Lockert v. State

711 N.E.2d 88, 1999 Ind. App. LEXIS 959, 1999 WL 415419

Opinions

OPINION

STATON, Judge

Charles E. Lockert brings this interlocutory appeal from the denial of his third motion for speedy trial.

Lockert raises two issues on appeal, which we restate as:

I. Whether the trial court’s denial of Lockert’s third motion for speedy trial violated Ind.Crim. Rule 4(B)(1). ■

II. Whether Lockert’s right to a speedy trial under- Atiele I, § 12 of the Indiana Constitution or the Sixth Amendment of .the U.S. Constitution has been violated.

We affirm and remand with instructions.

In August, 1974, Lockert was charged with first degree murder, felony murder, accessory after the fact of felony murder, and murder while perpetrating a kidnaping. The first three charges were filed under Cause Number' 74-109¹ and the murder while perpetrating a kidnaping charge was filed under Cause Number 74-108.² In February, 1975, Lockert and the State reached a plea agreement under which Lockert pleaded guilty to felony murder under Cause Number 74-109 and received a life sentence. The other charges under Cause Number 74-109 were dismissed.

In addition, the plea agreement provided that Cause Number 74-108 would be continued, per Lockert’s request, unless and until Lockert (a) sought post-conviction relief; (b) appealed; or (c) escaped or left the jurisdiction of the Indiana Department of Correction.- Lockert agreed to waive his rights under Crim. R. 4 with respect to the continued cause. Lockert filed a petition for post-conviction relief (PGR) in 1977 and a second PCR in 1991. Lockert has also filed two appeals³ and a federal Habeas Corpus petition, none of which have been successful. The State has not sought a trial date for Cause Number 74-108.

On October 20, 1994, Lockert filed a motion for speedy trial pursuant to Crim. R. 4(B)(1) on the charge under Cause Number 74-108. The State objected to Lockert’s motion. On November 4, 1994, Lockert filed a motion to dismiss the charge based on the State’s failure to prosecute. Lockert’s motion for dismissal was denied on December 7, 1994 and his motion for speedy trial was denied on December 16,1994.

On October 30, 1995, Lockert filed a second motion for speedy trial pursuant to Crim. R. 4(B)(1). The State again objected. On February 8, 1996, Lockert again moved to dismiss the charge under Cause Number 74-108. The trial court denied Lockert’s second motion for speedy trial on February 9, 1996 and his second motion for dismissal on March 14,1996.

Lockert filed his third motion for speedy trial pursuant to Crim. R. 4(B)(1) on May 18, 1998. The trial court denied this motion on June 23, 1998. The trial court certified this interlocutory appeal on October 6, 1998. This Court accepted jurisdiction pursuant to App. R. 4(B)(6) on November 13,1998.

I.

Crim. Rule k-(B)(l)

Lockert contends that the trial court was required to follow the provisions of Crim. R. 4(B)(1) and set his trial within seventy days of his motion or discharge him.⁴ We disagree. Lockert’s plea agreement states, in relevant part:

(4) That I would request and do hereby request a continuance in Cause No. 74-108, that being a criminal action alleging the offense of murder while perpetrating a kidnapping.

(5) That I would further waive all rights and do hereby knowingly waive all rights to a trial setting under Criminal Rule of Procedure # 4.

(Record 14-15). Lockert expressly waived his right to a trial setting or dismissal pursuant to the rigid time constraints of Crim. R. 4. Therefore, the trial court’s refusal to set- a trial date did not contravene Crim. R. 4(B)(1).⁵

II.

Constitutional Speedy Trial Rights

Crim. R. 4 is intended to implement the constitutional right to a speedy trial. However, the rule itself is not a constitutional guarantee, and the rule is not co-extensive with constitutional guarantees. Shields v. State, 456 N.E.2d 1033, 1036 (Ind.Ct.App.1983). Lockert is entitled to a speedy trial under Article I, § 12 of the Indiana Constitution and under the Sixth Amendment of the U.S. Constitution, despite his waiver of rights under Crim. R. 4. In determining whether a defendant’s constitutional right to a speedy trial has been violated under either constitution, Indiana and federal courts apply the ad hoc balancing test established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Sweeney v. State, 704 N.E.2d 86, 102 (Ind.1998), cert. denied, — U.S. -, 119 S.Ct. 385, 142 L.Ed.2d 318 (1998). The Barker analysis employs four factors: (1) the length of the delay; (2) the timeliness of the defendant’s assertion of his right; (3) the Reasons for the delay; and (4) prejudice to the defendant. Id. In analyzing these factors, the conduct of both the State and the defendant are weighed. Harrell v. State, 614 N.E.2d 959, 963 (Ind.Ct.App.1993), reh. denied, trans. denied.

