                                                           FILED
                                                         Jan 18 2012, 8:34 am
FOR PUBLICATION
                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JASON W. BENNETT                              GREGORY F. ZOELLER
Bennett Boehning & Clary LLP                  Attorney General of Indiana
Lafayette, Indiana
                                              RYAN D. JOHANNINGSMEIER
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

COREY FLETCHER,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 79A02-1009-CR-1096
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                         The Honorable Randy J. Williams, Judge
                             Cause No. 79D01-0910-FA-25



                                   January 18, 2012


                             OPINION - FOR PUBLICATION


BROWN, Judge
       Corey Fletcher appeals the trial court’s denial of his motion for discharge under

Ind. Criminal Rule 4(B). Fletcher raises one issue which we revise and restate as whether

the trial court improperly denied his motion. We reverse.

       The relevant facts follow. On October 28, 2009, the State charged Fletcher with

conspiracy to manufacture methamphetamine as a class A felony, possession of

methamphetamine as a class B felony, and possession of precursors with intent to

manufacture methamphetamine as a class C felony. The State also alleged that Fletcher

was an habitual substance offender.

       On February 19, 2010, the court held an initial hearing at which Fletcher appeared

in person, and the court appointed a public defender. The court also scheduled a jury trial

for May 11, 2010. On February 26, 2010, the court appointed John Antalis as Special

Public Defender. On March 2, 2010, the court entered an order indicating that it was

advised that Antalis was unable to accept appointment as Special Public Defender and the

court appointed Timothy Broden to represent Fletcher. That same day, Fletcher filed a

pro se motion for fast and speedy trial. The motion stated: “Comes now defendant Corey

Fletcher, pro se[,] public defender not yet assigned respectfully request [sic] a fast and

speedy trial on the day of 2-29-2010.” Appellant’s Appendix at 36. An entry in the

chronological case summary (“CCS”) dated March 3, 2010, states: “The Court notes that

special Public Defender has previously been appointed. The Court affirms dates

previously set.    Copy to counsel.”   Id. at 9.   On March 5, 2010, Broden filed an

appearance form.



                                            2
       On March 15, 2010, the State filed a motion to strike Fletcher’s motion for fast

and speedy trial. The State argued that Fletcher was represented at the time that he filed

his motion. The court set the matter for a status hearing on the State’s motion to strike

Fletcher’s motion for March 26, 2010.         On March 26, 2010, the parties agreed to

schedule a hearing on the State’s motion to strike for April 9, 2010. The CCS does not

reflect a hearing on April 9, 2010. On April 19, 2010, the court held a status hearing and

scheduled the matter for a telephone status conference for April 20, 2010, and Fletcher’s

attorney “object[ed] to resetting trial date past the May 11, 2010 jury trial date.” Id. at 8.

       On May 12, 2010, Fletcher’s attorney filed a motion for discharge pursuant to Ind.

Criminal Rule 4(B). The motion stated that Fletcher “would show that more than seventy

(70) days have elapsed since the filing of [his] pro se Motion for Speedy Trial on March

2, 2010 and no trial of the above entitled cause has been conducted.” Id. at 55. On June

9, 2010, the court held a hearing on Fletcher’s motion for discharge and denied the

motion.

       After a trial, a jury found Fletcher guilty of conspiracy to manufacture

methamphetamine as a class A felony and possession of precursors with intent to

manufacture methamphetamine as a class C felony, but not guilty of possession of

methamphetamine. Fletcher waived a jury for the habitual offender phase, and the court

found that he was an habitual substance offender and habitual offender. The court

sentenced Fletcher to forty years for conspiracy to manufacture methamphetamine as a

class A felony. The court found that the charge of possession of precursors with intent to

manufacture methamphetamine as a class C felony merged with the charge of conspiracy,

                                              3
and sentenced Fletcher to thirty additional years for being an habitual offender. The

court suspended eight years of Fletcher’s sentence for an aggregate sentence of seventy

years with sixty-two years executed.

