MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Jun 19 2020, 9:29 am
court except for the purpose of establishing
                                                                                    CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Decharla K. Boatman,                                     June 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2934
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1811-F6-41621



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020                     Page 1 of 12
                                             Case Summary
[1]   Following a jury trial, Decharla Boatman was convicted of Level 6 felony

      criminal recklessness and Class A misdemeanor battery. She asserts that the

      trial court abused its discretion when it denied her request for a continuance on

      the morning of trial and that, as a result of the denial, she was denied her Sixth

      Amendment right to counsel.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Boatman and D.W. have a minor child together. On August 12, 2018,

      Boatman went to a restaurant to meet D.W. and D.W.’s father (Grandfather),

      who had been helping to transport the child for visits. They were meeting to

      discuss visitation and transportation issues. Boatman sat at a table across from

      D.W. and Grandfather. At some point, Boatman became angry and slapped

      D.W. in the face. She also, while standing, reached into a purse or backpack,

      pulled out a loaded handgun, and began to raise it. Grandfather grabbed

      Boatman’s hands, pointed them upward, and was able to remove the weapon

      from her grasp. Boatman begged Grandfather to return it to her, but he refused.

      Boatman left the restaurant, and police were called to the location.


[4]   On November 28, 2018, the State charged Boatman with Level 6 felony

      pointing a firearm, Level 6 felony criminal recklessness, and Class A

      misdemeanor battery. Boatman appeared at the February 7, 2019 initial

      hearing, and the court ordered a public defender to represent her. The next day,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020   Page 2 of 12
      attorney Scott Gill of the Marion County Public Defender Agency filed his

      appearance on her behalf.


[5]   Boatman failed to appear for the first pre-trial conference on March 4. The

      court took under advisement the issuance of a bench warrant and re-set the

      matter for March 7, and Boatman appeared for that hearing. When Boatman

      failed to appear at an April 1 pretrial conference, a warrant was issued but was

      recalled the same day, and the matter was re-set for a later date in April.

      Thereafter, Boatman appeared late for a July 1 pretrial conference.


[6]   On August 12, Omar Ghani of the Marion County Public Defender Agency

      filed his appearance on Boatman’s behalf.1 At a September 16, 2019 pretrial

      conference, the case was set for trial on Wednesday, November 6, with the final

      pretrial on Monday, November 4. At the final pretrial hearing, Ghani

      responded affirmatively to the court that the defense was ready to proceed to

      trial on November 6, as did the State. The intervening day between the final

      pretrial and trial, Tuesday, November 5, was Election Day, a holiday.


[7]   At 5:16 p.m. on November 4, after the final pretrial hearing, private attorneys

      Tom F. Hirschauer III and Kyle Swick filed their appearance on behalf of

      Boatman. At 5:56 p.m. that day, Hirschauer filed a motion to continue the jury

      trial. The motion stated, “Due to being recently retained, Counsel and all other




      1
          It appears attorney Gill remained on record as counsel for Boatman as well.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020     Page 3 of 12
      attorneys at Keffer Hirschauer LLP have conflicts during the time of the Jury

      Trial.” Appellant’s Appendix at 124.


[8]   On the morning of November 6, the jury trial was called to order at 8:51 a.m.

      Boatman, who had been ordered to appear for trial at 8:30 a.m., was not

      present, nor was Hirschauer, although an unnamed attorney from his office

      was, explaining that Hirschauer was in Johnson County at an all-day jury trial.

      The trial court stated that the case, pending since 2018, had been confirmed two

      days prior for jury trial, and “I am not granting a continuance[.]” Transcript at

      4. The court directed unnamed counsel to find Boatman and get her to court

      immediately and also directed that the appointed public defender, whose

      appearance had not been withdrawn, come to court for trial. The court briefly

      recessed and reconvened at 9:32 a.m., at which time the trial court advised

      Boatman, now present, as follows:


              Ms. Boatman, you are going to trial today. You have the choice
              of having the lawyer that you just hired, but it’s somebody in his
              office[.] . . . You cannot hire an attorney at the very last second.
              You came to court on Monday. It was set for a final pretrial, and
              you, through your attorney, said, ready. So you are going to trial
              with your public defender. You can have two options. You can
              have the lawyer sit with the public defender or they can return
              the money and you will go with the public defender, but you are
              going to trial today.


