Deandre L. Williams 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 Nov 21 2019, 9:54 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
Michael E. Hunt Curtis T. Hill, Jr.
Monroe County Public Defender Attorney General of Indiana
Bloomington, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Deandre L. Williams, November 21, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-734
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Mary Ellen
Appellee-Plaintiff Diekhoff, Judge
Trial Court Cause No.
53C05-1705-F3-489
53C05-1705-F3-434
May, Judge.
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[1] Deandre J. Williams pursues an interlocutory appeal of the trial court’s denial
of his motion for discharge under Indiana Criminal Rule 4(A). He argues the
trial court’s denial of his motion was clearly erroneous. We affirm.
Facts and Procedural History
[2] On May 4, 2017, the State charged Williams in Cause Number 53C05-1705-F3-
000434 (“F3-434”) with two counts of Level 3 felony armed robbery, 1 one
count of Level 3 felony robbery resulting in bodily injury, 2 and one count of
Level 5 felony robbery. 3 The State also alleged Williams was an habitual
offender. 4 The probable cause affidavits supporting the charges allege Williams
committed two underlying robberies, one at a Bloomington hotel and another
at a Bloomington liquor store. The trial court issued an arrest warrant, and
officers executed the warrant on May 11, 2017. At the initial hearing held on
the same day as Williams’ arrest, the trial court set the matter for jury trial on
November 6, 2017.
[3] On May 18, 2017, the State charged Williams in Cause Number 53C05-1705-
F3-000489 (“F3-489”) with five counts of Level 3 felony armed robbery. 5 The
State alleged Williams committed a string of additional robberies in the
1
Ind. Code § 35-42-5-1.
2
Ind. Code § 35-42-5-1.
3
Ind. Code § 35-42-5-1.
4
Ind. Code § 35-50-2-8.
5
Ind. Code § 35-42-5-1.
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Bloomington area, including robbing a pizza parlor on two separate occasions
and robbing once each a laundromat, convenience store, and bakery. After
Williams’ initial hearing in F3-489, which occurred on May 19, 2017, F3-434
and F3-489 proceeded together on the same procedural track. The court
periodically reviewed the cases through a series of pretrial conferences.
At the October 23, 2017, pretrial conference, Williams’ counsel and the court
discussed the possibility of placing Williams on home detention at Wheeler
Mission pending resolution of his charges. The court wanted assurance that
Williams would be able to comply with GPS monitoring while at Wheeler
Mission and that Wheeler Mission would commit to accepting Williams on a
specific date. The trial court indicated that it would have to contact Wheeler
Mission to see if it could coordinate Williams’ release to home detention. In
the meantime, Williams requested the matter be set for another pretrial
conference. When the trial court suggested setting the matter for pretrial
conference on December 12, 2017, the State noted Williams had a trial date set
in November. Williams’ counsel stated in response, “[w]e would waive or
move to vacate.” (Oct. 23, 2017, Tr. at 6.) The court set the matter for a
further pretrial conference on December 12, 2017. A Chronological Case
Summary note following the October 23, 2017, pretrial conference states, “Jury
Trial scheduled for 11/06/2017 at 8:30 AM was cancelled. Reason: Agreement
of Parties.” (App. Vol. II at 4.) The court held additional pretrial conferences
over the next year.
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[4] On November 2, 2018, Williams filed a Motion to Discharge arguing that he
was entitled to release on his own recognizance because the State failed to bring
him to trial within six months of his arrest. The State responded to Williams’
motion on December 3, 2018. In its response, the State listed the number of
days attributable to Williams and argued “the defendant’s eligibility for relief
under Criminal Rule 4(A) or 4(C) has not vested.” (Id. at 52.) In response to
Williams’ motion, the State did not list the fifty-day time period between
October 23, 2017, and December 12, 2017, as attributable to the defense, but
the State also did not calculate the number of days attributable to the State.
[5] On December 13, 2018, the trial court denied Williams’ motion for discharge
during a pretrial conference and stated on the record:
At no time did the defense object to a continuance nor at any
time did the defense say specifically that it was not. There were
conversations done frequently with Mr. Williams, in fact with
Mr. Williams addressing the Court, about going to Wheeler to
live; living someplace else; looking into someplace else. The
Court at the suggestion and request of the defense looked at other
places to live and looked at other places for him to be. Was
willing to do them but they did not work out. It was not
anything that the prosecution was putting forward it was things
that the defense was asking. Those continuances are attributed to
the defense.
