                                                                   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.




Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017                 Page 1 of 8
[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).


      Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017                         Page 2 of 8
      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.

      Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017                            Page 3 of 8
      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

      Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017                         Page 4 of 8
                                  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.

      Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017                       Page 5 of 8
       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


       Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017    Page 6 of 8
       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

       Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017     Page 7 of 8
       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.

       Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017                             Page 8 of 8
