Robert Barger v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 06 2019, 8:49 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel C. Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Barger, September 6, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-494
v. Appeal from the Putnam Superior
Court
State of Indiana, The Honorable Charles D. Bridges,
Appellee-Plaintiff Judge
Trial Court Cause No.
67D01-1712-F3-177
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 1 of 9
[1] Robert Barger brings this interlocutory appeal of the trial court’s denial of his
motion to dismiss. Barger argues that he was forced to make an impossible
decision between having legal representation and having a timely trial. We are
compelled to affirm.
Facts
[2] On December 12, 2017, the State charged Barger with seven criminal counts.
At the December 13, 2017, initial hearing, the trial court appointed counsel for
Barger and imposed a $30,000 bond.1
[3] Barger’s jury trial was scheduled for May 1, 2018. On April 27, 2018, Barger’s
counsel filed a motion to continue based on ongoing plea negotiations. 2 The
trial court granted the motion and re-set the trial for July 24, 2018. That date
came and went, but no trial occurred and no summonses, witness and exhibit
lists, or proposed jury instructions were filed. On July 27, 2018, the trial court,
by Chronological Case Summary (CCS) entry, directed Barger’s attorney to file
a “Motion on the 7/24/2018 Jury Trial.” Appellant’s App. Vol. II p. 6.
[4] On August 6, 2018, Barger’s counsel filed a motion to continue the jury trial,
citing the same ongoing plea negotiations as the reason. The trial court granted
the motion and rescheduled the trial for January 29, 2019. On August 29, 2018,
1
Barger has been unable to post the bond and has remained incarcerated since the time of his arrest.
2
Although the motion was filed mere days before trial, no summonses, witness and exhibit lists, or proposed
jury instructions had been filed with the trial court.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 2 of 9
Barger filed a pro se motion requesting “Hybrid Representation” and a “fast
and speedy trial pursuant to Criminal Rule 4(B).” Id. at 50. Barger explained
the reasons for his requests:
[C]ongestion in the public defender system and unavailability of
counsel due to heavy caseload are delaying communication on
time sensitive matters—such as filing for a fast and speedy trial.
[] Defendant has failed to secure a meeting with counsel and
failed to secure a fast and speedy trial—despite 3 attempts
through the jails [sic] legal mail system.
Id. at 50-51. On September 7, 2018, Barger’s counsel filed a motion requesting
a fast and speedy trial. On September 21, 2018, the trial court issued an order
granting that motion and rescheduling the trial for November 13, 2018.
[5] On September 27, 2018, Barger’s counsel filed a motion to withdraw because he
had accepted a new job—with the prosecutor’s office—that was scheduled to
begin on October 1, 2018. The next day, the trial court granted the motion to
withdraw and appointed a new public defender to represent Barger. That same
day, Barger filed a pro se motion asking to represent himself because his newly
appointed attorney had represented him in a different case (in the same trial
court) and had withdrawn because of a conflict of interest.
[6] On October 30, 2018, without holding a hearing, the trial court granted Barger’s
motion to proceed pro se and withdrew the appointment of counsel. On
October 31, 2018, Barger appeared pro se at a pretrial hearing. The deputy
prosecutor reminded the trial court that it needed to give Barger the required
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 3 of 9
advisements about proceeding pro se; the trial court elected not to advise Barger
in that regard at that time, indicating that it would do so at the final pretrial
hearing.
[7] On November 7, 2018, the trial court conducted a final pretrial hearing. The
deputy prosecutor had spoken with Barger before the hearing and Barger had
decided he wanted an attorney to represent him. During the hearing, the trial
court told Barger, “Well, you are not new to the criminal justice system, so
when you said you wanted to proceed pro se, I know that you knew what you
were doing.” Supp. Tr. Vol. II p. 4. The trial court gave Barger the choice to
have stand-by counsel or an appointed attorney and Barger chose to have an
appointed attorney. The trial court noted that the new attorney would likely
want to continue the trial and asked Barger whether he would waive his speedy
trial request; Barger responded affirmatively.
[8] The trial court, however, did not appoint counsel immediately. The State
indicated that it intended to explore a plea deal with Barger but that it would
not “be able to communicate directly with Mr. Barger” if counsel was
appointed. Id. at 7. The trial court agreed to delay the appointment to allow
the negotiations to occur. Barger agreed, telling the State and the trial court
that he was eager to “get it done and over with as quick as possible.” Id. at 6.
[9] On November 13, 2018, the day of Barger’s jury trial, the trial court appointed
counsel for Barger. On November 21, 2018, the jury trial was rescheduled for
March 5, 2019, by CCS entry. On December 6, 2018, Barger, by counsel,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 4 of 9
objected to the new jury trial date and filed a motion to dismiss; the trial court
denied the motion on December 27, 2018. At a hearing on January 10, 2019,
the trial court reconsidered the motion, noting that “playing the system is not
going to work in this court, or any other court, as far as I’m concerned, which I
think is what Mr. Barger is trying to do.” Tr. Vol. II p. 35. The trial court
denied the motion but then certified the order for interlocutory appeal.
Discussion and Decision
[10] Barger argues that the trial court erred by denying his motion to dismiss
pursuant to Criminal Rule 4(B), which provides as follows:
If any defendant held in jail . . . 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 . . . .
