Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any       Jul 31 2014, 9:53 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARLON D. McKNIGHT                               GREGORY F. ZOELLER
Michigan City, Indiana                           Attorney General of Indiana

                                                 GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MARLON D. McKNIGHT,                              )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 20A03-1308-PC-333
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                     Cause No. 20D03-1207-PC-66 & 20D03-0802-FA-6


                                       July 31, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Defendant, Marlon McKnight (McKnight), appeals the post-conviction

court’s denial of his petition for post-conviction relief.

       We affirm.

                                            ISSUE

       McKnight raises one issue on appeal which we restate as: Whether McKnight was

denied effective assistance of appellate counsel.

                         FACTS AND PROCEDURAL HISTORY

       On February 4, 2008, the State filed an Information charging McKnight with two

Counts, dealing in cocaine as Class A felonies, and one Count, dealing in cocaine as a Class

B felony. The trial court set the initial pre-trial conference for February 8, 2008, and on that

day, the trial court appointed a public defender to represent McKnight. On March 6, 2008,

McKnight dismissed the public defender, his private attorney entered an appearance, and

the trial court set the pre-trial conference for May 1, 2008, with the delay being charged to

McKnight for purposes of Indiana Criminal Rule 4(C). On May 1, 2008, the trial court reset

the pre-trial conference for May 22, 2008, at McKnight’s request. On May 21, 2008,

McKnight requested another continuance, and the trial court rescheduled the matter for June

5, 2008. On June 5, July 17, and July 30, 2008, McKnight requested additional continuances

and agreed that the delays would be charged to him in accordance with Crim. R. 4(C).

       On August 21, 2008, the trial court held a pre-trial conference where McKnight’s

attorney was present but McKnight failed to appear. As a result, McKnight’s counsel sought

an additional continuance and the pre-trial conference was set for September 25, 2008, with

                                               2
the delay charged to McKnight. When the cause came up on September 25, both parties

agreed on April 20, 2009, as the jury trial date. Unfortunately, McKnight’s matter did not

proceed on April 20 due to court congestion. On April 30, 2009, the parties convened and

agreed to a new trial date set for November 30, 2009.

       However, on July 9, 2009, McKnight’s counsel filed a motion for discharge claiming

that the trial setting of November 30 violated Crim. R. 4(C). The trial court subsequently

denied that motion. In August 2009, McKnight dismissed his counsel, and on August 24,

2009, McKnight filed a motion to proceed pro se. A hearing for that motion was set for

September 3, 2009. A day before the hearing, McKnight filed a motion for continuance and

the matter was reset for September 10, 2009. On September 10, the trial court granted

McKnight’s motion to proceed pro se, and on the same day, McKnight filed a motion for

discharge pursuant to Crim. R. 4(C). On October 15, 2009, the trial court heard the motion

but denied McKnight’s request for discharge.

       After several continuances, and the filing of McKnight’s numerous motions, the trial

court eventually set the jury trial for March 8, 2010. A two day jury trial was conducted on

March 8 and March 10, 2010. At the close of the evidence, the jury found McKnight guilty

on all three Counts. On April 29, 2010, the trial court sentenced him to concurrent sentences

of forty years each, for the two Class A felonies, and fifteen years for the Class B felony

offense. All sentences were to run concurrently. On direct appeal, this court affirmed

McKnight’s conviction. See McKnight v. State, No. 20A05-1005-CR-357, (Ind. Ct. App.

May 31, 2011), trans. denied.



                                             3
       On July 11, 2012, McKnight filed a pro se petition for post-conviction relief,

claiming he received ineffective assistance of appellate counsel based on the fact that the

appellate counsel did not challenge the trial court’s denial of his motion for discharge under

Crim. R. 4(C) on his direct appeal. On February 20, and May 28, 2013, the post-conviction

court held evidentiary hearings on McKnight’s petition. On August 1, 2013, the post-

conviction court issued findings of fact and conclusion of law denying McKnight’s petition.

       McKnight now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                                        I. Standard of Review

       Under the rules of post-conviction relief, the petitioner must establish the grounds

for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Strowmatt

v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on appeal from the

denial of relief, the post-conviction petitioner must show that the evidence is without

conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the

post-conviction court. Id. at 975. The purpose of post-conviction relief is not to provide a

substitute for direct appeal, but to provide a means for raising issues not known or available

to the defendant at the time of the original appeal. Id. If an issue was available on direct

appeal but not litigated, it is waived. Id.

                                II. Ineffective Assistance of Counsel

       McKnight argues that his appellate counsel rendered ineffective assistance because

she failed to argue in the direct appeal that the trial court erred in denying his pro se motion

for discharge pursuant to Crim. R. 4(C).