The U.S. Supreme Court identified the length of the delay as “to 'some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no neeéssity for inquiry into the other factors that go into the balance.” Sturgeon v. State, 683 N.E.2d 612, 616-17 (Ind.Ct.App.1997), trans. denied, (quoting Barker, 407 U.S. at 530, 92 S.Ct. at 2192). The charge of murder while perpetrating a kidnaping under Cause Number 74-108 has been pending agáinst Lockert for approximately twenty-five years. A delay of twenty-five years is presumptively prejudicial. See id. at 616 (eighteen month delay presumptively prejudicial). Thus, we must inquire into the other factors: (1) the timeliness of Lockert’s assertion of his right; (2) the reasons for the delay; and (3) prejudice to the defendant.

Lockert sought an indefinite continuance in the matter in February, 1975. Under the terms of the plea agreement, the State agreed to consent to this continuance unless Lockert (a) filed a petition for post conviction relief under Cause Number 74-109; (b) filed an appeal under Cause Number 74-109 or a motion to dismiss under 74-108; or (c) escaped or left the jurisdiction of the Department of Correction. Thus, under the terms of the agreement, the State was free to prosecutfe Lockert under Cause Number 74-108 at any time after he filed his first PCR petition in 1977. However, the State did not request a trial date and the cause remained pending pursuant to Lockert’s original request. Lockert did not request a trial date until October, 1994, when he filed his first motion for speedy trial. Thus, the first twenty years of delay are attributable to Lockert.⁶

Lockert first asserted his desire for a speedy trial in October, 1994. He continued to assert his right to trial for the next forty-four, months.⁷ The State, on the other hand, consistently opposed the setting of a trial date, and the trial court, relying on Lockert’s waiver of Crim. R. 4’s protections, refused to set the matter for trial. Lockert did indeed waive his rights under Crim. R. 4; however, he did not waive his constitutional rights to a speedy trial. Although the trial court was technically correct in denying Lockert’s Crim. R. 4 motions, the court should have proceeded to set a trial date. At the point when Lockert filed his first Crim. R. 4 motion, it was apparent that Lockert no longer desired the continuance he negotiated in his plea agreement. The delay in Lockert’s trial after he first filed a Crim. R. 4 motion is appropriately chargeable to the State.

The delay for which the State is responsible, forty-four months, is substantially less than the delay attributable to Lockert. Nevertheless, the State’s delay is a consider able length of time, which we must balance against the other factors, including prejudice to Lockert as a result of the State’s delay.⁸ Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation.⁹ Sweeney, 704 N.E.2d at 103. Prejudice is assessed in light of the three interests that the right to a speedy trial is designed to protect: (1) to prevent oppressive incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Id. at 103 (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193.).

Of these interests, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always re-fleeted in the record because what has been forgotten can rarely be shown.

Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

Although both Lockert’s and the State’s ability to present their cases has undoubtedly been affected by the passage of twenty-five years, Lockert has not alleged any specific prejudice with respect to his ability to defend the charge against him. He has not asserted that witnesses are unavailable, memories have faded, or that evidence has been lost due to the delay. Further, even if Lockert had made such allegations, he would be required to demonstrate that the prejudice to his defense was a result of the State’s delay and not of his own.

In addition to preventing impairment of an accused’s defense, speedy trial guarantees also serve to prevent oppressive incarceration and to minimize anxiety and concern of the accused. Sweeney, 704 N.E.2d at 103. Generally, the oppressive incarceration that speedy trial guarantees are intended to prevent is pre-trial incarceration for the pending offense, not incarceration for other convictions. Lockert is not incarcerated under Cause Number 74-108; he is in prison as a result of his conviction under Cause Number 74-109.

The dissent correctly cites Smith v. Hooey, 393 U.S. 374, 378-79, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), for the proposition that an accused incarcerated for another offense may also be subject to oppressive incarceration, anxiety and concern over the untried charge. (Opinion at 9-L-95, Bailey, J., dissenting). Further, we agree that the still-pending Murder charge under Cause Number 74-108 may be prejudicial to Lockert’s application for parole under Cause No. 74-109. (Op. at 95). However, we cannot ignore the fact that Lockert sat on his rights, never seeking trial until he became eligible for parole under Cause Number 74-109 in 1994. Too, we cannot conclude that Loc-kert’s anxiety and concern over the untried charge has prejudiced his ability to take advantage of his institutional opportunities. As the dissent points out, “Lockert’s record and accomplishments while in the custody of the Department of Correction have been exemplary.” (Op. at 95).

The State is responsible for forty-four months of delay in bringing Lockert to trial. While this is not an insubstantial length of time, we must balance it against Lockert’s responsibility for the first twenty years of delay, Lockert’s failure to assert his speedy trial rights until he became eligible for parole under Cause No. 74-109, and Lockert’s failure to demonstrate actual prejudice beyond the prejudice to his application for parole. After consideration of all of these factors, we conclude that Lockert has not demonstrated that the State has deprived him of his constitutional right to a speedy trial.

We wish to emphasize, however, that we can discern no valid reason for the State to have delayed the trial as it has done here. Lockert has a constitutional right to a speedy trial. Lockert has asserted that right and is entitled to a trial at the earliest available date.

