MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 23 2017, 9:24 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Ricky Allen Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ricky Allen, February 23, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1508-CR-1120 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John Surbeck, Jr., Appellee-Plaintiff. Judge Trial Court Cause No. 02D06-1412-F5-160
Barnes, Judge.
Case Summary [1] Ricky Allen appeals his conviction for Level 5 felony battery. We affirm.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 1 of 14 Issues [2] Allen raises six issues, which we consolidate and restate as:
I. whether Allen’s right to a speedy trial was violated;
II. whether the trial court properly admitted the deposition testimony of two witnesses;
III. whether the trial court properly denied Allen’s motion to dismiss;
IV. whether the evidence is sufficient to sustain Allen’s conviction; and
V. whether the trial court properly calculated credit time.1
Facts [3] On December 23, 2014, Allen and his wife, Canethia Allen, argued while Tonia
Freeman and her boyfriend were visiting them. Allen hit Canethia on the back
of her head and threw her to the ground, which caused her to injure her elbow.
After Freeman and her boyfriend left the house, Allen again hit Canethia,
grabbed her neck, and repeatedly punched her. Freeman returned to get a coat
that she had forgotten. She pulled Canethia out of the house when Canethia
opened the door. The police arrived and arrested Allen.
1 Allen’s sixth issue seems to simply be a restatement of his other issues.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 2 of 14 [4] The State charged Allen with Level 5 felony battery. Allen chose to represent
himself during the proceedings. On January 2, 2015, Allen requested a speedy
trial. On January 9, 2015, the trial court set Allen’s trial for March 24, 2015,
and noted that the date was slightly outside of the “seventy (70) day rule” due
to congestion on the court’s calendar. 1/9/15 Hrg. Tr. p. 24.
[5] On March 24, 2015, Canethia and Freeman failed to appear for the trial. The
State noted that Canethia had been cooperative throughout the proceedings,
stated that she had been hospitalized the previous weekend, and requested an
emergency continuance. The trial court granted the continuance and scheduled
a status hearing for March 31, 2015. At the status hearing, the State discussed
its unsuccessful efforts to locate Canethia. The trial court issued a bench
warrant for her failure to appear and set the jury trial for May 19, 2015. At the
status hearing, Allen filed numerous motions, including a motion to dismiss
and a motion for discharge. At some point after the March 31st status hearing
and before an April 14th status hearing, the trial court released Allen on his
own recognizance on the battery charge, but he was still held on a pending
probation revocation proceeding. See 3/31/15 Hrg. Tr. p. 15; 4/14/15 Hrg. Tr.
p. 15. At the April 14th status hearing, the trial court told Allen that it would
address his outstanding motions. The trial court noted that Allen had so many
motions, many of which were redundant, that it was difficult “not to get lost in
all the paper. . . .” 4/14/15 Hrg. Tr. p. 30. The trial court asked “what else is
outstanding that you want to deal with, ‘cause we’re gonna deal with it today or
it’s done.” Id. The trial court addressed several motions that had been filed by
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 3 of 14 Allen, including a motion to dismiss the charges, which the trial court denied.
The State also informed the trial court that it was concerned about Freeman
appearing at the trial. The State had been unable to locate her and believed that
she would not appear at the rescheduled trial.
[6] On May 15, 2015, during a pre-trial conference, the State presented witnesses
regarding its efforts to locate both Canethia and Freeman. The trial court found
that the State had “made diligent effort to secure the attendance of these two (2)
witnesses; that they have failed to appear and, at least tentatively, we do not
expect them to appear on Tuesday [the trial date].” 5/15/15 Hrg. Tr. p. 49.
The trial court found that, if Canethia and Freeman failed to appear at the trial,
their depositions, which were previously taken by Allen, would “be permitted
to be used for testimony in lieu of their appearance.” Id.
[7] Allen’s jury trial began on May 19, 2015. Canethia and Freeman did not
appear for the trial, and their redacted depositions were read to the jury. The
jury found Allen guilty of battery, and he stipulated to the prior battery
conviction. The jury then found Allen guilty of Level 5 felony battery. The
trial court sentenced Allen to five years in the Department of Correction with
no credit time and consecutive to his sentences for two probation revocations.