      Id. at 5. The unnamed attorney stated that, after having spoken with Boatman,

      the Hirschauer firm was orally moving to withdraw, and the trial court granted

      the motion.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020   Page 4 of 12
[9]    Thereafter, Ghani and co-counsel Chris Collman, 2 who were now present in

       court, engaged in a lengthy dialogue with the trial court, expressing that they

       were not prepared to go to jury trial that day and desired a continuance. They

       explained that on or near the November 4 pretrial, they had divided trial

       preparation duties between them, intending to do the trial prep on the

       November 5 Election Day holiday, but that when they received e-notice on

       November 4 that Hirschauer’s firm had filed an appearance, they believed that

       the case was now being handled by private counsel and they could not speak

       with Boatman. Id. at 8. Therefore, they explained, they did not do any work

       on the case on November 5. The trial court asked Collman and Ghani whether

       they had spoken to or given the case file to private counsel, and they replied

       that they had not. The court stated that it was denying any continuance,

       advising, “When people say ‘ready’, I expect . . . that the case is ready for trial. .

       . . That’s why I set a final pretrial so close to the jury date.” Id. at 8. Collman

       noted, “Ms. Boatman elected to hire private counsel and she should have that

       right[,]” to which the court replied, “And she would have to do it not the

       evening before the trial after it’s set for jury.” Id. at 13.


[10]   Ghani and Collman urged that by not allowing a continuance, the court was

       violating Boatman’s Sixth Amendment right to effective counsel, and they

       asked to make a record, which the trial court permitted but first stated:




       2
        The record reflects that Collman, also with the Marion County Defender Agency, had agreed on or around
       November 4 that he would “sit as second chair” for trial. Transcript at 8.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020               Page 5 of 12
               Hold on. I’m going to make the record as to what the Court sees
               and then I’ll let you respond. This case has been set since
               February of 2019. I think it’s a 2018 case. . . . The Public
               Defender continuously represented her. I never had a motion to
               withdraw. I understand that after court was closed on Monday
               [November 4], after the final pretrial where the parties, both
               parties, including the Defendant, said that they were ready for
               trial and yesterday was an election day. The courts were closed.
               Motions in limines were done. Final witnesses were done. And
               discovery was completed by the Defense. Private lawyer put his
               appearance in at 5:00 p.m. No one notified me, . . . I have access
               to court email[.] . . . [T]he Public Defender never even gave the
               discovery to the private lawyer and the private lawyer withdrew
               [today] at 9:00 a.m. So, the Court is proceeding with trial today
               and allowing that lawyer to withdraw his appearance this
               morning.


       Id. at 12-13.


[11]   Ghani and Collman then made their record.


               As the Court’s well aware, as public defenders we carry a heavy
               caseload. We’re in court a lot. And a lot of the time
               unfortunately our preparation occurs during the last 24 to 48
               hours ahead of trial. That’s what was going to happen in this
               case specifically because Tuesday was a court holiday and it was
               Mr. Ghani’s and my [] intention to complete preparation
               whenever he indicated on Monday that we were ready to go.
               Again, Judge, we have the parts necessary at this point in time to
               become ready prior to trial. Not if the – if the Judge were to call
               the jury in in this very given moment, we’d be ready to go, Judge.
               That’s not what anyone means at a final pretrial conference when
               they confirmed. It’s not what we meant in this case either.


                                                        ***

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020   Page 6 of 12
         Again, with the Court holiday, Judge, that would have been the
         time at which we would have been and had planned to be in
         communication with Ms. Boatman regarding her decision to
         testify or not to testify, how to conduct voir dire, theme and
         theory of our case, what questions to ask of what witnesses. . . .
         Again, . . . once Ms. Boatman had an attorney file an
         appearance, we were for all intents and purposes from Monday
         afternoon barred by the Rules of Professional conduct from
         having any communication with her as she was a represented
         party, Judge.[ 3]


         . . . Additionally, we did not notify the Court because we
         assumed that private counsel’s filing and appearance was
         notification for the Court[,] and we did not turn over file to the
         private attorney because no request was made.