       The issue is whether the trial court improperly denied Fletcher’s motion for

discharge under Ind. Criminal Rule 4(B). We review de novo a trial court’s denial of a

motion to discharge a defendant. Kirby v. State, 774 N.E.2d 523, 530 (Ind. Ct. App.

2002), reh’g denied, trans. denied.      “The Sixth Amendment to the United States

Constitution and Article 1, section 12 of the Indiana Constitution guarantee the right to a

speedy trial. The provisions of Ind. Criminal Rule 4 implement these protections.”

Wilkins v. State, 901 N.E.2d 535, 537 (Ind. Ct. App. 2009) (citing Clark v. State, 659

N.E.2d 548, 551 (Ind. 1995)), trans. denied. Ind. Criminal Rule 4(B)(1) 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.

“The purpose served by Crim. R. 4(B) is to prevent a defendant from being detained in

jail for more than 70 days after requesting an early trial.” Williams v. State, 631 N.E.2d

485, 486 (Ind. 1994), reh’g denied. Restraint on liberty is one policy underlying Rule

4(B), but it is not the only policy. Poore v. State, 685 N.E.2d 36, 40 (Ind. 1997). “There

is also the anxiety and humiliation that can accompany public accusation.” Id. “These

considerations are unrelated to whether the accused is incarcerated on other grounds at

                                            4
the time the speedy trial is demanded.” Id. “Equally importantly, a prompt trial enables

a defendant to make his or her case before exculpatory evidence vanishes or becomes

stale.” Id.

       “The onus is on the State, not the defendant, to expedite prosecution.” Jackson v.

State, 663 N.E.2d 766, 769 (Ind. 1996). A defendant has no duty to bring himself to trial;

the State has that duty as well as the duty of insuring that the trial is consistent with due

process. Id. A movant for an early trial must maintain a position which is reasonably

consistent with the request that he has made. Wilburn v. State, 442 N.E.2d 1098, 1103

(Ind. 1982). “[I]t 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).”

Smith v. State, 477 N.E.2d 857, 861-862 (Ind. 1985). “This requirement is enforced to

enable the trial court to reset the trial date within the proper time period.” Dukes v. State,

661 N.E.2d 1263, 1266 (Ind. Ct. App. 1996). “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.” Stephenson v. State, 742 N.E.2d 463, 488 (Ind. 2001), cert.

denied, 534 U.S. 1105, 122 S. Ct. 905 (2002).

       Fletcher argues his counsel advocated for the motion at all appropriate times,

objected to continuing the trial, and timely filed a motion for discharge when the

permitted seventy days had elapsed. Fletcher acknowledges that the Indiana Supreme

Court has stated that “once counsel was appointed, Defendant spoke to the court through

counsel,” in Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000), reh’g denied, but

argues that the Court in Underwood “had no need to distinguish between ‘appointment’

                                              5
and ‘appearance,’ since none of the pro se pleadings in that case were filed in between

those two events.”     Appellant’s Brief at 10-11.      Fletcher also argues that because

“Underwood never draws, nor needed to draw, the distinction that language suggests,

citing it for that purpose would simply take it out of context.” Id. at 11. Fletcher argues

that “[f]orcing [him] to sit idly through incarceration while waiting for counsel to appear

and file a speedy-trial motion on his behalf would serve no useful purpose . . . .” Id. at 6.

Fletcher also argues that his counsel had not yet filed an appearance at the time that he

filed his motion for a fast and speedy trial and that “[t]he formal filing of an appearance

is not just a technicality – it is a substantive event that changes the parties’ rights and

obligations as the case progresses.” Id. at 10. Fletcher contends that “the purposes of

[Ind. Rule 4(B)] would be eviscerated if an indigent defendant must wait some

indeterminate amount of time for appointed counsel to appear, before a court will

acknowledge his bright-line right to be tried within 70 days of a written request.” Id. at

13.