Allen now appeals.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 4 of 14 Analysis I. Speedy Trial
[8] Allen first argues that his speedy trial rights were violated. In speedy trial cases
“where the issue is a question of law applied to undisputed facts, the standard
of review—like for all questions of law—is de novo.” Austin v. State, 997
N.E.2d 1027, 1039 (Ind. 2013). However, where a trial court makes a factual
finding of congestion or emergency under Indiana Criminal Rule 4 based on
disputed facts, the standard of review is the clearly erroneous standard. Id. at
1040. “We neither reweigh the evidence nor determine the credibility of
witnesses.” Id. “We consider only the probative evidence and reasonable
inferences supporting the judgment and reverse only on a showing of clear
error.” Id. “Clear error is that which leaves us with a definite and firm
conviction that a mistake has been made.” Id.
[9] Both the U.S. and Indiana Constitutions protect the right of an accused to a
speedy trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 12. “The speedy-trial
right is a fundamental principle of constitutional law that has been zealously
guarded by our courts.” Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012)
(internal quotations omitted). Indiana Criminal Rule 4 generally implements
the constitutional right of an accused to a speedy trial and provides:
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
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 5 of 14 there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.
Ind. Crim. R. 4(B)(1). In Austin, 997 N.E.2d at 1038-39, our supreme court
explained:
Criminal Rule 4(B) presents at least three hurdles at the trial court level: First, when a criminal defendant files a motion for a speedy trial, the trial court must set the defendant’s case for trial within seventy days—which might require, to an extent we discuss below—a re-prioritization of its current caseload. Second, if the trial court finds it cannot accomplish this prioritization and bring the defendant to trial within seventy days because of court congestion, it may order a continuance—and that finding of congestion is then subject to challenge by way of the defendant’s motion for discharge. And third, if the trial court orders such a continuance, it still must keep sight of the defendant’s constitutional right to a speedy trial—and Rule 4(B) therefore permits the continuance only to the extent that the defendant proceeds to trial within a reasonable time after the close of the seventy-day window.
[10] Here, Allen filed his speedy trial request on January 2, 2015, and the seventy-
day period would have expired on March 13, 2015. The trial court specifically
found that its calendar was congested and set the case for trial on March 24,
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 6 of 14 2015. Allen does not challenge the trial court’s determination that its calendar
was congested. At the March 24, 2015 trial date, Canethia and Freeman did
not appear, and the State requested a continuance to obtain Canethia’s
presence. The trial court granted the State’s request for a continuance and
noted that it had ninety days to bring Allen to trial. Allen was ultimately
brought to trial on May 19, 2015.
[11] The trial court was apparently referring to Indiana Criminal Rule 4(D), which
extends the seventy-day speedy trial deadline under certain circumstances:
If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.
Any exigent circumstances may warrant a reasonable delay beyond the
limitations of Criminal Rule 4. Otte v. State, 967 N.E.2d 540, 545 (Ind. Ct. App.
2012), trans. denied. “The reasonableness of such delay must be judged in the
context of the particular case.” Id. “The absence of a key witness through no
fault of the State is good cause for extending the time period requirements.”
Wooley v. State, 716 N.E.2d 919, 925 (Ind. 1999).
[12] Prior to the March 24, 2015 trial date, Canethia and Freeman had been
cooperating and had participated in depositions. The State was aware that
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 7 of 14 Canethia had been hospitalized over the weekend prior to the trial date, and the
State was uncertain as to her reason for failing to appear. The trial court
reasonably determined that a continuance was in order pursuant to Indiana
Criminal Rule 4(D). Allen was then brought to trial on May 19, 2015, well
within the ninety days allowed under Rule 4(D). We find no speedy trial
violation. See Otte, 967 N.E.2d at 546 (holding that an extension under Indiana
Criminal Rule 4(D) was justified).
