Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Aug 07 2014, 6:25 am
any 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:

BRUCE W. GRAHAM                                    GREGORY F. ZOELLER
Graham Law Firm P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                   J.T. WHITEHEAD
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

RIO MICHAELS,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )         No. 79A04-1311-CR-559
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Randy J. Williams, Judge
                               Cause No. 79D01-1207-FC-28



                                         August 7, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       Following a bifurcated jury trial, Appellant-Defendant Rio Michaels was convicted of

Class C felony carrying a handgun without a license with a prior felony and Class D felony

criminal recklessness. Michaels was subsequently sentenced to an aggregate ten-year term,

with eight years executed in the Department of Correction (“DOC”) and two years suspended

to probation. On appeal, Michaels raises several issues, which we restate as follows: (1)

whether Appellee-Plaintiff the State of Indiana (the “State”) presented sufficient evidence to

negate Michaels’s proffered necessity defense, (2) whether the trial court abused its

discretion in denying Michaels’s stand-by counsel’s request for a continuance, (3) whether

the evidence is sufficient to sustain the elevation of Michaels’s conviction for carrying a

handgun without a license to a Class C felony, and (4) whether Michaels’s due process rights

were violated by the alleged failure to promptly bring Michaels before the trial court for an

initial hearing. We affirm.

                       FACTS AND PROCEDURAL HISTORY

                                   A. Factual Overview

                 1. Version of Events Presented by the State’s Witnesses

       On the afternoon of June 30, 2012, Angie Fassnacht and her boyfriend, Richard

Fisher, were working on a house owned by Fassnacht’s mother that was located at 1201

Washington Street in Lafayette (“1201 Washington Street residence”).               The 1201

Washington Street residence was located next door to Michaels’s residence. While on the

front porch of the 1201 Washington Street residence, Fassnacht saw Michaels shoot a gun

                                              2
into the air. At the time Michaels shot the gun into the air he shouted “something about Joe.”

Tr. p. 165. Fassnacht was scared after Michaels shot the gun into the air, and she quickly

“ran to [her] car.” Tr. p. 161. Fassnacht later explained that she was “running for cover

[because she] didn’t know what [Michaels’s] intentions were.” Tr. p. 167. After getting into

her vehicle, Fassnacht saw Michaels run to the back of his residence. After also hearing the

gunshot, Fisher exited the 1201 Washington Street residence and joined Fassnacht in her

vehicle. Fassnacht then called 911.

                2. Version of Events Presented by the Defense’s Witnesses

       On the afternoon of June 30, 2012, Michaels’s wife, Anna, was in a back bedroom of

the home she shared with Michaels. Suddenly, Anna heard “some kicking at the bottom” of

the back door. Tr. p. 230. Michaels was in the restroom at the time. Anna shouted “who is

it like three times.” Tr. p. 230. After receiving no response, Anna grabbed her pistol from

her top dresser drawer, went to the back door, and flung the door open. When she opened the

door, Anna saw a “tall, African American” man who was wearing a red “jersey style” shirt

with “some kind of like shorts with the big cargo pockets on the side.” Tr. p. 234. Anna

believed that Fisher was the man kicking on her back door. Anna “fired off a round, pointed

at the ground, and the guy was already tearing off across the back of the yard.” Tr. p. 233.

Anna later indicated that she reacted by grabbing and ultimately firing the weapon because

she suffers from “a little touch of post-dramatic stress disorder,” Tr. p. 232, because she had

prior experience with “about seven different stalkers,” some of whom were not “too safe.”

Tr. p. 231. Anna then called 911.

                                              3
                                   3. Police Investigation

       A number of officers from the Lafayette Police Department responded to the scene.

Both Fassnacht and Anna separately described their version of the events in question to the

investigating officers. Anna initially told investigating officers that she thought she put the

weapon back on the dresser after the incident, but stated that she could not be sure because

she “was freaking out, I was crying, I was shaking bad … I was just trembling like this and I

was just on auto pilot at that point.” Tr. p. 235. Anna subsequently indicated that Michaels

took the weapon from her in order to protect their family because she was “holding that gun

in the emotional state.” Tr. p. 236.

       When Officer Grant Davidson arrived on the scene, Michaels flagged him down.

Michaels was nervous, spoke rapidly, and raised his hands as he informed Officer Davidson

that he was carrying a handgun. Officer Davidson removed a black, semi-automatic gun

from Michaels’s front right pocket.