We affirm and remand with instructions to the trial court to set Cause Number. 74-108 for trial.

FRIEDLANDER, J., concurs. BAILEY, J., dissents with separate opinion.

Footnotes

1

. Cause Number 74-109 is now Cause Number 25C01-7410-CR-00109.

2

. Cause Number 74-108 is now Cause Number 25C01-7410-CF-00108.

3

.Lockert's first appeal, from the denial of his first petition for post-conviction relief, is published at 271 Ind. 226, 391 N.E.2d 613 (1979). His second appeal, from the denial of his second petition for post-conviction relief, is published at 627 N.E.2d 1350 (Ind.Ct.App.1994).

4

. Crim. R. 4(B)(1) provides, in relevant part:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. ■

5

. We recognize that Paragraph 3 of the plea agreement, which states that Lockert "would not file an appeal or a petition for post-conviction relief with respect to Cause No. 74-109 or Cause No. 74-108,” is arguably a waiver of post-conviction remedies. Plea provisions which waive the right to seek post-conviction remedies are void and unenforceable. Majors v. State, 568 N.E.2d 1065, 1067-68 (Ind.Ct.App.1991), reh. denied, trans. denied. However, the procedural history of this case reveals that the provision has never been enforced to restrict Lockert’s rights. In fact, Lockert has previously filed two petitions for post-conviction relief and two appeals, none of which were denied on the basis of waiver. Too, we emphasize that this provision is separate and distinct from the provisions dealing with Lockert's desire for, and the State's acquiescence in, a continuance in Cause No. 74-108. Paragraph 4 of the plea agreement evidences Loc-kert's desire for a continuance in Cause No. 74-108. In paragraph 6, the State agreed to consent to Lockert's continuance unless Lockert appealed or filed a PCR petition in Cause No. 74-109. This language did not restrict Lockert’s post-conviction rights. It merely imposed a condition on his ability to indefinitely postpone trial under Cause No. 74-108. Lockert was free to exercise his post-conviction rights at any time under this provision of the agreement. Thus, we conclude that Lockert’s arguably unenforceable waiver of post-conviction remedies does not affect the validity of Lockert's waiver of Crim. R. 4 provisions.

6

. The dissent posits that the first twenty years of delay "could be attributed to the State's lack of reasonable diligence or negligence,” since it could have prosecuted Lockert any time after he filed his first PCR in 1977. (Op. at 94, n. 11, Bailey, J., dissenting.) We disagree. When a defendant requests an indefinite continuance and later becomes dissatisfied that his trial has not been reset, he must take’ some affirmative action to notify the court that he now desires to go to trial. Wheeler v. State, 662 N.E.2d 192, 194 (Ind.Ct.App.1996). Wheeler dealt specifically with a defendant's rights pursuant to Crim. R. 4.

However, we believe the same analysis should apply here. Lockert sought a delay of his trial in 1975. This delay was to Lockert’s advantage. Lockert finally sought a trial date in 1994, when it became apparent that delay was no longer to his advantage. We think it unwarranted to hold the State responsible for the first twenty years of delay under these circumstances.

7

. The time period represents the period between October, 1994 and June, 1998, when Lockert's third motion for speedy trial was denied.

8

. In support of its argument that a forty-four month delay has not deprived Lockert of his speedy trial rights, the State argues that our supreme court has recently held that a comparable delay of thirty-nine months between arrest and trial was not a violation of the defendant's speedy trial rights. State’s brief at 11 (citing Sweeney, 704 N.E.2d at 86 (Ind.1998)). The State’s argument is misguided. In Sweeney, the court found that only 256 days of the thirty-nine month delay was chargeable to the State. 704 N.E.2d at 102-03.

9

. The dissent points to our determination that a delay of twenty-five years is presumptively prejudicial and argues that we are incorrect, in light of this determination, to place the burden of proving actual prejudice on Lockert. However, our determination that twenty-five years is presumptively prejudicial is merely the triggering mechanism that requires our inquiry into the other factors, including actual prejudice to the defendant, set forth in the Barker analysis.

The dissent also relies on Scott v. State, 461 N.E.2d 141 (Ind.Ct.App.1984), for the proposition that we should presume that Lockert suffered actual prejudice. In Scott, the entire delay was attributed to the State and occurred between the filing of an information and Scott’s arrest. Scott was wholly unaware of the pending charge for seven years. However, the court distinguished Scott’s situation from one where “ the defendant is aware he must face a charge of committing a crime on a particular date and, therefore, has the opportunity to avoid the particular prejudice of a memory fade or loss by making notes, identifying witnesses and memorializing their recollections, etc.” Id. at 144. Here, Lockert was aware of the pending charge and, thus, was not denied the opportunity to avoid prejudice. Too, we cannot overlook the fact that Lockert sat on his rights for twenty years, thus, inviting prejudice during that time. Accordingly, we hold that Lockert must demonstrate actual prejudice as a result of the State's delay.