II. Admission of Depositions
[13] Next, Allen argues that the trial court erred by admitting the depositions of
Canethia and Freeman during Allen’s jury trial. Allen argues that the
admission of the depositions in lieu of their testimony violated his right to
confrontation. The Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .” “A witness’s testimony
against a defendant is thus inadmissible unless the witness appears at trial or, if
the witness is unavailable, the defendant had a prior opportunity for cross-
examination.” Lehman v. State, 926 N.E.2d 35, 39 (Ind. Ct. App. 2010) (citing
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004)), trans. denied. In
Crawford, the Supreme Court held that the admission of a hearsay statement
made by a declarant who does not testify at trial violates the Sixth Amendment
if: (1) the statement was testimonial and (2) the declarant is unavailable and the
defendant lacked a prior opportunity for cross-examination. Howard v. State,
853 N.E.2d 461, 465 (Ind. 2006). “The Court emphasized that if testimonial
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 8 of 14 evidence is at issue, then ‘the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross-examination.’”
Id. (quoting Crawford, 541 U.S. at 68, 124 S. Ct. 1354).
[14] Similarly, Indiana Evidence Rule 804 provides that former testimony is “not
excluded by the hearsay rule if the declarant is unavailable as a witness.” Ind.
Evid. R. 804(b). Former testimony is testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Ind. Evid. R. 804(b)(1). A declarant is “unavailable” if the declarant “is absent
from the trial or hearing and the statement’s proponent has not been able, by
process or other reasonable means, to procure” the declarant’s attendance. Ind.
Evid. R. 804(a)(5)(A).
[15] Here, the trial court admitted Canethia’s deposition and Freeman’s deposition
in lieu of their live testimony. The State presented evidence during an earlier
hearing regarding its extensive attempts to locate the women. Although both
women had been cooperative earlier in the proceedings, they had suddenly
stopped responding to phone calls and subpoenas. The trial court properly
determined that the women were “unavailable” and that Allen, who took their
earlier depositions, had a prior opportunity to cross-examine the women. See
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 9 of 14 Thomas v. State, 966 N.E.2d 1267, 1272 (Ind. Ct. App. 2012) (holding that the
trial court properly admitted a pre-trial deposition in lieu of a witness’s
testimony), trans. denied. The trial court did not err by admitting the
depositions.
III. Motion to Dismiss
[16] Allen next argues that the trial court erred by denying his motion to dismiss.
According to Allen, he filed a motion to dismiss “all charges due to lack of
evidence” on March 31, 2015. Appellant’s Br. p. 2. Allen contends that the
trial court did not rule on or acknowledge his motion.
[17] The Chronological Case Summary indicates that, on March 31, 2015, Allen
filed several motions, including a motion to dismiss. Appellant’s App. Vol. I p.
2(k). In the motion to dismiss, Allen argued that the charges against him
should be dismissed because his speedy trial rights had been violated and
because the State lacked enough evidence to prosecute as a result of Canethia’s
and Freeman’s failure to appear on March 24, 2015. In the motion, Allen
requested that the trial court dismiss the charges against him or grant him “an
O.R. bond for an immediate release.” Id. at 36(a). At some point after the
March 31st status hearing and before an April 14th status hearing, the trial
court released Allen on his own recognizance on the battery charge, but he was
still held on a pending probation revocation proceeding. See 3/31/15 Hrg. Tr.
p. 15; 4/14/15 Hrg. Tr. p. 15. At the April 14th hearing, the trial court denied
the motion to dismiss. See 4/14/15 Hrg. Tr. p. 45.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 10 of 14 [18] The trial court, in fact, did address Allen’s motion to dismiss. Further, we have
already held that Allen’s speedy trial rights were not violated. As for his
argument that the State lacked enough evidence to prosecute, we disagree.
Allen cites no authority for the proposition that he was entitled to dismissal
prior to trial based on a lack of evidence simply because of Canethia and
Freeman’s failure to appear at the March 24, 2015 trial date. The trial court
properly continued the trial date and properly admitted their depositions at the
May 19, 2015 trial. Allen’s argument fails.
