Terrence Jamual Douglass v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 28, 2015
• Docket: 18A02-1410-CR-726
• Status: Published

Opinion

MEMORANDUM DECISION Apr 28 2015, 10:04 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Robert O. Beymer Gregory F. Zoeller Joelle A. Freiburger Attorney General of Indiana Portland, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Terrence Jamual Douglass, April 28, 2015

Appellant-Defendant, Court of Appeals Case No. 18A02-1410-CR-726 v. Appeal from the Delaware Circuit Court. The Honorable Linda Ralu Wolf, State of Indiana, Judge. Appellee-Plaintiff Cause No. 18C03-1210-MR-3

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 1 of 11 [1] Terrance Jamual Douglass appeals his convictions for Armed Robbery,1 a Class

B felony, Criminal Confinement,2 a Class B felony, and Possession of a Firearm

by a Serious Violent Felon,3 a Class B Felony. He argues that the trial court

erred when it denied his motions to dismiss pursuant to Indiana Criminal Rule

4(B) and 4(C). Douglass also argues that his sentence was inappropriate in light

of the nature of the offenses and his character. Finding no error, we affirm.

Facts [2] On October 22, 2012, Douglass and Freddie Darnell Perry spent time with

Stacy Best. They drove Best’s car to Ivan Coleman’s neighborhood. Perry

called Coleman and told him that he wanted to come to Coleman’s house to

purchase marijuana. Douglass and Perry walked to Coleman’s house. At that

point, Douglass gave Perry his gun, a .45-caliber handgun.

[3] Perry walked into Coleman’s house while Douglass waited outside. Coleman

went to get the marijuana, and when he returned to the front room, Perry

pulled out the gun and pointed it at him. Perry then called Douglass and told

him to come into the house. Douglass entered the house and Perry handed him

the gun. They ordered Coleman to get on the ground, and they restrained him

with zip-ties. Douglass then searched Coleman and took $700 from his pocket.

1 Ind. Code § 35-42-5-1(1). 2 I.C. §§ 35-42-3-3(a)(1), -3(b)(2)(A). 3 Ind. Code § 37-47-4-5(c).

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 2 of 11 [4] At this point, Marcus Jackson arrived at Coleman’s house. Douglass and Perry

kept Jackson and Coleman at gunpoint while they searched the home. They

took a .38-caliber gun, two pairs of shoes, and some marijuana. Perry and

Douglass then forced Jackson and Coleman to leave the house and walk

towards a vacant lot. However, Coleman’s mother, Jackie Seals, drove by them

in her car and recognized her son. Perry and Douglass ran away, and Seals

followed them.

[5] While following Perry and Douglass, Seals passed Jamel Barnes, and she asked

him if he had seen Perry and Douglass. Barnes pointed her in their direction.

Seals drove onto Fifth Street, where she saw movement in the bushes. She

yelled “you robbing people . . . stupid, get a job.” Tr. p. 332. Douglass ran

when he saw Seals’s car on Fifth Street. Seals then continued driving, and, a

short time later, she heard a gunshot. She drove back towards Fifth Street,

where she saw Barnes lying on the ground and called 911.

[6] Douglass fled the neighborhood and made contact with his mother’s boyfriend,

Larry Price. Price and Douglass’s mother, Tamara Douglass, drove Douglass

to Price’s home. From there, Shanta Vance drove Douglass to Anderson.

Eventually, police saw Douglass in Vance’s vehicle, pulled over the vehicle, and

arrested Douglass.

[7] Perry was later arrested in Richmond. The State extended a plea offer to Perry

in exchange for his cooperation and testimony at Douglass’s trial. Perry

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 3 of 11 testified at Douglass’s trial that Douglass had taken part in the commission of

both armed robbery and confinement.

[8] On October 31, 2012, the State charged Douglass with five counts: 1) murder, a

felony; 2) murder, a felony; 3) armed robbery, a class B felony; 4) criminal

confinement, a class B felony; and 5) unlawful possession of a firearm by a

serious violent felon, a class B felony. On November 9, 2012, the trial court

held an initial hearing, at which the Delaware County Public Defender was

appointed to represent Douglass and the case was set for jury trial on April 1,

2013.

[9] On November 28, 2012, Public Defender Douglas Mawhorr filed his

appearance for Douglass, and on December 7, 2012, Public Defender Brandon

Murphy filed his appearance for Douglass. On January 25, 2013, Mawhoor

filed his motion to withdraw, which was granted on January 28, 2013. On

January 29, 2013, Public Defender Steven Bruce filed his appearance for

Douglass.

