Rodolfo Lopez, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 20, 2019
• Docket: 19A-CR-98
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 20 2019, 10:05 am regarded as precedent or cited before any 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 Jennifer L. Koethe Curtis T. Hill, Jr. Navarre, Florida Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rodolfo Lopez, Jr., September 20, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-98 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff Alevizos, Judge Trial Court Cause No. 46C01-1802-F6-149

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-98 | September 20, 2019 Page 1 of 3 [1] On February 15, 2018, the State charged Rodolfo Lopez, Jr., in LaPorte

County with four Level 6 felonies, later amending the charging information by

changing the felonies to Level 5 offenses. On May 24, 2018, Lopez, who was

being held in the St. Joseph County Jail on other charges, filed a request to

proceed pro se and a motion for a speedy trial in LaPorte County. A warrant

for Lopez’s arrest for the LaPorte County charges was served on July 3, 2018.

[2] At Lopez’s initial hearing in LaPorte County on July 6, 2018, he waived his

right to counsel and requested a bench trial, which the trial court scheduled for

August 16, 2018. Lopez did not object to the date, nor did he move for

discharge at any point prior to trial. Following the August 16, 2018, bench

trial, the trial court found Lopez guilty as charged, later sentencing him to

concurrent sentences of three years each on all counts. Lopez now appeals.

[3] Criminal Rule 4(B) provides that “[i]f 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 . . . .” A defendant must maintain a position reasonably consistent with

his request for a speedy trial; therefore, he must object at the earliest

opportunity to a trial setting that is beyond the seventy-day time period. Hill v.

State, 777 N.E.2d 795, 797-98 (Ind. Ct. App. 2002). If an objection is not timely

made, the defendant is deemed to have acquiesced to the trial date. Hampton v.

State, 754 N.E.2d 1037, 1039 (Ind. Ct. App. 2001). Furthermore, a defendant

waives review of this issue on appeal if he does not move for discharge or

dismissal prior to trial. Id. at 1040.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-98 | September 20, 2019 Page 2 of 3 [4] In this case, Lopez did not object to the trial date, which he claims exceeded the

seventy-day time limit set forth in Criminal Rule 4(B). Therefore, he

acquiesced to the trial date. Moreover, he did not move for discharge or

dismissal prior to trial, meaning that he has waived the issue for appeal. Lopez

argues that we should afford him leniency because he was pro se, but it is well

established that pro se litigants are held to the same standard as attorneys and

are required to follow procedural rules. E.g., Evans v. State, 809 N.E.2d 338, 344

(Ind. Ct. App. 2004). Therefore, he is not entitled to relief on this basis.

[5] The judgment of the trial court is affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-98 | September 20, 2019 Page 3 of 3