                                               4
       Because the strategic decision regarding which issues to raise on appeal is one of the

most important decisions to be made by appellate counsel, appellate counsel’s failure to

raise a specific issue on direct appeal rarely constitutes ineffective assistance. See Taylor

v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana supreme court has adopted a two-part

test to evaluate the deficiency prong of these claims: (1) whether the unraised issues are

significant and obvious from the face of the record; and (2) whether the unraised issues are

“clearly stronger” than the raised issues. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997),

cert. denied, 525 U.S. 1021 (1998). If this analysis demonstrates deficient performance by

counsel, the court then examines whether the issues that appellate counsel failed to raise

“would have been clearly more likely to result in reversal or an order for a new trial.” Id.

       Crim. R. 4(C) sets forth the time limits in which a defendant must be brought to trial

and provides in relevant part that

       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 by his act, or where there was not sufficient time to try him during such
       period because congestion of the court calendar.

       Under this rule, the State has an affirmative duty to bring the defendant to trial within

one year of being charged or arrested, but extensions are allowed for various reasons. Cook

v. State, 810 N.E.2d 1064, 1065 (Ind. 2004). For instance, “[i]f a delay is caused by the

defendant’s own motion or action, the one-year time limit is extended accordingly.” Frisbie

v. State, 687 N.E.2d 1215, 1217 (Ind. Ct. App. 1997), trans. denied. A defendant has no

obligation to remind the trial court of the State’s duty, nor is he required to take any


                                               5
affirmative action to see that he is brought to trial within the statutory time period. State v.

Smith, 495 N.E.2d 539, 541 (Ind. Ct. App.1986). Nevertheless, a defendant waives his right

to a speedy trial if the defendant is aware or should be aware of the fact that the trial court

has set a trial date beyond the applicable time limitation, and the defendant does not object

to the trial date. Blair v. State, 877 N.E.2d 1225, 1232 (Ind. Ct. App. 2007), trans. denied.

       A determination of whether Crim. R. 4(C)’s one-year timeframe has been violated

requires various considerations. First, the court must determine what date marks the

beginning and end of the one-year timeframe. The one-year period commences with the

date of the defendant’s arrest or the filing of the charging information, whichever is later.

See Crim. R. 4(C).

       In the instant case, we note that McKnight was charged on February 4, 2008;

therefore, his one-year timeframe would have expired on February 4, 2009. As stated in

Frisbie, 687 N.E. 2d at 1217, “[I]f a delay is caused by the defendant’s own motion or

action, the one-year time limit is extended accordingly.” The record reveals that McKnight

was responsible for the delay starting from March 6, 2008. The delay was extended to May

1, May 21, June 5, July 17, July 30, August 21, and September 25, 2008. In all, McKnight

requested seven continuances between March 6 and September 25, 2008. Thus, it is

apparent that the 203 days of delay from March 6 to September 25, 2008, were attributable

to McKnight for Crim. R. 4(C) purposes. Accordingly, the new deadline was extended by

203 days from February 2009 to August 2009.

       As for late trial setting dates, the record reveals that on September 25, 2008, both

parties settled on April 20, 2009, as the trial date. However, the trial court vacated that trial

                                               6
setting due to court congestion. On April 30, 2009, both parties agreed on November 30,

2009 as the new trial date. In essence, the November 30 trial date was outside the one-year

timeframe. As noted in the foregoing, a defendant waives his right to a speedy trial if the

defendant is aware or should be aware of the fact that the trial court has set a trial date

beyond the applicable time limitation, and the defendant does not object to the trial date.

See Blair, 877 N.E.2d at 1232. Instead of objecting to the November 30 trial setting,

McKnight agreed to a setting outside the one-year timeframe, and by that fact, he acquiesced

to the delay and waived his right to be discharged under Crim. R. 4(C).

       In light of the foregoing, we find that McKnight has not demonstrated that but for

his appellate counsel’s alleged error, there is a reasonable probability that the result of the

proceeding would have been different. See McCary v. State, 761 N.E.2d 389, 392 (Ind.

2002) (holding that a petitioner must show a reasonable probability that but for counsel’s

errors the result of the proceeding would have been different.). Moreover, McKnight has

not demonstrated that the Crim. R. 4 (C) issue was “clearly stronger” than the issues raised

by his appellate counsel. See Bieghler, 690 N.E.2d at 194. Had McKnight felt that he

needed to obtain a trial within the parameters of Crim. R. 4 (C), he would not have sought

numerous continuances, or acquiesced to the November 30 trial setting. Therefore, it was

reasonable for the appellate counsel not to raise that issue on McKnight’s direct appeal.

       That said, we find that McKnight has failed to show that his appellate counsel’s

performance was deficient or that he was prejudiced as a result of counsel’s performance,

thus defeating his claim of ineffective assistance of counsel.

                                       CONCLUSION

                                              7
      In conclusion, we find that McKnight did not establish ineffective assistance of

appellate counsel.

      Affirmed.

ROBB, J. and BRADFORD, J. concur




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