       Fletcher relies upon Jackson v. State, 663 N.E.2d 766 (Ind. 1996).           Fletcher

acknowledges that in Jackson, “the pro se request was filed before the intitial hearing;

while here, it was filed after initial hearing and an order appointing counsel, but before

any attorney had actually appeared on Mr. Fletcher’s behalf.” Id. at 10. However,

Fletcher argues that this difference is immaterial. Lastly, Fletcher contends that his

motion for a fast and speedy trial was never struck.

       The State argues that Fletcher “had appointed counsel when he filed his pro se

speedy trial motion” and that “[a] represented defendant speaks to the court through his

                                             6
counsel, and a trial court is not required to respond to a defendant’s pro se request or

objection.” Appellee’s Brief at 6-7 (citing Underwood, 722 N.E.2d at 832). The State

argues that “[w]hen a defendant is represented by counsel, it is within the trial court’s

discretion to entertain or strike pro se motions.” Id. at 7 (citing Vance v. State, 620

N.E.2d 687, 689 (Ind. 1993)). The State cites Jenkins v. State, 809 N.E.2d 361 (Ind. Ct.

App. 2004), trans. denied, and argues that “this Court rejected Defendant’s argument that

a trial court cannot strike a pro se defendant’s filing when counsel has been appointed but

not yet appeared.”     Id.   The State also argues that Jackson, cited by Fletcher, is

distinguishable because the defendant in that case had filed a pro se speedy trial motion

before counsel was appointed. The State argues that “[n]o precedent requires that a court

must weigh ‘the usual evils’ – policy concerns – to determine whether to strike a pro se

motion from a represented defendant.”         Id. at 8.   The State argues that Fletcher’s

“characterization of trial counsel’s actions as ratifying the pro se motion is misleading”

because his counsel “actually agreed to continue for three weeks – from March 26 to

April 16 – the hearing on the State’s motion to strike.” Id. at 9. Lastly, the State

contends that “[a]lthough the trial court never used the word ‘strike’ in reference to

[Fletcher’s] pro se motion, the CCS entry and the court’s ruling at the discharge hearing

reveal that the trial court disregarded it and deemed it stricken.” Id. at 7.

       In his reply brief, Fletcher argues that the record does not reveal that his motion

for a speedy trial was ever struck. Fletcher argues that Jenkins is distinguishable and

“that the nominally-adverse language in Jenkins is not only dicta, but misreads Supreme

Court precedent and has undesirable policy implications.” Appellant’s Reply Brief at 5.

                                               7
In response to the State’s argument that Fletcher agreed to a continuance, Fletcher argues

that “there was never any continuance of either hearing.” Id. at 8.

       Initially, we will address the State’s argument that Fletcher did not maintain a

position reasonably consistent with his request for a speedy trial because his counsel

agreed to continue the hearing on the State’s motion to strike for the time period between

March 26 and April 16. The CCS entry dated March 17, 2010, reveals that the court

scheduled a status hearing for March 26, 2010 on the State’s motion to strike Fletcher’s

motion for fast and speedy trial. A CCS entry dated March 26, 2010, states: “The State

appears by Charles E. Osom and the defendant by Timothy P. Broden. By agreement of

the parties a hearing on the state’s motion to strike is now scheduled for April 9, 2010 at

8:30 am the defendant is to be present at hearing.” Appellant’s Appendix at 8. This

entry related to merely a status hearing and nothing in the entries suggests that a hearing

on the merits of the State’s motion to strike was to occur on March 26, 2010, or that the

parties agreed to continue any hearing on the merits. Based upon the CCS entries, we

cannot conclude that Fletcher requested a continuance.

       We now turn to the cases relied upon by the parties regarding whether Fletcher’s

pro se motion for fast and speedy trial was properly filed and begin with Jackson, which

was cited by Fletcher. In Jackson, as acknowledged by Fletcher and argued by the State,

the defendant filed his pro se motion for a speedy trial prior to the appearance of counsel.