In reviewing a trial court’s Rule 4(B) decision, we will neither reweigh the
evidence nor assess witness credibility. Austin v. State, 997 N.E.2d 1027, 1040
(Ind. 2013). We will reverse only upon a showing of clear error, which occurs
when we are left with the definite and firm conviction that a mistake has been
made. Id.
[11] There are multiple stages of this proceeding that give us pause and cause us
great concern.
• Barger’s first trial date was continued mere days beforehand because of
ongoing plea negotiations. Even though trial was days away, counsel
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 5 of 9
had not filed summonses, witness and exhibit lists, or proposed jury
instructions, nor had preparations been made to impanel a jury.
• Barger’s second jury trial date came and went with absolutely no action
on the part of the attorneys or the trial court. Tardily, Barger’s counsel
filed a motion to continue, but again, no summonses, witness and exhibit
lists, or proposed jury instructions were filed and no preparations were
made to impanel a jury. We agree with Barger that “after ten months of
imprisonment[,] . . . two prior jury trial settings had come and gone,
seemingly without any intention on the part of Barger’s counsel, the
State, or the trial court to actually hold a jury trial . . . .” Appellant’s Br.
p. 11.
• Only after Barger filed a pro se motion for a fast and speedy trial—over
eight months after his arrest—did his attorney echo that request in a
motion.
• After Barger’s attorney withdrew, the trial court appointed a new public
defender—who had already withdrawn from representing Barger in a
different matter because of a conflict of interest. At that point, Barger
filed a motion to proceed pro se. The trial court granted that motion
without holding a hearing.
• At a pretrial hearing just weeks before the trial date, the deputy
prosecutor reminded the trial court that it had not advised Barger about
the dangers of proceeding to a jury trial without an attorney. The trial
court did not provide the advisements, indicating that it would do so at
the final pretrial hearing.
• At a final pretrial hearing one week before trial, Barger requested an
attorney. The trial court agreed to appoint one but did not do so, instead
agreeing to the State’s request that Barger remain unrepresented for plea
negotiations. Barger agreed to waive his speedy trial request so that his
new attorney would have time to get up to speed.
• A week later—on the date the trial was scheduled to begin—the trial
court finally appointed counsel for Barger and continued the trial.
Nearly a month later, Barger’s new attorney objected to the trial date and
filed a motion to dismiss.
We suspect that Barger did not receive zealous representation from his first
public defender. And we are confused as to why the second trial date came and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 6 of 9
went with no timely action on anyone’s part. We very much wish that the trial
court had held a hearing regarding Barger’s request to proceed pro se and
advised him of the dangers and consequences of that course of action before
ruling on the motion. We also would have greatly preferred the trial court to
have appointed an attorney to represent Barger at the hearing in which he made
the request, rather than delaying for another week to give the State time to
continue plea negotiations directly with Barger.
[12] All of that said, on this record, we are nevertheless compelled to affirm. Barger
does not argue that the pretrial phase during which he requested to proceed pro
se was a “critical stage” of the proceeding that required immediate advisements.
See Hopper v. State, 957 N.E.2d 613, 616 (Ind. 2011) (noting that a defendant’s
right to counsel arises during critical stages in which incrimination may occur
or where the opportunity for effective defense must be seized or foregone). Nor
does he deny that he waived his speedy trial request or that his newly appointed
attorney did not immediately object to the trial date. See Hahn v. State, 67
N.E.3d 1071, 1080 (Ind. Ct. App. 2016) (holding that it is incumbent on a
defendant to object at his earliest opportunity when the trial date is scheduled
beyond the time limits prescribed by Criminal Rule 4).
[13] Instead, Barger argues that the course of events forced him to make an
impossible choice between his right to representation and his right to a speedy
trial. We certainly agree that Barger was placed in a difficult position in this
case. But the trial court found that it was, at least in part, a position of his own
creation. At one hearing, the trial court commented that Barger is not new to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 7 of 9
the criminal justice system and “knew what [he] was doing,” supp. tr. vol. II p.
4, by asking to proceed pro se and then changing course the week before trial; at
another hearing, the trial court opined that Barger had tried to “play[] the
system” and that the strategy would not “work in this court,” tr. vol. II p. 35.
We are not in a position to, and will not, second-guess the trial court’s
conclusion that Barger’s actions were an attempt to manipulate the system.
[14] Moreover, when a defendant takes action that delays the proceeding—even
when the delay is in pursuit of some other constitutional right—that time is
chargeable to the defendant. See, e.g., State v. Larkin, 100 N.E.3d 700, 705 (Ind.
2018) (holding that delay due to defendant’s motion for a change of judge was
chargeable to him in response to defendant’s arguments that he should not have
to choose between a fair trial and a speedy trial); Curtis v. State, 948 N.E.2d
1143, 1150 (Ind. 2011) (holding that delays due to defendant’s request for a
competency evaluation and motion to suppress were chargeable to defendant);
Baumgartner v. State, 891 N.E.2d 1131, 1134 (Ind. Ct. App. 2008) (holding that
delays due to defendant changing attorneys are chargeable to defendant).
[15] As the United States Supreme Court has observed, “[a] hard choice is not the
same as no choice.” United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000).
Here, the situation in which Barger found himself was partly the result of
circumstances beyond his control and partly the result of his own choices.
Under these circumstances, while we do not condone the process employed by
the trial court, we are compelled to affirm.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 8 of 9
[16] The judgment of the trial court is affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-494 | September 6, 2019 Page 9 of 9