                                                    ***


         In a normal circumstance we would be prepared for trial.
         However, considering the circumstances, we need more time to
         be able to continue to prep this trial. We’re not asking for an
         exorbitant amount of time. We’re just asking for a reasonable
         amount of time.


Id. at 13-16. The State indicated it was ready to proceed with trial but had no

objection to a continuance.




3
 Later during trial, the court stated that it had reviewed the Rules of Professional Conduct and that defense
attorneys were not precluded under the Rules from communicating with Boatman or the new, private
counsel: “You’re not prohibited by the rules. It’s not attorney/client privilege if you’re talking about the
aspects of a case when you’re on the same side.” Transcript at 85. Counsel did not disagree.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020                     Page 7 of 12
[12]   The court, in response to defense counsels’ request for more time, stated:


               If you get a continuance, [Boatman] is going into custody. She
               has missed court three times. She was an hour late for trial. So, I
               will take her into custody and then you can tell me when you’re
               ready. And the Public Defender will be charged for the jury. I
               have the jury downstairs that I have ordered. She has missed
               court on February 1, 2019. She missed court on . . . July the lst
               of 2019, and she missed court this morning, was an hour late.


       Id. at 16. Defense counsel did not further press for a continuance and

       proceeded with trial.


[13]   At trial, defense counsel questioned potential witnesses, addressed motions in

       limine, cross-examined witnesses, posed objections, and presented closing

       argument. The jury acquitted Boatman of Level 6 felony pointing a firearm and

       convicted her of Level 6 felony criminal recklessness and Class A misdemeanor

       battery. The court sentenced Boatman to 545 days for the Level 6 felony

       conviction, suspending 500 days and giving credit of 45 days for time served,

       and imposed a concurrent 180 days, all suspended, for the Class A

       misdemeanor conviction. Boatman now appeals.


                                        Discussion & Decision
                                             I. Sixth Amendment

[14]   Boatman argues that her Sixth Amendment right to counsel was violated when

       “the trial court refused to grant her a continuance on the day of trial.”

       Appellant’s Brief at 16. The Sixth Amendment guarantees to every criminal

       defendant the right to the effective assistance of counsel. Lewis v. State, 730
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020   Page 8 of 12
       N.E.2d 686, 688 (Ind. 2000). Boatman does not raise an ineffective assistance

       claim under the two-part test set forth in Strickland, 4 where the defendant must

       show that counsel, first, performed deficiently and, second, prejudiced her as a

       result of that performance. Rather, she argues that her situation falls under

       United States v. Cronic, 466 U.S. 648, 659-60 (1984). As our Supreme Court has

       recognized, Cronic delineates three circumstances that avoid the Strickland

       requirement that a defendant establish both deficient performance and actual

       prejudice: (1) when there is a complete denial of counsel; (2) when there is a

       complete failure by counsel to subject the State’s case to meaningful adversarial

       testing; or (3) when the circumstances are such that “although counsel is

       available to assist the accused during trial, the likelihood that any lawyer, even

       a fully competent one, could provide effective assistance is so small that a

       presumption of prejudice is appropriate without inquiry into the actual conduct

       of the trial.” Ward v. State, 969 N.E.2d 46, 77 (Ind. 2012) (quoting Cronic, 466

       U.S. at 659-60); Harrison v. State, 707 N.E.2d 767, 774 (Ind. 1999).


[15]   Boatman urges that defense counsel did not have an opportunity to prepare

       questions for voir dire or cross-examination, had not discussed with Boatman

       whether she would testify, had not put together the theory of the case, and

       “[c]learly, the loss of the intervening 36 or so hours between the time that

       substitute counsel appeared and then withdrew from the case deprived defense




       4
           Strickland v. Washington, 466 U.S. 668, 687 (1984).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020   Page 9 of 12
       counsel of the time required to properly prepare the case for trial.” Appellant’s

       Brief at 19. We find, however, that Boatman’s claims do not fall into any of the

       three situations that would raise a presumption of ineffectiveness.


