations of double jeopardy protections. The trial court
denied post-conviction relief, we affirmed on appeal, and our Supreme Court
6 Under the Richardson actual evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Richardson, 717 N.E.2d at 53.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 10 of 18 accepted transfer. Garrett v. State, 965 N.E.2d 115 (Ind. Ct. App. 2012), trans.
granted.
[20] The Court found, first, that retrial on the second rape count, upon which the
jury had deadlocked, was not procedurally barred. Then, as a matter of first
impression, it recognized a “slightly modified” Richardson actual evidence test
and held that a double jeopardy violation may occur on retrial if “there is a
reasonable possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of the offense for which the defendant was
acquitted may also have been used to establish all of the essential elements of
the offense for which the defendant was convicted.” Garrett, 992 N.E.2d at 723.
The Court concluded that a violation had occurred in that case because, on
retrial, “the State presented the same evidence of Rape A—the first-in-time
rape—on which the State relied in the first trial and upon which the jury found
Garrett not guilty” but presented very little evidence “concerning Rape B—the
second-in-time rape,” which all parties had agreed was at stake on retrial. Id.
Given that record, the Court concluded that “there is reasonable possibility that
the evidentiary facts used by the jury in the first trial to establish the essential
elements of Rape, for which Garrett was acquitted, may also have been used on
retrial to establish all of the essential elements of Rape for which Garrett was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 11 of 18 convicted[,]” and thus Garrett “was twice prosecuted for the same offense[.]” 7
Id.
[21] Here, Guy argues that, similar to Garrett, “[t]here was more than a reasonable
possibility that the evidentiary facts used by the jury to establish the essential
elements of attempted murder, of which Guy was acquitted, and aggravated
battery, of which was convicted, were the same.” Appellant’s Brief at 15. We
find, however, that Garrett presents a different scenario from that before us and
does not lead us to the conclusion that a double jeopardy violation occurred.
Unlike in Garrett, the State in the present case did not get a second bite at an
acquitted charge. In other words, Guy was not put in jeopardy of being twice
prosecuted for the same offense, here attempted murder, after first being
acquitted of it.
[22] We find that Guy’s case is more akin to the situation presented in Cleary, where
the defendant drank alcohol, drove, and collided with a service vehicle parked
on the side of the road, killing a man. Cleary was charged with five criminal
counts and three infractions, all stemming from the one collision. The jury
found that Cleary was guilty of Counts IV and V, which were misdemeanors,
and had committed the infractions alleged in Counts VI and VII, but it
deadlocked on Counts I, II, and III, which were two felonies and a Class A
7 Although it found a double jeopardy violation, the Court affirmed the denial of post-conviction relief, finding that neither trial counsel nor appellate counsel provided ineffective assistance. Garrett, 992 N.E.2d at 723-24.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 12 of 18 misdemeanor. That is, the jury reached a verdict of guilty on the lesser-
included OWI misdemeanors but deadlocked on the greater offenses that
required proof that Cleary caused the victim’s death and proof of a BAC greater
than .15. No judgment of conviction was entered, and Cleary was retried on all
eight counts and found guilty of Counts I-V and liable for Counts VI and VII,
and he admitted to Count VIII. The trial court entered judgment of conviction
on Count I, Class B felony Causing death when operating a motor vehicle with
a BAC of at least 0.15, and Counts VI, VII, and VIII, three infractions. Cleary
appealed, arguing, among other things, that his second prosecution should have
been barred by double jeopardy, and this court affirmed his convictions.
[23] The Supreme Court granted transfer and, as is relevant here, addressed Cleary’s
Indiana constitutional double jeopardy claim that his retrial on the greater
offenses violated Richardson’s statutory elements and actual evidence tests. The
Cleary Court explained, “[W]e do not believe the tests apply at all[,]” and,
rather, “the doctrine of continuing jeopardy applies to retrial of the greater
offenses” upon which the jury had been deadlocked. Cleary, 123 N.E.3d at 673.