663 N.E.2d at 768. Specifically, the defendant filed his motion on January 18, 1994, and

his counsel entered his appearance on February 11, 1994. Id. In reversing the denial of

the defendant’s motion for discharge, the Court observed that “Defendant’s counsel,

                                             8
appointed during February 1994, zealously attempted to get a trial date within the

seventy-day period,” and that the defendant engaged in no activity that might be

construed as waiver. Id. at 769.

       In Underwood, a post-conviction court granted Herbert Underwood’s motion for

summary judgment for post-conviction relief, vacated Underwood’s convictions, and

ordered a new trial. 722 N.E.2d at 831. On June 20, 1995, Underwood filed a pro se

motion for a fast and speedy trial. Id. On July 5, 1995, the trial court appointed counsel

to represent Underwood and set a retrial date for August 14, 1995 (a date within the

prescribed 70 days of Ind. Crim. Rule 4(B)). Id. On July 28, 1995, defense counsel

explained at a pre-hearing conference, over what Underwood claimed was his objection,

that he would not be adequately prepared for trial on August 14, 1995. Id. The trial court

stated that Underwood’s right to counsel was more fundamental than the right to a speedy

trial and rescheduled Underwood’s retrial for March 18, 1996. Id. On February 23,

1996, Underwood, again acting pro se but still represented by counsel, filed a “motion to

dismiss all charges” on grounds that his right to speedy trial had been violated, which the

court later denied. Id.    On February 28, 1996, defense counsel filed a motion for

continuance on grounds that he had to prepare and try other capital cases, and the court

granted counsel’s request. Id.

       On March 1, 1996, Underwood submitted a written letter to the court, reiterating

his right to a speedy trial. Id. On April 19, 1996, defense counsel filed a memorandum

of law requesting a continuance of retrial on grounds that it was necessary for effective

assistance of counsel. Id. On June 13, 1996, Underwood, by defense counsel, filed

                                            9
another motion to continue retrial, or in the alternative, a motion to exclude the testimony

of the co-defendant in Underwood’s first trial.       Id.   On June 14, 1996, the court

rescheduled the trial for a second time, setting the retrial date for August 19, 1996. Id.

Underwood was ultimately convicted of murder. Id.

        On appeal, Underwood argued that the trial court violated his statutory right to a

speedy trial under Indiana Criminal Rule 4(B) when it failed to retry him within seventy

days of June 20, 1995, the date he filed a pro se motion for a speedy trial. Id. The Court

held:

        In the present case, the trial court was required to appoint new counsel for
        Defendant after he was granted post-conviction relief. It may be that
        Defendant sought a speedy trial on a pro se basis prior to counsel’s
        appointment and objected to counsel’s request for a continuance. But once
        counsel was appointed, Defendant spoke to the court through counsel. The
        trial court was not required to respond to Defendant’s request or objection.
        See Broome v. State, 687 N.E.2d 590, 594 (Ind. Ct. App. 1997) (citing
        Kindred v. State, 521 N.E.2d 320, 325 (Ind. 1988); Bradberry v. State, 266
        Ind. 530, 537, 364 N.E.2d 1183, 1187 (1977)), summarily affirmed in
        relevant part, 694 N.E.2d 280 (Ind. 1998). To require the trial court to
        respond to both Defendant and counsel would effectively create a hybrid
        representation to which Defendant is not entitled.

Id. at 832.

        In Jenkins, the State charged Derrick Jenkins with possession of cocaine and with

being an habitual substance offender. 809 N.E.2d at 365. At the initial hearing on

October 22, 2001, the trial court appointed Mark Jones of the Wayne County Public

Defender’s Office and his partner, John Dorenbusch, to represent Jenkins. Id. Trial was

set for February 25, 2002. Id. During the pre-trial conference on January 30, 2002,

defense counsel requested a continuance of the trial date. Id. The court granted that


                                            10
request and reset the trial for April 29, 2002. Id. Jones and Dorenbusch filed a motion to

withdraw, which the court granted on June 28, 2002. Id. at 365-366. That same day, the

court appointed Jeffrey Arnold to represent Jenkins. Id. at 366.

