                                                                                  FILED
                                                                              Nov 20 2019, 5:55 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      A. David Hutson                                           Curtis T. Hill, Jr.
      Hutson Legal                                              Attorney General of Indiana
      Jeffersonville, Indiana
                                                                Justin F. Roebel
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jarvis Peele,                                             November 20, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-1160
              v.                                                Appeal from the Clark Circuit
                                                                Court
      State of Indiana,                                         The Honorable Bradley B. Jacobs,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                10C02-1708-F6-1587



      Najam, Judge.


                                        Statement of the Case
[1]   Jarvis Peele appeals his convictions for possession of methamphetamine, as a

      Level 6 felony, and two counts of resisting law enforcement, each as a Class A

      misdemeanor, following a jury trial. Peele raises two issues for our review, but
      Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019                           Page 1 of 9
      we find the following issue dispositive: whether the trial court erred when it

      granted the State’s motion to continue Peele’s trial, outside the timeframe

      required by Peele’s speedy-trial request, based on purportedly unavailable lab

      test results that the State had not requested from the State Police Laboratory

      until the same day the State asked the court to continue Peele’s trial. We

      reverse.


                                  Facts and Procedural History
[2]   In August of 2017, Jeffersonville law enforcement officers investigated an

      apparently abandoned home. Officers entered the home through an open

      garage door and found Peele inside. Peele was lethargic and not following

      officer commands, and, when officers attempted to place Peele in handcuffs, a

      struggle ensued. Officers eventually subdued Peele, searched his person, and

      found methamphetamine in a pocket of his pants.


[3]   The State charged Peele with possession of methamphetamine, as a Level 6

      felony, and two counts of resisting law enforcement, each as a Class A

      misdemeanor. Peele requested a speedy trial at his initial hearing, and the trial

      court set his jury trial date for October 17 in accordance with that request.


[4]   Thirteen days before the commencement of Peele’s jury trial, the court held a

      status conference. Peele was present at that conference in person and by

      counsel. The court engaged the parties in the following colloquy:


              THE COURT: So . . . we are set for [a] speedy [trial] and when
              is that trial set for?

      Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019      Page 2 of 9
                                                  ***


              [THE DEPUTY PROSECUTOR]: . . . October 17th, Judge, but
              the State is going to have to request a 90[-]day continuance for
              the labs.


              THE COURT: Labs? Ok. So, we haven’t seen that[;] as of now,
              Mr. Peele, we’re still set for October 17th. No change in the
              bond, no change in the trial date. When the State requests . . . a
              continuance on the trial date . . . we’ll assume your attorney to object and
              we’ll . . . set that for a hearing as well.


              [PEELE]: Alright.


      Tr. Vol. 1 at 9-10 (emphasis added).


[5]   The next day, the State filed its written motion to continue. The totality of the

      State’s argument in support of its motion was as follows:


              1) That the . . . case is currently set for a Jury Trial on October
              17, 2017;


              2) That the [S]tate has not received the lab analysis from the
              Indiana State Police lab;


              3) That pursuant to Criminal Rule 4(D):


                       . . . there is evidence for the state, which cannot then be
                       had, that reasonable effort has been made to procure the
                       same and there is just ground to believe that such evidence
                       can be had within ninety (90) da[y]s, the cause may be
                       continued . . . .


      Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019              Page 3 of 9
              4) That the State’s motion is not made for the purposes of
              prejudice or undue delay.


      Appellant’s App. Vol. 2 at 33. The trial court granted the State’s request that

      same day and set the next status conference for February 28, 2018, and Peele’s

      jury trial for March 20, 2018.


[6]   One week after the State filed its motion to continue, on October 12, Peele

      wrote a letter to the court. In that letter, Peele asked to have his court-

      appointed counsel replaced because his counsel had “put [Peele’s]

      constitutional rights in jeopardy . . . by not filing the proper motions and/or

      failing to prepare a defense against the State[’]s continuance of a trial date past

      [Peele’s] fast and speedy trial date.” Id. at 36. Peele further requested “an

      immediate court date . . . to review these matters in open court.” Id.


