MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Dec 28 2017, 6:58 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                      Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Antuan Harney,                                          December 28, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1705-CR-1145
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Shatrese M.
Appellee-Plaintiff                                      Flowers, Judge
                                                        The Honorable James Kevin
                                                        Snyder, Commissioner
                                                        Trial Court Cause No.
                                                        49G20-1509-F2-31979



Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017      Page 1 of 7
                                             Case Summary
[1]   Antuan Harney appeals the trial court’s denial of his motion for discharge

      pursuant to Indiana Criminal Rule 4(B). On appeal, he argues that the trial

      court abused its discretion in striking his pro se speedy trial motion and

      committed clear error in denying his motion for discharge. Finding no abuse of

      discretion or clear error, we affirm.


                                 Facts and Procedural History
[2]   On September 9, 2015, the State charged Harney with level 2 felony dealing in

      a narcotic drug, level 2 felony dealing in cocaine, level 3 felony possession of a

      narcotic drug, level 4 felony possession of cocaine, level 6 felony maintaining a

      common nuisance, and class B misdemeanor possession of marijuana. Harney

      was arrested and taken into custody on September 21, 2015. Harney retained

      attorney Timothy Burns as his trial counsel, and Burns filed his appearance on

      September 23, 2015. At the initial hearing held that same date, the trial court

      set a trial date of February 9, 2016.


[3]   Burns filed a motion to withdraw his appearance on November 24, 2015,

      stating that Harney “was incarcerated and unable to pay an attorney fee” and

      was “in need of a public defender.” Appellant’s App. Vol. 2 at 40. The trial

      court set a hearing on counsel’s motion to withdraw for December 7, 2015.

      Meanwhile, on December 3, 2015, Harney filed a pro se letter with the trial

      court in which he requested a “fast and speedy trial under rule 4(B).” Id. at 44.

      On December 4, the trial court entered an order striking Harney’s pro se


      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017   Page 2 of 7
      “Motion for Fast and Speedy Trial,” noting that Harney was represented by

      counsel and that the court “does not recognize motions made by non-attorney

      of record.” Id. at 45. At the hearing on Burns’s motion to withdraw on

      December 7, Harney appeared and informed the trial court that he needed the

      services of a public defender. The trial court appointed public defender Kyle

      Cassidy to represent Harney, and Cassidy filed his appearance on that date.


[4]   On February 3, 2016, the trial court held a final pretrial conference. During

      that hearing, the State moved to continue the trial date. Over Harney’s

      objection, the trial court granted the motion for continuance and reset the trial

      date for April 5, 2016. In March 2016, a third attorney, Dana Childress-Jones,

      filed an appearance on Harney’s behalf. Then, on March 23, Harney filed a

      motion for discharge pursuant to Indiana Criminal Rule 4(B). Following a

      hearing, the trial court denied the motion. Harney filed a motion for

      certification of interlocutory appeal and an emergency motion for immediate

      release pursuant to Indiana Criminal Rule 4(A).1 The trial court granted

      Harney’s Criminal Rule 4(A) motion, and he was released from custody on

      March 31, 2016. The trial court denied the motion for certification of

      interlocutory appeal on the Criminal Rule 4(B) motion for discharge as moot.




      1
        The trial court concluded that Harney had been in continuous custody from the date of his arrest on
      September 21, 2015, through March 31, 2016, in violation of Criminal Rule 4(A) which provides in relevant
      part that “[n]o defendant shall be detained in jail on a charge, without a trial, for a period in aggregate
      embracing more than six (6) months from the date the criminal charge against such defendant is filed, or
      from the date of his arrest on such charge (whichever is later) ….”

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017         Page 3 of 7
[5]   Harney’s level 6 felony charge was later dismissed, and a jury trial was held on

      March 2, 2017. The jury found Harney guilty of level 2 felony dealing in a

      narcotic drug, level 3 felony possession of cocaine, level 4 felony possession of

      cocaine, and class B misdemeanor possession of marijuana. The trial court

      sentenced Harney to an aggregate term of twelve years, with three years to be

      served in the Department of Correction, five years to be served in community

      corrections, and four years suspended.


                                     Discussion and Decision
[6]   This appeal involves motions filed by Harney pursuant to Indiana Criminal

      Rule 4(B). Our supreme court has explained,


              The broad goal of Indiana’s Criminal Rule 4 is to provide
              functionality to a criminal defendant’s fundamental and
              constitutionally protected right to a speedy trial. It places an
              affirmative duty on the State to bring the defendant to trial, but at
              the same time is not intended to be a mechanism for providing
              defendants a technical means to escape prosecution.