[10] On January 31, 2013, the trial court held a pretrial conference, at which the

parties agreed to continue the jury trial, and Douglass filed a motion to

continue on February 2, 2013. The motion was granted and the jury trial was

continued to August 12, 2013. On July 11, 2013, Douglass filed another

motion to continue, which was granted, and the jury trial was continued to

October 7, 2013. On September 6, 2013, at the pretrial conference, the State

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 4 of 11 asked for a continuance, which was granted. The jury trial was continued to

January 13, 2014.

[11] The jury trial commenced on January 13, 2014. On January 14, 2014, the trial

court declared a mistrial, and the jury trial was rescheduled to July 28, 2014.

Bruce and Murphy both filed motions to withdraw as public defender, which

were granted.

[12] On February 17, 2014, Douglass, pro se, filed a motion for a speedy trial, which

was granted. The trial court set the jury trial for April 17, 2014. On February

4, 2014, Robert O. Beymer and Alan K. Wilson filed their appearances as

public defenders on behalf of Douglass. On March 4, 2014, the trial court reset

the jury trial for April 3, 2014.

[13] On March 12, 2014, the State filed a motion to disqualify public defender

Wilson. On April 2, 2014, a hearing was held on the motion. However, public

defender Wilson filed a motion to withdraw, which was granted on that date.

Also on April 2, 2014, Joelle Freiberger filed her appearance as a special public

defender on behalf of Douglass.

[14] On April 4, 2014, the State filed a motion to continue and consented to

Douglass’s release on the underlying charges in the instant case. The trial court

granted the continuance and set August 14, 2014 as the new trial date. On

April 8, 2014, Douglass, acting pro se, filed an objection to the change of trial

date, which was struck pursuant to Indiana Trial Rule 11.

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 5 of 11 [15] On April 25, 2014, Douglass filed a motion for discharge pursuant to Indiana

Criminal Rule 4. The trial court granted the motion. However, Douglass

remained incarcerated because he was serving a sentence in another cause. On

July 31, 2014, Douglass filed a motion to dismiss pursuant to Indiana Criminal

Rule 4(B). The trial court denied the motion on August 4, 2014. On August

14, 2014, Douglass filed a motion to dismiss pursuant to Criminal Rule 4(C).

On August 16, 2014, the trial court held a hearing on Douglass’s motion to

dismiss pursuant to Criminal Rule 4(C). The motion was denied.

[16] Douglass’s jury trial began on August 18, 2014. On August 22, 2014, the jury

found Douglass not guilty of murder, but guilty of armed robbery, criminal

confinement, and possession of a firearm by a serious violent felon. The trial

court sentenced Douglass to twenty years for armed robbery, twenty years for

criminal confinement, and twenty years for possession of a firearm. The trial

court ordered the sentences to be served consecutively, for an aggregate

sentence of sixty years. Douglass now appeals.

Discussion and Decision [17] Douglass argues that the trial court erred when it denied his motions to dismiss

pursuant to Indiana Criminal Rule 4(B) and 4(C). Douglass also argues that his

sentence was inappropriate in light of the nature of the offenses and his

character.

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 6 of 11 I. Motion to Dismiss: Criminal Rule 4(B) [18] Douglass first argues that the trial court erred in denying his motion pursuant to

Indiana Criminal Rule 4(B). When reviewing a trial court’s decision under

Criminal Rule 4, this Court defers to disputed findings of fact, but reviews the

trial court’s legal conclusions de novo. Wood v. State, 999 N.E.2d 1054, 1060

(Ind. Ct. App. 2013). The Sixth Amendment to the United States Constitution

and Article 1, Section 12 of the Indiana Constitution guarantee the right to a

speedy trial. Blair v. State, 877 N.E.2d 1225, 1230 (Ind. Ct. App. 2007).

Regarding the date by which a trial must be held, Criminal Rule 4(B) provides

in pertinent 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. Criminal Rule 4 places an affirmative duty on the State to bring the defendant

to trial. Cundiff v. State, 967 N.E.2d 1026, 1028 (Ind. 2012). However, the

purpose of Rule 4 is not to provide defendants with a technical means to avoid

trial. Id.

[19] Here, Douglass filed his speedy trial motion on February 17, 2014. His jury

trial did not take place until August 18, 2014. Appellant’s App. p. 50.

Douglass argues that he was incarcerated for a total of ninety-nine days after his

request for a speedy trial, exceeding the seventy days allotted by Criminal Rule

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 7 of 11 4(B). However, we note that, on April 25, 2014, the trial court issued an order

that Douglass be discharged from custody in the cause underlying the instant

case. Id. at 53-54. Douglass remained incarcerated only because he was

serving a sentence in another cause.