[7]   On October 16, 2017, Peele informed the court that he had obtained substitute

      counsel. In early November, Peele filed a pro se motion for discharge, which, in

      late November, his substitute counsel refiled with the court. In late January of

      2018, the trial court held a hearing on Peele’s discharge requests. At that

      hearing, the State conceded that it did not request lab results from the State

      Police Laboratory until October 4th, the same day the State first informed the

      court that it intended to file its motion to continue pursuant to Indiana Criminal

      Rule 4(D). After the hearing, the court denied Peele’s request for discharge.

      Thereafter, a jury found him guilty as charged, which the trial court reduced to

      judgment. This appeal ensued.


      Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019         Page 4 of 9
                                      Discussion and Decision
[8]   Peele requested a speedy trial and asserts on appeal that the trial court granted

      the State’s October 5, 2017, motion to continue in violation of his speedy-trial

      rights. The right of an accused to a speedy trial is guaranteed by the United

      States and Indiana Constitutions. U.S. Const. amend. VI; Ind. Const. art. 1, §

      12. Indiana Criminal Rule 4 implements those rights and generally requires a

      criminal defendant to be brought to trial within seventy days of his speedy-trial

      request. Ind. Criminal Rule 4(B)(1).


[9]   However, among other reasons for extensions of that timeframe, Indiana

      Criminal Rule 4(D) provides as follows:


              If when application is made for discharge of a defendant under
              this rule, the court be satisfied that there is evidence for the state,
              which cannot then be had, that reasonable effort has been made to
              procure the same and there is just ground to believe that such
              evidence can be had within ninety (90) days, the cause may be
              continued, and the prisoner remanded or admitted to bail; and if
              he be not brought to trial by the state within such additional
              ninety (90) days, he shall then be discharged.


      (Emphasis added.) As another panel of this Court recently explained in a

      similar appeal:


              Thus, in order to grant a continuance as provided in Rule 4(D),
              the trial court must be satisfied that the State made a reasonable
              effort to procure the evidence. Smith v. State, 802 N.E.2d 393,
              401 (Ind. Ct. App. 2013), trans. denied. Whether the requested
              delay is reasonable should be judged according to the
              circumstances of the particular case. Id. In addition, we evaluate

      Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019             Page 5 of 9
               the reasonableness of the State’s request for a trial delay in light
               of the information known or available to it at the time of the
               request. Small v. State, 112 N.E.3d 738, 743 (Ind. Ct. App. 2018).
               As a general rule, a trial court’s decision to grant a Rule 4(D)
               continuance is reviewed for an abuse of discretion. Smith, 802
               N.E.2d at 401.


       Dilley v. State, ___ N.E.3d ___, No. 19A-CR-173, 2019 WL 5415844, at *3 (Ind.

       Ct. App. Oct. 23, 2019).


[10]   Peele’s argument is, in essence, that the State did not make a “reasonable

       effort” to procure the lab test results pursuant to Rule 4(D) when the State

       requested those results on the same day it informed the court that it would

       move to continue Peele’s trial. In addressing a similar issue in Dilley, we stated:


               Dilley invoked his right to a speedy trial at the earliest possible
               opportunity at his initial hearing on April 10, 2018. Dilley’s
               invocation of his speedy trial right meant that the State had until
               June 19, 2018, to bring him to trial. At Dilley’s initial hearing,
               the trial court set Dilley’s trial for June 18, 2018. Dilley never
               retracted his speedy trial request, and the June 18, 2018, trial date
               never changed before the State filed its Rule 4(D) continuance
               motion.


               At the final pre-trial conference on May 31, 2018, the prosecutor
               informed the trial court that the only matter “outstanding” for
               trial preparation was the test results. In her Rule 4(D)
               continuance motion filed June 1, 2018, a mere seventeen days
               before trial, the prosecutor averred that the continuance was
               necessary because the testing results were “not yet prepared.” In
               her argument at the hearing on the continuance motion, the
               prosecutor represented to the trial court that she had personally
               contacted the director of the laboratory “to confirm that the lab

       Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019          Page 6 of 9
               results would be back by June 19th . . . .” The implication of
               these statements was that testing was already underway. The
               prosecutor did not inform the trial court in either her written or
               oral motions that the evidence had not been conveyed to the
               State Laboratory for testing and was, in fact, not conveyed until
               June 4, 2018, after the written continuance motion was filed.
               This was a fact that had to have been known to the prosecutor
               when she argued the continuance motion on June 5, 2018, and
               which she should have made known to the trial court before it
               rendered its ruling.