       Consistent with Fassnacht’s version of the events, investigating officers subsequently

found a shell casing on the front porch of Michaels’s residence. Investigating officers were

not able to locate a shell casing in the backyard. Investigating officers observed no sign of

damage to the back door of Michaels’s residence.

                                   B. Procedural History

       On July 9, 2012, the State charged Michaels with Class C felony carrying a handgun

by a convicted felon, Class D felony criminal recklessness, and Class A misdemeanor

carrying a handgun without a license. The Lafayette County Public Defender’s Office

                                              4
(“Public Defender’s Office”) was initially appointed to represent Michaels in the underlying

case on August 8, 2012. However, at some point Michaels indicated that he did not want to

be represented by the Public Defender’s Officer, but rather that he wished to proceed pro se.

Following a hearing at which the trial court explained the pitfalls of self-representation and

examined Michaels’s ability to represent himself, the trial court granted Michaels’s motion to

proceed pro se. The trial court also appointed the Public Defender’s Office to serve as stand-

by counsel.

         On July 10, 2013, during a hearing at which Michaels was present, the trial court

noted on the record that trial was scheduled for August 20, 2013. At some point on or before

August 13, 2013, Kevin O’Reilly was appointed as stand-by counsel on behalf of the Public

Defender’s Office. On this date, O’Reilly appeared as stand-by counsel during a pre-trial

hearing. O’Reilly also appeared as stand-by counsel during a subsequent pre-trial hearing.

During these pre-trial hearings, O’Reilly was exposed to Michaels’s claimed defenses and

apparent trial strategy.

         Despite being notified of the August 20, 2013 trial date in open court, Michaels failed

to appear for trial on the morning of August 20, 2013. In light of Michaels’s failure to

appear, the trial court found that Michaels had relinquished his right to appear pro se and

appointed O’Reilly to represent Michaels at trial. O’Reilly then requested a continuance of

trial. The trial court denied O’Reilly’s request for a continuance, and the case proceeded to

trial.

         Following part one of a bifurcated trial, the jury found Michaels guilty of Class A

                                                5
misdemeanor carrying a handgun without a license and Class D felony criminal recklessness.

The matter then proceeded to part two of the bifurcated trial, after which the jury determined

that Michaels had committed a prior unrelated felony within the preceding fifteen years. In

light of this determination, Michaels’s conviction for carrying a handgun without a license

was elevated to a Class C felony.

                             DISCUSSION AND DECISION

                        I. Whether the State Sufficiency Negated
                         Michaels’s Proffered Necessity Defense

       Initially we note that Michaels does not dispute that he possessed and carried a

handgun without a license. Michaels, however, argues that he did so out of manifest

necessity. On appeal, Michaels contends that the State presented insufficient evidence to

negate his proffered necessity defense.

               In order to prevail on a claim of necessity, the defendant must show (1)
       the act charged as criminal must have been done to prevent a significant evil,
       (2) there must have been no adequate alternative to the commission of the act,
       (3) the harm caused by the act must not be disproportionate to the harm
       avoided, (4) the accused must entertain a good faith belief that his act was
       necessary to prevent greater harm, (5) such belief must be objectively
       reasonable under all the circumstances, and (6) the accused must not have
       substantially contributed to the creation of the emergency. Toops v. State, 643
       N.E.2d 387, 390 (Ind. Ct. App. 1994). In order to negate a claim of necessity,
       the State must disprove at least one element of the defense beyond a
       reasonable doubt. See Pointer v. State, 585 N.E.2d 33, 36 (Ind. Ct. App. 1992)
       (discussing State’s burden in the context of an analogous self-defense claim).
       The State may refute a claim of the defense of necessity by direct rebuttal, or
       by relying upon the sufficiency of the evidence in its case-in-chief. Id. The
       decision whether a claim of necessity has been disproved is entrusted to the
       fact-finder. Id. Where a defendant is convicted despite his claim of necessity,
       this court will reverse the conviction only if no reasonable person could say
       that the defense was negated by the State beyond a reasonable doubt. Id.

                                              6
Dozier v. State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999).

       In arguing that the State failed to present sufficient evidence to negate his proffered

necessity defense, Michaels argues that he established each of the above-stated six factors.