(Dec. 13, 2018, Hearing Tr. at 5-6) (errors in original). Williams filed a motion
to correct error, and the trial court denied his motion. Williams then sought
and was granted leave to pursue this interlocutory appeal.
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Discussion and Decision
[6] In evaluating Criminal Rule 4 motions, we review questions of law de novo and
factual findings for clear error. Bradley v. State, 113 N.E.3d 742, 748 (Ind. Ct.
App. 2018), reh’g denied, trans. denied. Rule 4(A) provides:
(A) Defendant in Jail. No defendant shall be detained in jail on
a charge, without a trial, for a period in aggregate embracing
more than six (6) months 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 by his act, or where
there was not sufficient time to try him during such period
because of congestion of the court calendar; provided, however,
that in the last-mentioned circumstance, the prosecuting attorney
shall make such statement in a motion for continuance not later
than ten (10) days prior to the date set for trial, or if such motion
is filed less than ten (10) days prior to trial, the prosecuting
attorney shall show additionally that the delay in filing the
motion was not the fault of the prosecutor. 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. Any
defendant so detained shall be released on his own recognizance
at the conclusion of the six-month period aforesaid and may be
held to answer a criminal charge against him within the
limitations provided for in subsection (C) of this rule.
Crim. R. 4(A) (emphasis in original). A defendant in custody and awaiting trial
is entitled to be released from jail if 180 days pass from the date he is arrested or
charged (whichever is later) without trial. Id. However, every day a
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defendant’s trial is delayed because of the defendant’s own motion or act, or
because of a congested court calendar, does not count toward the 180 days. Id.Criminal Rule 4 is meant to protect a defendant’s right to expeditious resolution
of criminal charges without providing the defendant with a technical means to
escape prosecution. Logan v. State, 16 N.E.3d 953, 959 (Ind. 2014). When the
record is silent regarding the reason for a delay, the delay is attributed to the
State. Schwartz v. State, 708 N.E.2d 34, 37 (Ind. Ct. App. 1999). Whether or
not a trial date is set, a delay in trial on the defendant’s own motion is not
attributed to the State for Criminal Rule 4 purposes. Cook v. State, 810 N.E.2d
1064, 1067 (Ind. 2004). Also, if the defendant delays a task that must be
completed before trial, that amounts to the defendant delaying trial. Payton v.
State, 905 N.E.2d 508, 512 (Ind. Ct. App. 2009), trans. denied.
[7] The parties generally agree regarding which party is responsible for most of the
delays in bringing Williams to trial. For example, both parties agree the forty-
nine-day delay between the date of Williams’ arrest in F3-434, May 11, 2017,
and the pretrial conference on June 29, 2017, is attributable to the State.
However, the parties disagree regarding which side should be charged with the
fifty-day delay from October 23, 2017, to December 12, 2017. The impetus of
this appeal is to determine whether it was clear error not to attribute those days
to the State. For clarity, we have distilled the historical tally of these days into
the following chart.
Dates Total Number of Days Party Charged with the Days
5/11/17 to 6/28/17 49 State
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6/29/17 to 8/27/17 60 Defense
8/28/17 to 9/24/17 28 State
9/25/17 to 10/22/17 28 Defense
10/23/17 to 12/11/17 50 *in dispute on appeal*
12/12/17 to 1/15/18 35 Defense
1/16/18 to 3/5/18 49 State
3/6/18 to 5/2/18 58 Defense
5/3/18 to 6/11/18 40 State
6/12/18 to 11/2/18 143 Defense
The fifty days in dispute on appeal is dispositive. If the fifty days are attributed
to Williams, then Williams is not entitled to release on his own recognizance
pursuant to Criminal Rule 4(A) because the total delay charged to the State is
only 166 days for F3-434 and 159 days for F3-489. However, if the fifty days
are attributed to the State, then Williams is entitled to release on his own
recognizance because the total delay charged to the State is 216 days for F3-434
and 209 days for F3-489.
