Lawrence Benton Roper v. State of Indiana

FILED
Jun 09 2017, 8:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patrick V. Baker Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lawrence Benton Roper, June 09, 2017
Appellant-Defendant, Court of Appeals Case No.
53A04-1607-CR-1691
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Kenneth G. Todd,
Appellee-Plaintiff Judge
Trial Court Cause No.
53C03-1506-F2-618
May, Judge.
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[1] Lawrence Benton Roper appeals his convictions of two counts of Level 4 felony
dealing cocaine 1 and one count each of Level 5 felony dealing cocaine 2 and
Level 5 felony dealing a narcotic drug. 3 He argues his convictions should be
discharged because the trial court did not comply with his Criminal Rule 4(B)
request for a speedy trial. We affirm.
Facts and Procedural History
[2] On June 25, 2015, the State charged Roper with three counts of Level 4 felony
dealing cocaine, 4 and one count each of Level 2 felony dealing cocaine, 5 Level 4
felony possession of a firearm by a serious violent felon, 6 and Level 5 felony
dealing a narcotic drug. The State further alleged Roper was a habitual
offender. 7 At his initial hearing on June 25, 2015, Roper indicated he thought
he “would be [his] best attorney in all this,” (Tr. at 8), and proceeded pro se. He
also verbally requested a “fast and speedy trial.” (Id. at 10.) The judge at that
hearing stated, “I’ll make sure that Judge Todd gives to you notice about the
1
Ind. Code §§ 35-48-4-1(a)(1) & 35-48-4-1(c)(1) (2014).
2
Ind. Code § 35-48-4-1(a)(1) (2014).
3
Ind. Code § 35-48-4-1(a)(1) (2014).
4
The State later amended one of these counts to a charge of Level 5 felony dealing cocaine.
5
Ind. Code §§ 35-48-4-1(a)(2) & 35-48-4-1(e)(1) (2014).
6
Ind. Code § 35-47-4-5(c) (2014).
7
Ind. Code § 35-50-2-8(a) (2014).
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fast and speedy trial. . . . [Y]ou need to talk to Judge Todd about that when you
see him.” (Id. at 10, 13.)
[3] At the June 25 hearing, the court set a pretrial conference date for August 27,
2015. Between June 25 and August 27, Roper sent multiple pieces of
correspondence to the court regarding statements by another person allegedly
involved in the crimes. On August 7, 2015, the State filed a Motion to Set
Cause for Jury Trial. The court did not rule on that motion.
[4] On August 27, 2015, the parties appeared in court, but the pre-trial hearing was
continued to September 24, 2015. 8 The Chronological Case Summary (“CCS”)
entry for that hearing reads: “Defendant appears in custody. This cause set for
further pretrial on September 24, 2015 at 1:30 p.m. Defendant may hire private
counsel.” (Appellant’s App. Vol. 2 at 4.) That same day, the court entered a
Pretrial Order that indicates the State’s anticipated witnesses, the State’s
anticipated exhibits, and the State’s plea offer, and orders another “pretrial
conference on 9/24/15 at 1:30 p.m.” (Id. at 41.) The CCS does not indicate
the parties filed any pleadings between August 27, 2015, and September 24,
2015.
[5] On September 24, 2015, Roper appeared pro se at the pretrial hearing and
requested a continuance because he had hired private counsel on September 23.
8
All discussions were off-record on August 27, 2015. However, at later hearings, the parties testified
regarding what happened that day.
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Roper signed a motion for continuance that contained a waiver of his right to a
speedy trial under “Criminal Rule 4.” (Id. at 42.) The trial court granted
Roper’s motion for a continuance and set the case for jury trial on November
30, 2015, and a pretrial conference on October 19, 2015.
[6] At the pretrial conference on October 19, the court found Roper indigent,
appointed counsel for him, and set the next hearing for November 19. On
November 19, Roper moved for a continuance of the trial, and the court reset
trial for February 22, 2016. On January 14, 2016, Roper moved for a
continuance, and the court reset trial for April 18, 2016. In March and early
April, the court dealt with some pre-trial evidentiary issues. Roper’s jury trial
began on April 18 and ended April 21. The jury found him guilty of four of six
charges, and Roper then pled guilty to being a habitual offender and waived his
right to be sentenced within thirty days.
[7] On May 31, 2016, Roper filed a motion to discharge his conviction, arguing the
trial court had failed to bring him to trial within the time required by Criminal
Rule 4(B). The State filed a response to his motion. The court held a hearing
as to the motion on the same day as Roper’s sentencing 9 and denied Roper’s
motion for discharge.
9
The court ordered Roper to serve four years for Level 5 felony dealing in cocaine concurrent to eight years
for each Level 4 felony dealing in cocaine. The court ordered Roper to serve four years for Level 5 felony
dealing in narcotic drug consecutive to those three concurrent sentences. Finally, the court attached the
habitual offender enhancement to one of the eight-year sentences for Level 4 felony dealing in cocaine. Thus,
Roper’s aggregate sentence is 20 years, and the court ordered him to serve that time consecutive to the
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Discussion and Decision
[8] Roper argues the trial court erred when it did not grant his motion for discharge
under Indiana Criminal Rule 4(B)(1), which states:
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.
