Saunders v. State

562 N.E.2d 729, 1990 Ind. App. LEXIS 1453, 1990 WL 177554
CourtIndiana Court of Appeals
DecidedNovember 13, 1990
Docket03A01-9004-CR-164
StatusPublished
Cited by12 cases

This text of 562 N.E.2d 729 (Saunders 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
Saunders v. State, 562 N.E.2d 729, 1990 Ind. App. LEXIS 1453, 1990 WL 177554 (Ind. Ct. App. 1990).

Opinions

ROBERTSON, Judge.

A jury found Donald F. Saunders guilty on March 6, 1987 of two counts of dealing in cocaine as class A felonies, one count of dealing in a schedule I controlled substance [734]*734(LSD) as a class B felony, two counts of conspiracy to commit dealing in cocaine as class A felonies, and one count of conspiracy to commit dealing in a schedule I controlled substance (LSD) as a class B felony. The trial court sentenced Saunders to the presumptive terms of thirty (80) years for each class A felony and of ten (10) years for each class B felony and ordered all sentences to be served consecutively for a total of one hundred forty (140) years. Saunders appeals these convictions and sentences and appeals from the procedures followed at trial; however, he raises no issue which merits reversal.

The evidence reveals that Ronald and Theresa Gibbs allowed Saunders to live in their home until they discovered he was growing marijuana plants there. Soon after they asked him to leave, Ron found a prescription vial, which had belonged to his wife, in an alley near their home. The vial contained a residue of white powder, and Ron turned it over to the police. The label had been removed from the vial, and Theresa found it behind a dresser in the room which Saunders had occupied. Saunders was the last person seen in the alley where Ron found the vial.

The police tested the white residue and found it to be cocaine. A white powder found on a small bowl in what had been Saunders' room was later determined to be a controlled substance. Based upon this information, Sergeant Knulf asked Ron to become a confidential informant. Ron agreed to make controlled buys from Saunders but refused to be compensated for the work.

On April 14, 1986, Ron informed Saunders he had a friend who would willingly purchase cocaine supplied by Saunders, who replied he could supply whatever amount was needed. Saunders quoted prices and amounts and even provided a handwritten schedule to Ron. The two then agreed to meet the next day.

On April 15, Ron met with Saunders and wore a body transmitter so the transaction could be recorded by the police. Saunders again provided a schedule of prices and amounts, but they exchanged no drugs or money. However, the next day, Ron gave Saunders $600.00 to purchase cocaine, which Saunders delivered to Ron later that night.

On April 24, Ron again met Saunders and gave him $50.00 to purchase a sample of LSD, which was to be delivered the next day. Saunders met with Ron the next day and produced three tablets of LSD. Ron again wore a body transmitter to permit recording of the transaction, and the police also recorded the meeting on a videotape. At that time, Ron gave Saunders $700.00 to purchase more cocaine, which was to be delivered later that day. Saunders delivered the cocaine to Ron later that evening, and the police arrested him outside of Ron's home.

After his arrest, Saunders gave the police a statement in which he admitted he had taken money from Ron to buy cocaine and LSD. He admitted he had delivered LSD to Ron but denied he had delivered any cocaine.

I.

Was Saunders denied his right to a speedy trial when he was not tried within seventy days after he filed his motion for an early trial?

The record reveals the following relevant dates.

June 11, 1986 motion for early trial [70th day: August 20, 1986]
June 17, 1986 trial set for August 12, 1986
July 25, 1986 Saunders orally requests change of counsel; new counsel appointed
July 31, 1986 counsel requests continuance and files new motion for early trial [70th day: October 9, 1986]
trial set for October 7, 1986 August 4, 1986
counsel moves to withdraw August 18, 1986
August 22, 1986 new counsel appointed
September 15, 1986 new counsel appointed
September 26, 1986 counsel requests continuance for preparation
September 30, 1986 trial reset for December 2, 1986
October 27, 1986 counsel moves to withdraw
November 14, 1986 original counsel reappointed
November 19, 1986 counsel requests continuance
November 26, 1986 Saunders files pro se motion to dismiss due to 70-day rule violation
[735]*735counsel moves to withdraw December 19, 1986
Saunders files pro se motion for early trial; [70th day: March 10, 1987]; December 19 motion to withdraw denied; trial reset for March 8, 1987 December 80, 1986
Saunders files pro se motion to dismiss January 8, 1987
February 19, 1987 motion to dismiss denied
February 27, 1987 counsel moves to withdraw
March 8, 1987 motion to withdraw denied; trial begins

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 that period is had on his motion or the delay is otherwise caused by his act. Ind.Crim. Rule 4(B)(1). The acts of an attorney under this rule are attributed to the client. Vaughan v. State (1984), Ind.App., 470 N.E.2d 374, trans. denied. Delay caused by a change of counsel will be charged to a defendant where actual delay results. Biggs v. State (1989), Ind.App., 546 N.E.2d 1271.

In addition, the movant under this rule must maintain a position which is reasonably consistent with the request he has made. Failure at any point to do so constitutes an abandonment of the request, and the motion by which it was made ceases to have legal viability. Rutledge v. State (1981), Ind., 426 N.E.2d 638. Therefore, the filing of a subsequent motion for early trial is deemed an abandonment of any previous motion because it is inconsistent with the previous request. Id.

In this case, all acts of counsel for Saunders are attributable to him. On June 11, 1986, he moved for an early trial. The 7Oth day would have been August 20, 1986; and the trial court set trial for August 12, 1986, within the 70-day limit. Saunders himself subsequently requested a change of counsel, and the trial court granted the request. New counsel requested a continuance and filed a new motion for early trial on July 31, 1986, that is, within the previous 70-day limit. This new request for an early trial was inconsistent with Saunders' previous request and constitutes an abandonment of that request. The new 70-day limit thus ended on October 9, 1986; and the new trial date set for October 7, 1986 was within this period.

In August and September of 1986, counsel for Saunders changed several times due to conflicts with his case. New counsel requested a continuance for preparation of the case on September 26, 1986, that is, within the then current 70-day limit; and trial was set for December 2, 1986, which was beyond the 70-day period set to end on October 9, 1986.

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Bluebook (online)
562 N.E.2d 729, 1990 Ind. App. LEXIS 1453, 1990 WL 177554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-state-indctapp-1990.