               Rule 4(D) requires that the State show “that reasonable effort has
               been made to procure” the missing evidence. It cannot be said
               that reasonable efforts had been made to procure the evidence for
               purposes of Rule 4(D) if that effort had not actually been
               commenced by initiating the testing process before the filing of
               the continuance motion. Cf. Chambers v. State, 848 N.E.2d 298,
               304 (Ind. Ct. App. 2006) (finding that the State initially made
               reasonable efforts to procure test results where, on the same day
               speedy trial request was made, it sent drugs to the laboratory and
               procured expedited processing), trans. denied. . . .


       Id. at *4 (record citations omitted).


[11]   Our reasoning and holding in Dilley is equally applicable here. Peele invoked

       his speedy-trial rights at his earliest opportunity, at his initial hearing, and his

       October 17, 2018, trial date remained unchanged until the State’s Rule 4(D)

       motion to continue. At the final status conference prior to the trial date, a mere

       thirteen days before the trial was set to commence, the deputy prosecutor

       informed the court that the State would need a continuance “for the labs.” Tr.

       Vol. 1 at 9-10. And, in its written motion the next day, the State informed the



       Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019         Page 7 of 9
       court that it “ha[d] not received the lab analysis.” Appellant’s App. Vol. 2 at

       33.


[12]   The obvious—if not intended—implication of the deputy prosecutor’s

       representations to the court was that testing was already underway. But the

       deputy prosecutor did not inform the court either orally at the status conference

       or in the written motion that the evidence either had not even been conveyed to

       the State Police Laboratory or had only been sent within, at most, the prior

       twenty-four hours. “This was a fact that had to have been known to the

       prosecutor” when he moved to continue, and it is a fact he “should have made

       known to the trial court before it rendered its ruling.” Dilley, 2019 WL

       5415844, at *4.


[13]   There is no question that the State failed to take reasonable efforts to procure

       the lab test results for purposes of Rule 4(D), and, as such, the trial court erred

       when it granted that motion. We hesitate to use the term “abuse of discretion,”

       however, as the basis for the error was hidden from the court by the deputy

       prosecutor at the time of his motion. Indeed, we have no hesitation in

       concluding that the deputy prosecutor’s omission of this obviously relevant

       information supports an inference that the State had not by then made a

       reasonable effort to procure the evidence.


[14]   Nonetheless, the State asserts on appeal that Peele waived his speedy-trial

       request by not objecting to the new trial date at his first opportunity. We reject

       this assertion for several reasons. First, at the October 4 status conference, the


       Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019       Page 8 of 9
       trial court expressly told Peele that he did not have to bother to object because

       such objection would be “assume[d].” Tr. Vol. 1 at 9-10. Second, we do not

       hesitate to conclude that, in any event, Peele’s October 12 handwritten letter to

       the court sufficed to put the court on notice that he objected to the new trial

       date and desired new counsel because of it. Cf. Showalter v. Town of Thorntown,

       902 N.E.2d 338, 342 (Ind. Ct. App 2009) (noting that the rule of waiver “in part

       protects the integrity of the trial court; it cannot be found to have erred as to an

       issue or argument that it never had an opportunity to consider.”) (quotation

       marks omitted). Third, as our Supreme Court has made clear, we prefer to

       decide appeals on their merits, and there is nothing about any purported waiver

       here that justifies disregarding the clear violation of Peele’s speedy-trial rights.

       E.g., Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614, 623 (Ind. 2019).


[15]   Peele preserved his speedy trial rights but was not brought to trial until well

       after the expiration of seventy days. As such, he was entitled to discharge of the

       charges against him, and the trial court erred when it granted the State’s Rule

       4(D) motion to continue.


[16]   Reversed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1160 | November 20, 2019          Page 9 of 9