Provided, however, that in the last-mentioned circumstance, the
prosecuting attorney shall file a timely motion for continuance as
set forth in subdivision (A) of this rule. 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.
[9] The text of that rule expressly requires a defendant be discharged unless brought
to trial within seventy days. However, “the rule and subsequent interpretations
have recognized that court congestion and other exigent circumstances may
justify a reasonable delay beyond the seventy-day period.” Clark v. State, 659
N.E.2d 548, 551 (Ind. 1995). “But what the rule does not contemplate, as we
have said, is pursuit of a technical means to escape prosecution by, post-hoc,
sentences from other cause numbers for which his probation was to be revoked based on the crimes
committed under this cause number.
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pot-shotting the trial court’s calendar.” Austin v. State, 997 N.E.2d 1027, 1041
(Ind. 2013).
[10] When a defendant has a speedy trial motion pending, he cannot sit idly on his
hands:
A movant for an early trial must maintain a position which is
reasonably consistent with the request that he has made. It is
incumbent upon defendant to object at the earliest opportunity
when his trial date is scheduled beyond the time limits prescribed
by Ind. R.Crim. P. 4(B)(1). This requirement is enforced to
enable the trial court to reset the trial date within the proper time
period. A defendant who permits the court, without objection, to
set a trial date outside the 70-day limit is considered to have
waived any speedy trial request.
Hahn v. State, 67 N.E.3d 1071, 1080 (Ind. Ct. App. 2016) (internal citations and
quotations omitted). The same rule applies when a defendant allows the trial
court to set “an omnibus date, and by necessary implication, a trial date,
beyond the seventy day limit.” Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997),
reh’g denied. If the defendant does not object in such a circumstance, he has
waived his earlier speedy trial request. Id.[11] When we review Criminal Rule 4 claims, we review questions of law de novo,
Mefford v. State, 51 N.E.3d 327, 332 (Ind. Ct. App. 2016), and we review factual
findings of congestion or emergency for clear error. Austin, 997 N.E.2d at 1040.
Under this standard, we consider the probative evidence and reasonable
inferences supporting the judgment, without reweighing the evidence or
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assessing witness credibility, and reverse only if we are left with a firm
conviction that a mistake was made. Id.
[12] Here, the trial court did not enter written findings on the Motion for Discharge.
The CCS indicates simply: “Hearing is held on defendant’s Motion For
Discharge. Court orders defendant’s Motion For Discharge is DENIED.”
(Appellant’s App. Vol. 2 at 11) (italics removed). At the hearing on the Motion
for Discharge, the trial court explained:
The Court would note that Mr. Roper, when he appeared for
pretrial conference on August the . . . 27th of 2015, advised the
Court that he was attempting to retain private counsel. I note
that when he appeared in court on September 24th for pretrial
conference, he advised the Court that private counsel had been
retained the day before, consistent with his advice to the Court
on the 27th that he was attempting to hire private counsel. Would
note that Mr. Roper has demonstrated amply his ability to
communicate with the Court, lodge objections and make requests
of the Court on his own behalf, and that when he appeared in
court on August the 27th he did not object to the resetting of the
pretrial conference on September the 24th or any setting
thereafter. The Defendant’s Motion for Discharge is denied.
(Tr. at 43.) The record before us supports the trial court’s statements.
[13] Here, Roper requested a speedy trial at his initial hearing, but he made no effort
to object or otherwise bring any violation of that speedy trial request to the
court’s attention until after he was convicted in April 2016. He waffled about
whether he was going to retain counsel at his initial hearing, at his bail review
hearing, and at the hearing on August 27, 2015. That August 27, 2015, hearing
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was mere days before the time limit would expire on Roper’s speedy trial
request, and yet Roper did not object to the resetting of that hearing to a date
past his speedy-trial deadline. Furthermore, at the hearing following the
expiration of the seventy-day deadline, Roper signed a written Motion for
Continuance that included a waiver of his right to a speedy trial under Criminal
Rule 4. Roper’s conduct is inconsistent with a desire to have his case tried in a
speedy manner, and acted, in conjunction with his other actions, as a waiver of
his Criminal Rule 4(b) request. 10 See Goudy, 689 N.E.2d at 691 (defendant
waived right to speedy trial by failing to object to pre-trial hearing set outside
deadline).
Conclusion
[14] Roper waived his request for a speedy trial by conduct inconsistent with seeking
a speedy trial, and we accordingly affirm the trial court’s denial of his motion
for discharge.
[15] Affirmed.
Bailey, J., and Robb, J., concur.
10
Although we hold Roper's actions waived his right to a speedy trial, we note our concern that the trial
court neither addressed the merits of Roper's speedy trial motion when he made it at his initial hearing on
June 25, 2015, nor ruled on the State's August 7, 2015, motion to set Roper’s case for jury trial. While not
dispositive in this case, a more efficient internal system for identifying and addressing motions such as the
State's Motion to Set a Trial Date would serve to avoid confusion and ancillary litigation.
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