Timothy Schepers v. State of Indiana , 2012 Ind. App. LEXIS 629 ( 2012 )

FILED
Dec 18 2012, 9:14 am
FOR PUBLICATION CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW ADAMS GREGORY F. ZOELLER
Jeffersonville, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TIMOTHY SCHEPERS, )
)
Appellant-Defendant, )
)
vs. ) No. 22A01-1201-CR-39
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
INTERLOCUTORY APPEAL FROM THE FLOYD CIRCUIT COURT
The Honorable J. Terrence Cody, Judge
Cause No. 22C01-1105-FA-1016
December 18, 2012
OPINION – FOR PUBLICATION
BAKER, Judge
This case is before us on interlocutory appeal, where we determine whether
Timothy Schepers’s right to a speedy trial under Indiana Criminal Rule 4 was violated.
Schepers was charged with several criminal offenses, and the trial court appointed a
public defender to represent him. Schepers subsequently filed a pro se motion to have the
public defender removed as counsel and demanded a jury trial within seventy days
pursuant to Criminal Rule 4.
After Schepers filed his motions and demand for a jury trial, and before a ruling
was made on the request for removal of counsel, the trial court held a hearing and
informed Schepers that it was appointing a special public defender to represent him.
Schepers agreed to that appointment. When the trial court set a trial date beyond seventy
days of Schepers’s pro se motion, Schepers moved to dismiss and the trial court
subsequently held a hearing to determine whether a violation of Criminal Rule 4 had
occurred.
Schepers was still represented by counsel when he filed his pro se motions, and
Schepers’s filing of those motions did not amount to a request to proceed with hybrid
representation. Additionally, Schepers’s subsequently-appointed counsel acquiesced to a
trial date that was set beyond the seventy-day rule. For these reasons, we conclude that
the trial court properly denied Schepers’s motion to dismiss. We therefore affirm and
remand this cause for trial.
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FACTS
On May 9, 2011, the State charged Schepers with several drug offenses and one
count of Neglect of a Dependent,1 a class C felony. The trial court conducted an initial
hearing the next day and appointed a public defender to represent Schepers. J. Patrick
Biggs filed his appearance for Schepers on May 18, 2011. Biggs also filed a demand for
jury trial and a motion for discovery that same day.
On June 6, 2011, Schepers filed a pro se motion to have Biggs removed as
counsel. Schepers also stated in his motion that “under no circumstances do I consent to
allow any attorney to file any appearances, or any continuances, outside of my court-
presence.” Appellant’s App. p. 13-14. At the same time, Schepers filed a “pro se
appearance form,” where he again demanded a jury trial and notified the trial court that
no attorney could file an appearance on his behalf. Id. at 15. The next day, Schepers
filed several documents, demanding a jury trial within seventy days of the filing of his
pro se appearance form.
The trial court conducted a hearing regarding Schepers’s motion to remove Biggs
as counsel on June 13, 2011. At that hearing, the trial court informed Schepers that
Andrew Adams would be serving as a special public defender. The trial court concluded
1
Ind. Code § 35-46-1-4.
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that a special public defender would be appointed because Schepers had created “an
impossible situation for . . . Biggs to effectively represent you, and so . . . the solution to
that is to appoint a special public defender, which will be done.” Tr. p. 6. Biggs had not
withdrawn his appearance as Schepers’s counsel prior to the hearing.
The trial court held a subsequent hearing on June 29, 2011, with Adams present.
Although Adams had not yet filed his appearance, he noted for the record that he had
been contracted by the public defender’s office to represent Schepers. The trial court
then had Adams entered into the Chronological Case Summary (CCS) as Schepers’s
counsel.
There had been a pretrial conference scheduled for June 28, 2011, but the trial
court “noted that Mr. Biggs had withdrawn and there was no attorney.” Id. at 10. The
trial court additionally recognized that Biggs had requested the trial court set the matter
for a jury trial and that Schepers later requested an early trial.
Adams informed the trial court that he had spoken “with Schepers about his
request, and that the delay would be attributable to him because he’d requested removal
of Mr. Biggs from the case. [He] would anticipate ninety days.” Id. The trial court
responded, “Okay. So . . . we would be looking at late September or early October.” Id.
at 11. Adams then replied, “that would be fine, your honor.” Id.On July 22, 2011, the trial court issued an order scheduling a final pre-trial
conference for October 20, 2011, with a jury trial scheduled for October 31, 2011. On
August 12, 2011, Adams objected to the trial date and moved to dismiss the case because
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the trial court had not scheduled the jury trial within seventy days as Schepers had
requested in his pro se jury trial demand. Following a hearing on August 19, 2011, the
trial court denied Schepers’s motion to dismiss.
Schepers requested that the trial court certify its denial of his motion to dismiss for
an interlocutory appeal, which was subsequently granted. We then assumed jurisdiction
over the appeal.
DISCUSSION AND DECISION
In addressing Schepers’s claim that the trial court erred in denying his motion to
dismiss, which purportedly denied him of the right to an early trial, we initially observe
that Criminal Rule 4(B)(1) provides that “[i]f 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.” However, the
defendant is not entitled to a discharge “where a continuance with 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.” Id. When reviewing the trial court’s ruling on a motion to dismiss, we
defer to the factual determinations of the trial court and review its legal decisions de
novo. Heinzman v. State, 970 N.E.2d 214, 218 (Ind. Ct. App. 2012).