[8] Williams asserts the record is silent regarding the fifty-day delay from October
23, 2017, to December 12, 2017, and therefore, these days should be attributed
to the State. Williams bases his assertion on the fact that the Chronological
Case Summary entry for October 23, 2017, states: “Defendant appears in the
custody of the sheriff and by counsel. Cause set for further pretrial conference
on December 12, 2017 at 10:00 a.m. . . . Parties are checking on dates
defendant can go to Wheeler Mission.” (App. Vol. II at 4.) Williams also
notes that, in response to his motion to discharge, the State did not list this fifty-
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day time period between October 23, 2017, and December 12, 2017, as
attributable to the Defense. If we credit those fifty days to the State, Williams
argues, then Williams was held in custody without trial for over six months
because of delays not attributable to him. Therefore, Williams argues he is
entitled to be released on his own recognizance. 6
[9] However, the transcript of the October 23, 2017, pretrial conference reveals the
matter was continued at the defendant’s request, so the court could determine
whether Wheeler Mission was an appropriate place for Williams to serve home
detention. When the State brought up that Williams’ jury trial was set for
November 6, 2017, Williams moved to vacate the trial. 7 As the trial court
noted at the hearing on Williams’ Motion to Discharge, Williams requested
that he be allowed to serve his pretrial confinement on home detention. That
was not something the State requested. In fact, the State objected to Williams’
6
In his reply brief, Williams argues the State waived its argument that the fifty days between October 23,
2017, and December 12, 2017, should be attributed to Williams because the State did not raise the argument
before the trial court. In Ind. Bureau of Motor Vehicles v. Gurtner, we held that a driver’s argument that she was
not provided adequate due process before her driving privileges were suspended was not waived even though
she did not raise it before the trial court because she was an appellee seeking to affirm a trial court’s
judgment. 27 N.E.3d 306, 312 (Ind. Ct. App. 2015). We noted that an appellee is entitled to defend a trial
court’s judgment on any grounds, and we observed that “[t]his rule is consistent with the presumption in all
appeals that a trial court’s judgment is correct as well as the general rule that on appeal we will affirm a
judgment on any theory supported by the record.” Id. Consequently, while the State did not attribute the
days to Williams in response to Williams’ motion to discharge, the State is not precluded from arguing on
appeal that those days should be attributed to Williams.
7
Williams argues he had no option but to agree to vacate the trial date at the October 23, 2017, pretrial
conference because the State failed to timely exchange information in discovery. However, this argument
was not raised in Williams’ initial brief. It is well settled that “[a]ppellants are not permitted to present new
arguments in their reply briefs, and any argument an appellant fails to raise in his initial brief is waived for
appeal.” Kelly v. Levandoski, 825 N.E.2d 850, 858 n.2 (Ind. Ct. App. 2005), trans. denied; see also Ind. App. R.
46(C). Consequently, Williams has waived any argument that additional delay should be attributed to the
State because the State failed to cooperate in discovery. See Cobbs v. State, 987 N.E.2d 186, 191 n.1 (Ind. Ct.
App. 2013) (holding argument presented for first time in reply brief was waived).
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potential release to home detention. Consequently, as the trial court explained
at the December 13, 2018, pretrial conference, any delay caused by trying to
find a place for Williams to serve home detention should be charged to the
defense. We cannot say this was clear error based on the record before the trial
court, and therefore, we hold Williams’ motion to discharge was properly
denied. See Austin v. State, 997 N.E.2d 1027, 1043 (Ind. 2013) (holding trial
court did not clearly err in finding court congestion warranted setting
defendant’s trial outside period provided by speedy trial rule).
Conclusion
[10] We hold the fifty-day delay between October 23, 2017, and December 12, 2017,
is attributable to Williams because Williams agreed to vacate the November
2017 trial date, and the reason for the delay was for the trial court to determine
if Wheeler Mission was an adequate home detention placement for Williams,
given Williams wanted to be released to home detention pending resolution of
his charges. Therefore, the total number of days of incarceration attributable to
the State between Williams’ arrest and the date of the motion to discharge was
166 for F3-434. In F3-489, the total delay attributed to the State was 159 days.
Both delays are less than the 180-day delay required by Indiana Criminal Rule
4(A) to mandate Williams’ release on his own recognizance. Consequently,
Williams’ motion to discharge was premature, and we affirm the trial court.
[11] Affirmed.
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Bailey, J., and Tavitas, J., concur.
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