       On July 15, 2002, Jenkins filed a pro se motion for early trial. Id. The trial court

refused the motion because Jenkins was represented by counsel. Id. Two days later,

attorney Arnold filed his written appearance. Id. On August 2, 2002, Jenkins again filed

a pro se motion for early trial, which the court also refused. Id. During a September 18,

2002 pre-trial conference, attorney Arnold orally moved for a continuance of the trial. Id.

In a written motion for continuance, filed on September 23, 2002, attorney Arnold stated

that he was seeking the continuance on behalf of his client to secure information which

might be “vital to his defense.” Id. The motion further indicated that Jenkins had

authorized attorney Arnold to request the continuance. Id. On September 26, 2002, the

trial court rescheduled Jenkins’s trial for March 3, 2003. Id.

       On October 23, 2002, attorney Dale Arnett filed a written appearance on behalf of

Jenkins. Id. Thereafter, attorney Arnold made a request to withdraw, which the court

granted on November 15, 2002. Id. On February 21, 2003, attorney Arnett filed a

motion for discharge pursuant to Criminal Rule 4(B) and Article 1, Section 13 of the

Indiana Constitution. Id. In his memorandum in support of the motion, attorney Arnett

contended that Jenkins had properly asserted his early trial right through his pro se

motions of July 15, 2002, and August 2, 2002. Id. Attorney Arnett further argued that

although Jenkins was represented by counsel at the time, he was entitled to file the pro se

motions because of the guarantee to be heard by himself in Article 1, Section 13. Id.

                                             11
Following a pre-trial conference held on February 26, 2003, the trial court denied that

motion. Id. A jury found Jenkins guilty as charged. Id.

       On appeal, this court addressed whether Jenkins’s pro se early trial motions

triggered the time limits of Criminal Rule 4(B). Id. at 367. The court observed that

“Jenkins attempted to file his first request for an early trial a couple of weeks after his

first court-appointed attorneys were allowed to withdraw and two days before attorney

Arnold, his second court-appointed attorney, filed his appearance with the court.” Id.

The court observed that “while attorney Arnold had not yet filed his written appearance

with the court, he had been appointed as attorney for Jenkins by the court’s order of June

28, 2002.” Id. The court noted that “[i]t further appears that the trial court mailed a copy

of its order that same day both to attorney Arnold and Jenkins.” Id. at 367 n.2. The court

stated: “Our supreme court has stated that ‘once counsel [is] appointed, [a d]efendant

sp[eaks] to the court through counsel.’” Id. at 367 (quoting Underwood, 722 N.E.2d at

832). The court held that “[a]s 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.

The court also observed that Jenkins never expressly asserted his right to proceed pro se

and seemingly accepted the appointment of his second attorney, who indicated in the

motion for continuance that Jenkins had given his authorization for that filing. Id. at 367.

The court concluded that Jenkins did not clearly and unequivocally assert his right to self-

representation. Id. at 367-368.

       To the extent that the State relies upon the language in Underwood that “once

counsel was appointed, Defendant spoke to the court through counsel,” we acknowledge

                                            12
that this language may suggest that appointment is the relevant time period for

determining whether a defendant may file a pro se motion for a speedy trial.1 However,

Underwood was addressing a situation in which counsel filed motions to continue

following the defendant’s pro se motion for a speedy trial. Further, the issue of a

distinction between the time a court appoints an attorney and the time an attorney files an

appearance was not at issue. Accordingly, we disagree 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.

        We also find Jenkins and Underwood distinguishable. Initially, we observe that

the trial court in Jenkins “refused [Jenkins’s pro se motion for early trial] for filing

because Jenkins was represented by counsel.” 809 N.E.2d at 366. Here, the State filed a

motion to strike Fletcher’s motion for fast and speedy trial on March 15, 2010, but the

record does not reveal that the court ever explicitly struck Fletcher’s motion. Further,

unlike in Jenkins and Underwood, where the attorneys filed a motion for continuance

following the motion for a speedy trial, Fletcher’s attorney objected during the April 19,

2010 status hearing “to resetting trial date past the May 11, 2010 jury trial date,” which

was seventy days after Fletcher’s pro se motion for fast and speedy trial. Appellant’s

Appendix at 8. Also, Fletcher’s attorney filed a motion for discharge pursuant to Ind.