We note that when counsel is appointed, a criminal defendant speaks to the court
through his or her attorney. Jenkins v. State, 809 N.E.2d 361, 367 (Ind. Ct. App. 2004).
A request to proceed pro se is a waiver of the right to counsel. Stroud v. State, 809
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N.E.2d 274, 279 (Ind. 2004). Thus, there are several requirements to successfully invoke
the right of self-representation. More specifically, the defendant must make a “clear and
unequivocal” request within a reasonable time prior to trial. Id. If the defendant satisfies
this requirement, the trial court should conduct a hearing to determine whether the
defendant’s choice was knowing, intelligent, and voluntary. Id. at 280.
Biggs filed his appearance in the case on May 18, 2011, along with a demand for a
jury trial and a motion for discovery. Appellant’s App. p. 2, 8. Then, on June 6,
Schepers filed his motion to remove Biggs as counsel. The following day, Schepers filed
his pro se appearance and demand for a speedy trial pursuant to Criminal Rule 4. Id. at
13-14, 15-16.
The trial court conducted a hearing on Schepers’s motion to remove Biggs as trial
counsel on June 13, 2011. Prior to that hearing, Biggs was still counsel of record for
Schepers because the trial court had not yet made any ruling on Schepers’s motion. In
other words, when Schepers filed his pro se demand for a speedy trial on June 7, 2011,
Biggs was still representing him.
At the June 13 hearing, the trial court did not hear any evidence about whether
Schepers’s choice to proceed pro se was knowing, intelligent, and voluntary. Rather,
Schepers was told that Adams was going to be appointed as special public defender in the
case. Schepers did not object and responded, “Cool. Thank you.” Tr. p. 3.
The record demonstrates that Schepers was consistently represented by counsel in
this case. That said, we find this court’s decision in Jenkins instructive. The evidence in
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that case demonstrated that the defendant “attempted to file his first request for an early
trial a couple of weeks after his first court-appointed attorneys were allowed to
withdraw,” but two days before the second court-appointed attorney had filed his
appearance. Id. at 367. Jenkins also attempted to file a second early trial request after his
second attorney filed his appearance. Id. On appeal, it was observed that
Jenkins appears to contend that because he did not have either an attorney
of record when his first motion was filed or actual notice of his second
attorney’s appointment when he filed the second motion, he had essentially
asserted his constitutional right to represent himself by filing the pro se
motions.
Id. Notwithstanding Jenkins’s arguments, we held that even though the second counsel
“had not yet filed his written appearance with the court, he had been appointed attorney
for Jenkins by the court’s order” before Jenkins filed his motions. Id. Moreover, it was
determined that “as counsel had been appointed before Jenkins filed either of his early
trial motions, the court was not required to accept the motions for filing.” Id.A different panel of this court recently distinguished the Jenkins holding in
Fletcher v. State, 959 N.E.2d 922 (Ind. Ct. App. 2012), trans. denied. In Fletcher, the
evidence showed that the trial court had appointed a special public defender to represent
the defendant. Id. at 924. However, counsel informed the trial court that he was not able
to accept the appointment.
On the same day that the trial court issued an order stating that the appointed
counsel declined the appointment and appointed a second attorney, Fletcher filed a pro se
motion for a speedy trial. Id. The State subsequently filed a motion to strike Fletcher’s
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motion for a fast and speedy trial, and Fletcher’s counsel eventually objected to setting
the trial date outside the seventy-day limit and moved for discharge. Id.On appeal, the majority “disagreed with the holding in Jenkins to the extent that it
implies that the appointment of counsel and not the appearance of counsel is the relevant
time.” Id. at 929 (emphasis supplied). The Fletcher panel distinguished Jenkins on the
grounds that the trial court in that case had refused Jenkins’s pro se motion because he
was represented by counsel. Id. (Friedlander, J., dissenting).
Even disregarding the disagreement involved in Jenkins and Fletcher, the
distinguishing factor that was discussed in Fletcher, i.e., whether counsel had been
appointed—or whether he had filed an appearance—is inapplicable here. In this case,
Biggs entered his appearance before Schepers filed his pro se motion for an early trial,
and he was still representing Schepers when the pro se motion was filed. When Schepers
petitioned the trial court to remove Biggs as his counsel, the trial court responded by
informing Schepers that it was appointing Adams as special public defender, to which
Schepers seemingly acquiesced. And Biggs was still representing Schepers when the pro
se motions were filed.
Schepers did not clearly and unequivocally assert his right to self-representation.
Therefore, the trial court properly denied Schepers’s motion to dismiss on this basis. See
Jenkins, 809 N.E.2d at 368 (observing that because the defendant did not claim that he
explicitly made known his desire to represent himself in addition to having court-
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appointed counsel, the filing of pro se motions did not amount to a request to proceed
with hybrid representation).
Finally, we note that at the hearing on June 29, 2011, Adams, Schepers’s second
counsel, agreed to a jury trial date in “late September” or October, which was outside the
seventy-day limit, even assuming that a speedy trial request had been filed on June 7.
See State v. Delph, 875 N.E.2d 416, 420 (Ind. Ct. App. 2007) (holding that a defendant’s
acquiescence in the delay of a trial outside the Criminal Rule 4 time limit is not charged
to the State). For this additional reason, Schepers’s claim that the trial court erred in
denying his motion to dismiss fails.
The judgment of the trial court is affirmed, and the cause is remanded for trial.
RILEY, J., and BARNES, J., concur.
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