[20] In Cundiff v. State, our Supreme Court held that Criminal Rule 4(B) is only

available to a defendant when he seeks a speedy trial on charges for which he is

incarcerated. 697 N.E.2d at 1031. When the trial court discharged Douglass

on April 25, 2014, Douglass was no longer incarcerated on the charges

underlying the instant case. It is of no matter that Douglass was incarcerated

because he was serving a sentence in another cause number. Douglass was

released on the charges underlying this case on April 25, 2014, which is within

seventy days of February 17, 2014. Therefore, the trial court did not err when it

denied Douglass’s motion to dismiss pursuant to Criminal Rule 4(B).

II. Motion to Dismiss: Criminal Rule 4(C) [21] Douglass also argues that the trial court erred in denying his motion to dismiss

pursuant to Criminal Rule 4(C). As noted above, when reviewing a trial court’s

decision under Criminal Rule 4, this Court gives deference to disputed finding

of fact, but reviews the trial court’s legal conclusions de novo. Wood, 999

N.E.2d at 1060. Indiana Criminal Rule 4(C) provides in relevant part:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 8 of 11 by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar . . . . The rule places an affirmative duty on the State to bring a defendant to trial

within one year of being charged or arrested, but allows for extensions of that

time for various reasons. Cook v. State, 810 N.E2d 1064, 1065 (Ind. 2004).

[22] Douglass’s reliance on Rule 4(C) is misplaced. His first trial, which took place

within a year of his arrest, resulted in a mistrial. Our Supreme Court has held

that the time limitations of Indiana Criminal Rule 4(C) do not apply on retrial.

State v. Montgomery, 901 N.E.2d 515, 519 (Ind. Ct. App. 2009). Therefore, the

trial court did not err in denying his motion to dismiss pursuant to Rule 4(C). 4

III. Sentencing Challenge [23] Finally, Douglass argues that his sentence was inappropriate in light of the

nature of the offenses and his character.5 On appeal, this Court “may revise a

sentence authorized by statute if, after due consideration of the trial court’s

decision, the Court finds that the sentence is inappropriate in light of the nature

4 Where retrial is required, a defendant must rely on his constitutional speedy trial right, which requires that a defendant be tried within a reasonable time. Montgomery, 901 N.E.2d at 519. However, Douglass has made no argument in this regard, and has therefore waived any such argument. Waiver notwithstanding, Douglass did not show that the delay was unreasonable or that it prejudiced him. 5 Douglass also implies in his brief that the trial court may have ordered his sentences to be served consecutively because the trial court agreed with the deputy prosecutor that Douglass should have been found guilty of Barnes’s murder. Appellant’s Br. p. 14. There is nothing in the record to suggest this. We remind counsel for Douglass that Indiana Rule of Professional Conduct 8.2(a) provides that “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” We caution counsel to heed this rule in the future.

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 9 of 11 of the offense and the character of the offender.” Ind. Appellate Rule 7(B).

However, this Court does not substitute its judgment for that of the trial court.

Foster v. State, 795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under Appellate

Rule 7(B), the question is not whether it is more appropriate to impose a

different sentence upon the defendant, but whether the defendant’s sentence is

inappropriate. Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). On

appeal, the defendant bears the burden of persuading this Court that the

sentence he received is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006).

[24] Regarding the nature of the offenses, Douglass went into Coleman’s home

under false pretenses and pointed a gun at him. He restrained Coleman with

zip ties and forced Coleman and Jackson to walk towards a vacant lot.

Coleman feared for his life and, on the walk to the lot, believed that Douglass

was going to kill him. Douglass did not allow Coleman and Jackson to go free.

Rather, he only released them when he was forced to run away because he saw

Coleman’s mother driving behind them. We do not find that Douglass’s

sentence is inappropriate in light of the nature of the offenses.

[25] In considering Douglass’s character, we note that Douglass has been charged

with and convicted of eight felonies. His juvenile and adult criminal history is

extensive. In addition, he has admitted to using a plethora of illegal substances,

some of which have led to convictions. We also note that, in the instant case,

Douglass fled the neighborhood after committing his crimes and enlisted the

help of family and friends to escape, implicating them in his criminal acts.

Court of Appeals of Indiana | Memorandum Decision 18A02-1410-CR-726 | April 28, 2015 Page 10 of 11 Under the circumstances, we do not find that Douglass’s sentence is

inappropriate in light of his character.

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

Najam, J., and Friedlander, J., concur.

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