It found that although Cleary’s second trial exposed him to “jeopardy,” it was
not a new jeopardy distinct from his first trial. Id. The Cleary Court
acknowledged Garrett’s expansion of the actual evidence test to cases of retrial
following acquittal and deadlocked charges, but found that Garrett “does not
invite or compel application of either of Richardson’s tests to Cleary’s case”
because (1) Garrett involved two distinct rapes whereas in Cleary’s case “there
was only one act of drunk driving for which Cleary could be convicted[,]” and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 13 of 18 (2) the evidence used in the retrial raised the possibility that Garrett was
convicted based on the facts underlying the rape for which he had been
previously acquitted – giving the impermissible second bite at the apple – which
was not a concern in Cleary’s case because “he was not acquitted or convicted
on Counts I, II, or III at his first trial.” Id. at 675. “His jury deadlocked, and
the State may continue to pursue prosecutions after a hung jury.” Id. This is
what occurred here as well, with the State pursuing a second prosecution for
aggravated battery after the jury hung on that charge.
[24] Alternatively, Guy argues that collateral estoppel precluded the State from
retrying him, asserting that the jury already made a determination about “the
issues of Guy’s intent and the conduct he engaged in” and that the State could
not relitigate those matters in a second trial. Appellant’s Brief at 24. We have
recognized that the doctrine of collateral estoppel (also referred to as issue
preclusion) is not the same as double jeopardy, “but rather is embodied within
the protection against double jeopardy.” Harris v. State, 9 N.E.3d 679, 683 (Ind.
Ct. App. 2013) (quoting Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011)),
trans. denied. “[T]he traditional bar of jeopardy prohibits the prosecution of the
crime itself, whereas collateral estoppel, in a more modest fashion, simply
forbids the government from relitigating certain facts in order to establish the
fact of the crime.” Id. (internal quotation omitted). Essentially the doctrine of
collateral estoppel “precludes the Government from relitigating any issue that
was necessarily decided by a jury’s acquittal in a prior trial.” Id. (quoting Yeager
v. United States, 557 U.S. 110, 119 (2009)).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 14 of 18 [25] Contrary to Guy’s suggestion, the State was not relitigating an issue “that was
necessarily decided by the jury’s acquittal in a prior trial.” Id. Although it
acquitted Guy of attempted murder, the jury did not conclude that the State
failed to prove that he shot and/or clubbed David, as reflected by the guilty
verdict for Level 6 felony criminal recklessness, which required the jury to find
that Guy performed an act with a deadly weapon that created a substantial risk
of bodily injury to David. See Ind. Code § 35-42-2-2(b)(1)(a). Rather, it is
apparent that the jury simply found that the State failed to prove beyond a
reasonable doubt that Guy did not act with specific intent to kill David. See
I.C. §§ 35-42-1-1(1) and 35-41-5-1(a); Rosales v. State, 23 N.E.3d 8, 12 (Ind.
2015) (conviction for attempted murder requires proof of specific intent to kill).
On the other hand, the jury was unable to reach a unanimous decision
regarding whether he knowingly or intentionally inflicted injury on David that
created a substantial risk of death. See I.C. § 35-42-2-1.5.
[26] For all the above reasons, we find that neither double jeopardy nor collateral
estoppel precluded his conviction for aggravated battery in a second trial. See
Harris, 9 N.E.3d at 686 (neither Garrett’s actual evidence test nor collateral
estoppel barred retrial after a hung sexual misconduct charge and rape
acquittal) and Hoover, 918 N.E.2d at 734 (defendant’s acquittal of murder in
first trial did not bar his retrial on felony-murder charge after jury was
deadlocked on felony-murder in first trial).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 15 of 18 II. Speedy Trial [27] Guy argues the trial court erred when it denied his November 30, 2016 motion
that sought release or discharge 8 based on his pro se correspondence filed on
September 26, 2016 that asked for a “fast and speedy trial.” Appellant’s Appendix
Vol. 2 at 46. The broad goal of Indiana’s Criminal Rule 4 is to provide
functionality to a criminal defendant’s fundamental and constitutionally
protected right to a speedy trial. Austin v. State, 997 N.E.2d 1027, 1037 (Ind.