[16]   Here, attorneys from the Marion County Public Defender Agency had been

       continuously representing Boatman since the case’s inception. During the

       course of the case, Boatman’s counsel conducted discovery, deposed one or

       more witnesses, and filed witness and exhibit lists and a motion in limine. Two

       attorneys from that agency were present for trial, questioned jurors during voir

       dire, made an opening statement, cross-examined witnesses, objected to

       evidence, and presented closing argument, during which counsel argued that

       while the videotape of the incident showed Boatman pulling out a gun, it was

       too grainy to see if she pointed it directly at someone as required for Level 6

       felony pointing a firearm. The jury acquitted Boatman of that charge. The

       circumstances of this case do not show that Boatman was deprived of any

       meaningful opportunity to subject the State’s evidence to adversarial testing.

       Accordingly, we are not persuaded that Boatman’s case falls within the narrow

       exceptions of Cronic. 5




       5
         Boatman argues that the trial court knew and expressly recognized that counsel was not ready for trial. In
       support of that proposition, she refers us to the following exchange between counsel and the court in which
       the court stated if a continuance was granted, Boatman would be going into custody until trial.

                MR. GHANI: Judge, we understand she was an hour late today. However, having her
                chose [sic] between doing a jury trial –



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020                   Page 10 of 12
                                              II. Abuse of Discretion

[17]   Boatman argues that “[u]nder the unique circumstances of this case, the denial

       of the requested continuance was an abuse of discretion because it resulted in

       unprepared attorneys being forced to trial.” Appellant’s Brief at 21. When, as

       here, a party moves for a continuance not required by statute, we review the

       court’s decision for abuse of discretion. Zanussi v. State, 2 N.E.3d 731, 734 (Ind.

       Ct. App. 2013). An abuse of discretion occurs when the ruling is against the

       logic and effect of facts and circumstances before the court or the record

       demonstrates prejudice from denial of the continuance. Id. “Continuances to

       allow more time for preparation are generally disfavored in criminal cases.” Id.

       “Such motions require a specific showing as to how the additional time would

       have aided counsel.” Id. (quoting Robinson v. State, 724 N.E.2d 628, 634 (Ind.

       Ct. App. 2000), trans. denied).


[18]   Here, Ghani affirmatively stated at the November 4 pretrial hearing that the

       defense was ready to proceed to jury trial on November 6. After the court had

       closed on November 4, Hirschauer’s firm filed an appearance and then a

       motion to continue trial. Hirschauer had no contact with Ghani to discuss the




                THE COURT: It’s not her choice. It’s yours. If you want a continuance you may get ready,
                but she is going into custody.


       Transcript at 16 (emphasis added). Boatman argues that the court’s use of the words “[i]f you want a
       continuance you may get ready” reflects the court’s knowledge “that [her] attorneys were not prepared for
       trial.” Appellant’s Brief at 20. We disagree with this interpretation. The context of the full colloquy between
       counsel and the court reflects that the court was merely re-stating what counsel had repeatedly urged – i.e.,
       they needed more time to “get ready” for jury trial.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020                      Page 11 of 12
       case, Hirschauer did not make any request that Ghani provide him with

       Boatman’s file, and Ghani did not file a motion to withdraw. The jury was

       assembled on the morning of November 6. Boatman was not present for trial,

       nor was Hirschauer. After the court denied Hirschauer’s motion to continue,

       his colleague moved to withdraw, which the court granted. Ghani and

       Collman remained as counsel on the case, and their office had represented

       Boatman since the beginning. Boatman was found not guilty of one of the

       charged offenses. She has provided no compelling examples of how additional

       time would have benefited her defense. Under these circumstances, we find

       that the court’s denial of Boatman’s request for additional time was not an

       abuse of discretion. See Turner v. State, 508 N.E.2d 541, 547 (Ind. 1987) (“The

       last minute dismissal of counsel and subsequent request for a continuance to

       seek new counsel is an often used ploy for stalling the trial, and when this

       maneuver impedes sound judicial administration, there is no abuse of discretion

       to proceed without granting a further continuance.”)


[19]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2934 | June 19, 2020   Page 12 of 12