              Subsection B of Criminal Rule 4 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.” Ind.
              Crim. Rule 4(B)(1). Exceptions to this requirement include where
              the defendant seeks a continuance or the delay is otherwise the
              result of the defendant’s conduct, “or where there was not
              sufficient time to try him during such seventy (70) calendar days
              because of the congestion of the court calendar.” Crim. R.
              4(B)(1).


      Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013) (some citations omitted).
      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017   Page 4 of 7
            Section 1 – The trial court did not abuse its discretion in
                  striking Harney’s pro se speedy trial motion.
[7]   We first address the trial court’s decision to strike Harney’s pro se speedy trial

      motion. The trial court struck Harney’s pro se motion because he was

      represented by counsel at all relevant times. Harney asserts that the trial court

      abused its discretion in doing so. We disagree.


[8]   When a defendant is represented by an attorney and attempts to file a pro se

      motion, it is “within the trial court’s discretion to accept and respond to it or to

      strike it.” Kindred v. State, 521 N.E.2d 320, 325 (Ind. 1988); see Ind. Trial Rule

      11. Indeed, it is well settled that once “counsel is appointed, a criminal

      defendant speaks to the court through his or her attorney.” Schepers v. State, 980

      N.E.2d 883, 886 (Ind. Ct. App. 2012). A request to proceed pro se is a waiver

      of the right to counsel. Id. Consequently, there are several requirements to

      successfully invoke the right of self-representation. Id. Specifically, “the

      defendant must make a ‘clear and unequivocal’ request within a reasonable

      time prior to trial.” Id. (quoting Stroud v. State, 809 N.E.2d 274, 279 (Ind.

      2004)). Also, a defendant’s choice must be knowing, intelligent, and voluntary.

      Id.


[9]   The record indicates that attorney Burns filed an appearance as Harney’s trial

      counsel on September 23, 2015. On November 24, 2015, Burns filed a motion

      to withdraw his appearance. The trial court set a hearing on the motion for

      December 7, 2015. On December 3, 2015, Harney sent a pro se letter to the

      trial court requesting a speedy trial under Criminal Rule 4(B). On December 4,

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017   Page 5 of 7
       the trial court entered an order striking the pro se motion, noting that Harney

       was represented by counsel. Following the hearing on December 7, 2015, the

       trial court granted Burns’s motion to withdraw and appointed attorney Kyle

       Cassidy. At no relevant time was Harney unrepresented by counsel, nor did he

       ever unequivocally invoke his right of self-representation.2


[10]   Harney concedes that the trial court clearly had the discretion to strike his pro

       se speedy trial motion under the circumstances but that the question remains as

       to “whether the trial court should have struck the motion.” Reply Br. at 4.

       This is merely a request for us to reweigh the evidence, which we will not do.

       The trial court did not abuse its discretion.


             Section 2 – The trial court did not clearly err in denying
                         Harney’s motion for discharge.
[11]   We next address the trial court’s denial of Harney’s motion for discharge

       pursuant to Criminal Rule 4(B). Appellate review of a trial court’s denial of a

       Criminal Rule 4(B) motion for discharge is only for clear error. Austin, 997

       N.E.2d at 1040. This Court neither reweighs the evidence nor determines the

       credibility of witnesses. Id. “We consider only the probative evidence and

       reasonable inferences supporting the judgment and reverse only on a showing



       2
         Both Harney and the State question why the trial court’s December 4 order striking Harney’s pro se motion
       and referencing the appointment of new counsel was apparently not served on the parties or entered into the
       chronological case summary until December 14, 2015. The State suggests a typographical error regarding the
       date, while Harney suggests lack of diligence or “confusion” on the trial court’s part. Appellant’s Br. at 19.
       Regardless, we agree with the State that any “irregularities” in the trial court’s order do not change the fact
       that Harney was represented by counsel at all relevant times and at no time did he unequivocally invoke his
       right of self-representation.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017           Page 6 of 7
       of clear error. Clear error is that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (citation omitted).


[12]   As we concluded above, the trial court did not abuse its discretion in striking

       Harney’s pro se speedy trial motion. Thus, at the time Harney’s counsel filed a

       motion for discharge on March 30, 2016, there was no speedy trial motion

       pending. In denying the motion for discharge, the trial court noted that Harney

       was represented by counsel when he attempted to file the pro se motion for

       speedy trial. Because Harney did not properly request an early trial pursuant to

       Criminal Rule 4(B), the trial court did not clearly err in denying his motion for

       discharge. See Jenkins v. State, 809 N.E.2d 361, 368 (Ind. Ct. App. 2004), trans.

       denied. The trial court’s rulings are affirmed.


[13]   Affirmed.


       Robb, J., and Bradford, J., concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017   Page 7 of 7