2013). It places an affirmative duty on the State to bring the defendant to trial,
but at the same time is not intended to be a mechanism for providing
defendants a technical means to escape prosecution. Id.
[28] Crim. R. 4(B)(1) provides, in part, that if a defendant moves for an early trial,
he shall be discharged if not brought to trial within seventy calendar days from
the date of such motion. Our Supreme Court has stated that, “once counsel [is]
appointed, [a d]efendant sp[eaks] to the court through counsel.” Underwood v.
State, 722 N.E.2d 828, 832 (Ind. 2000). In that situation, a trial court is not
required to accept the petition and may strike it. See id.; see also Schepers v. State,
980 N.E.2d 883, 887 (Ind. Ct. App. 2012) (trial court properly denied
defendant’s motion to dismiss under Crim. R. 4(B)(1) where he had filed
motion pro se while represented by counsel).
8 Guy asserts that, although his motion used language asking for “release” rather than “discharge,” the nature of the request was clear and adequately brought his claim to the court’s attention. We agree, and our analysis considers it as such.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 16 of 18 [29] Our Supreme Court, in addressing the appropriate standard of review of a trial
court’s decision on a motion for discharge, recognized that “sometimes the trial
court must resolve disputed facts, but on other occasions simply applies the law
to disputed facts.” Austin, 997 N.E.2d at 1039. Where, as here, the relevant
facts are undisputed and the issue is a question of law, “the standard of review –
like for all questions of law – is de novo.” Id.; see also Battering v. State, 150
N.E.3d 597, 600 (Ind. 2020).
[30] In this case, Guy’s written correspondence that, among other things, asked for a
“fast and speedy trial” was filed on September 26. Appellant’s Appendix Vol. 2 at
46. There is no dispute that he was already represented by counsel at that point
and that he knew that he was. The State was not made aware of his speedy trial
request until the October 31, 2016 hearing, at which time counsel for Guy
confirmed agreement with the request but took no additional action because
trial was already set for November 30, within the rule’s seventy-day parameters.
The State did not receive a copy of the correspondence until the November 21
hearing. Under these facts, we agree with the trial court that, at the earliest,
Guy’s speedy trial request began to run on October 31, such that the State had
until January 9, 2017 to try Guy.
[31] On November 22, the trial court granted the State’s motion to amend the
charging information and it continued trial to January 3, 2017, which was
within seventy days of October 31. Thereafter, on November 30, Guy filed his
motion for release, seeking discharge on the basis that he was not brought to
trial within seventy days of his September 26, 2016 request. On December 7,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 17 of 18 the trial court struck Guy’s September 26 request, per the State’s motion, and it
denied Guy’s motion for release/discharge, which he now appeals. We find no
error with the court’s denial of Guy’s motion. As stated, the trial court was
within its authority to not recognize his September 26 pro se motion, especially
given that the State had no notice of it until over thirty days later, and instead
determine that October 31 was the earliest possible start date of his speedy trial
request. Thus, as of November 30, when Guy filed his motion, the time to try
him had not yet passed, and the court properly denied his motion for discharge.
Stephenson v. State, 742 N.E.2d 463, 487, n. 21 (Ind. 2001), cert. denied, 524 U.S.
1105 (2002) (“It is well established that when a motion for discharge for a
Criminal Rule 4 violation is made prematurely, it is properly denied.”)
[32] We reject Guy’s related claim that the speedy trial request “was not stricken
until well after the 70th day from when the request had been made.” Appellant’s
Brief at 16. This again is premised on Guy’s September 26 request, which we
have already found was improper and not effective to begin the proverbial
ticking of the Crim. R. 4(B) clock. The trial court did not err when it denied
Guy’s motion for discharge.
[33] Judgment affirmed.
Mathias, J. and Weissmann, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2756 | January 19, 2021 Page 18 of 18