IV. Sufficiency of the Evidence
[19] Allen argues that the evidence is insufficient to sustain his conviction. When
reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.
[20] The State charged Allen with Level 5 felony battery. The charging information
alleged that Allen “did knowingly or intentionally touch Canethia Allen in a
rude, insolent, or angry manner, resulting in bodily injury” and that Allen had a
prior battery conviction against the same victim. Appellant’s App. Vol. I p. 7.
At the time of Allen’s offense, the statute provided that “a person who
knowingly or intentionally . . . touches another person in a rude, insolent, or Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 11 of 14 angry manner” commits battery. Ind. Code § 35-42-2-1(b)(1) (amended by Pub.
L. No. 65-2016, § 33 (eff. July 1, 2016)). The offense was a Class A
misdemeanor if it resulted in bodily injury to any other person. I.C. § 35-42-2-
1(c). The offense was a Level 5 felony if the “person has a previous conviction
for battery against the same victim.” I.C. § 35-42-2-1(f)(4).
[21] Allen argues that the evidence is insufficient to sustain his conviction because
Canethia allegedly gave contradictory statements to the police and during her
deposition. He also argues that the trial court erred by admitting her deposition
at the jury trial. We have held that the trial court properly admitted the
deposition. In the deposition, Canethia stated that Allen slammed her to the
ground and hit her and that she suffered bodily injuries. Allen’s claim
regarding contradictory statements is merely a request that we reweigh the
evidence, which we cannot do. Bailey, 907 N.E.2d at 1005. The evidence is
sufficient to sustain his conviction.
V. Jail Time Credit
[22] Allen argues that the trial court failed to give him jail time credit. The
“[d]etermination of a defendant’s pretrial credit is dependent upon (1) pretrial
confinement, and (2) the pretrial confinement being a result of the criminal
charge for which sentence is being imposed.” Hall v. State, 944 N.E.2d 538, 542
(Ind. Ct. App. 2011), trans. denied. “‘Pre-sentence jail time credit is a matter of
statutory right, not a matter of judicial discretion.’” Id. (quoting Weaver v. State,
725 N.E.2d 945, 948 (Ind. Ct. App. 2000)). “When a defendant is incarcerated
on multiple unrelated charges at the same time, a period of confinement may be Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 12 of 14 the result of more than one offense.” Id. “If a person is incarcerated awaiting
trial on more than one charge and is sentenced to concurrent terms for the
separate crimes, he is entitled to credit time applied against each separate term.”
Id. However, “‘[w]here a defendant is convicted of multiple offenses and
sentenced to consecutive terms, the jail credit is applied against the aggregate
sentence.’” Id. (quoting Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999)).
[23] Allen argues that he was entitled to 188 days (December 23, 2014, to June 29,
2015) for the time that he was incarcerated prior to sentencing. This issue was
discussed repeatedly during the trial court proceedings. During this time
period, Allen was also incarcerated for two probation revocation proceedings.
At some point after the March 31st status hearing and before an April 14th
status hearing, the trial court released Allen on his own recognizance on the
battery charge, but he was still held on the pending probation revocation
proceedings. See 3/31/15 Hrg. Tr. p. 15; 4/14/15 Hrg. Tr. p. 15. The trial
court denied Allen’s request for credit time when it sentenced him in this action
because the credit time was applied to the probation revocation proceedings,
which were consecutive to the sentence in this action. On appeal, Allen has
failed to demonstrate that he was entitled to additional credit time to be applied
to his sentence in this action. Allen has failed to demonstrate that the trial
court’s order was erroneous.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 13 of 14 Conclusion [24] Allen’s speedy trial rights were not violated, and the trial court properly
admitted depositions of Canethia and Freeman in lieu of their testimony. The
trial court also properly denied Allen’s motion to dismiss and properly
calculated his credit time. Finally, the evidence is sufficient to sustain Allen’s
conviction. We affirm.
[25] Affirmed.
Kirsch, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017 Page 14 of 14