Criminal Rule 4(B) on May 12, 2010. Thus, Fletcher’s attorney effectively affirmed


        1
          To the extent the State cites Edwards v. State, 902 N.E.2d 821 (Ind. 2009), for the proposition
that the Court “affirmed the importance of counsel’s appointment as the critical event for determining
when a trial court may strike a pro se defendant’s filing,” Appellee’s Brief at 7-8, we observe that the
Court in Edwards did not address the time when counsel is appointed and when counsel files an
appearance. Thus, we do not find Edwards instructive.

                                                   13
Fletcher’s request. Under the circumstances, we conclude that trial court improperly

denied Fletcher’s motion for discharge.

       For the foregoing reasons, we reverse the trial court’s denial of Fletcher’s motion

for discharge.

       Reversed.

BAILEY, J., concurs.

FRIEDLANDER, J., dissents with separate opinion.




                                           14
                              IN THE
                    COURT OF APPEALS OF INDIANA

COREY FLETCHER,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 79A02-1009-CR-1096
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


FRIEDLANDER, Judge, dissenting


       I believe the trial court properly denied Fletcher’s Criminal Rule 4(B) motion for

discharge and therefore respectfully dissent.

       The basis of my disagreement centers upon the Majority’s interpretation of

Jenkins v. State, 809 N.E.2d 361 (Ind. Ct. App. 2004), trans. denied, and its rejection of

Jenkins to the extent that Jenkins provides authority for the trial court’s denial of

Fletcher’s motion for discharge. The Majority indicates that certain language in our

Supreme Court’s decision in Underwood v. State, 722 N.E.2d 828 (Ind. 2000), as cited

and discussed in Jenkins, “may suggest” that appointment of counsel, not counsel’s entry

of an appearance, is the relevant time for purposes of determining whether a defendant



                                            15
may file a pro se motion for speedy trial. Slip op. at 13. I interpret Jenkins to hold that

the Underwood language means precisely that, and I agree with Jenkins in this respect.

       As explained in Jenkins, for purposes of a pro se Crim. R. 4(B) motion to dismiss,

a defendant’s representation may take one of three forms: pro se, representation by

counsel, and hybrid representation. A pro se defendant clearly may speak for himself or

herself via a motion for speedy trial and therefore such a motion is valid. As to the latter

two alternatives, the court noted that by failing to “clearly and unequivocally assert his

right to self-representation” when the court appointed counsel to represent him, Jenkins

acquiesced in counsel’s presentation of the defense. Jenkins v. State, 809 N.E.2d at 367.

The court stated that a “clear and unequivocal” request for self-representation in this

context would require an objection to the appointment of counsel by Jenkins. Id. The

court held that, following the appointment of counsel, Jenkins would similarly be

required to clearly and unequivocally indicate his wish to proceed via the third form, i.e.,

by hybrid representation, and that “filing … pro se motions did not amount to a request to

proceed with hybrid representation.” Id. at 368. Thus, the court concluded, because

“Jenkins did not adequately assert his right to self-representation or desire to proceed

with hybrid representation, he was entitled only to be heard through his attorney[.]” Id.

       In the instant case, Fletcher did not clearly and unequivocally object to the

appointment of counsel and thus to proceed pro se.           Neither did he clearly and

unequivocally express a wish to proceed with hybrid representation.             This leads

inescapably to the conclusion that Fletcher acquiesced in representation by appointed

counsel. To paraphrase the Jenkins court’s conclusion on this issue, because “counsel

                                            16
had been appointed before [Fletcher] filed … his early trial motion[], the court was not

required to accept the motion[] for filing”, much less grant it. Id. at 367. I would affirm

the trial court in all respects.




                                            17
