Terrence Jamual Douglass v. State of Indiana (mem. dec.) ( 2015 )

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.
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[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).
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[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
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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
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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.
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[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.
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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
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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
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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.
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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.
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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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