Specifically, he argues that he possessed the weapon to prevent a home intrusion; that given

Anna’s mental state, he had no adequate alternative but to take the weapon from her and

possess the weapon himself; that there was no harm caused by his possession of the weapon;

that he entertained a good faith objectively reasonable belief that his possession of the

weapon was necessary to prevent a greater harm; and that he did not substantially contribute

to the creation of the circumstances leading to his possession of the weapon. For its part, the

State claims that it presented sufficient evidence to negate Michaels’s claim of necessity.

              When reviewing whether the State presented sufficient evidence to
       negate a defendant’s claim of necessity, we apply the same standard of review
       used for all sufficiency of the evidence questions. We neither reweigh the
       evidence nor judge the credibility of witnesses. Johnson v. State, 671 N.E.2d
       1203, 1209 (Ind. Ct. App. 1996), trans. denied. Rather, we examine only the
       evidence most favorable to the State along with all reasonable inferences to be
       drawn therefrom. Id. If there is substantial evidence of probative value to
       sustain the conviction, then it will not be set aside. Id.

Id. at 30.

       Upon review, we conclude that the State presented sufficient evidence of probative

value to sustain Michaels’s conviction for carrying a handgun without a license. Here, the

State and the defense presented conflicting versions of the facts relating to the underlying

incident. The State presented evidence establishing that Michaels possessed and fired the

weapon while on the front porch of his residence, while the defense presented evidence


                                              7
establishing that Michaels did not fire the weapon and only possessed the weapon after he

took it from Anna who had fired it into the backyard.

       Again, Fassnacht testified that on the afternoon of June 30, 2012, she saw Michaels

fire a gun into the air. Anna, on the other hand, testified that she fired the weapon into the

back yard of her and Michaels’s residence after she heard someone kicking on the back door

of the residence. Anna also suggested that Michaels only possessed the weapon out of a

manifest necessity to protect their family. In this regard, Anna testified that after shooting

the weapon, she was “freaking out,” crying, “shaking bad”, and trembling. Tr. p. 235. She

further testified that Michaels took the weapon from her after she shot it into the backyard

because she was a danger to herself and others so long as she continued to hold the weapon

while in such an emotional state.

       The jury, acting as the fact finder, was free to judge witness credibility and believe or

not believe the witnesses as it saw fit. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.

2004); McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996); Moore v. State, 637

N.E.2d 816, 822 (Ind. Ct. App. 1994), trans. denied. In finding Michaels guilty, it appears

that the jury disbelieved the version of the facts presented by Anna and Michaels’s claimed

necessity defense. The jury was free to do so. Michaels’s claim on appeal is essentially an

invitation to judge the credibility of the witnesses and reweigh the evidence, which we will

not do. See Dozier, 709 N.E.2d at 30.

                 II. Whether the Trial Court Abused Its Discretion
             By Denying Stand-By Counsel’s Request for A Continuance


                                               8
       Michaels next contends that the trial court abused its discretion by denying his stand-

by counsel’s request for a continuance.

       The granting or denial of a continuance lies within the sound discretion of the
       trial court, and its decision will be disturbed only upon a showing that the court
       abused its discretion. Woodfork v. State, 594 N.E.2d 468, 470 (Ind. Ct. App.
       1992). This burden is met when a defendant demonstrates that he was
       prejudiced by the court’s denial of his request for a continuance. Id.
       Continuances to allow more time for preparation are generally disfavored in
       criminal cases, granted only upon a showing of good cause and in the
       furtherance of justice. Hazelwood v. State, 609 N.E.2d 10, 13 (Ind. Ct. App.
       1993), trans. denied.

Sublett v. State, 665 N.E.2d 621, 623 (Ind. Ct. App. 1996). In addition, a specific showing is

required as to how the additional time requested would have aided counsel. Jones v. State,

701 N.E.2d 863, 871 (Ind. Ct. App. 1998).

       In claiming that the trial court abused its discretion in denying his stand-by counsel’s

request for a continuance, Michaels essentially argues that his stand-by counsel was denied

adequate time to prepare for trial. While the right to counsel includes reasonable preparation

time, the Indiana Supreme Court has stated that there is no minimum period of time which

must be allowed by the court. Marshall v. State, 438 N.E.2d 986, 988 (Ind. 1982). The

adequacy of time allowed for preparation must be determined on a case by case basis,

considering the totality of the circumstances. Id. (citing Jones v. State, 175 Ind. App. 343,

345, 371 N.E.2d 1314, 1316 (1978)).

       In the instant matter, the State charged Michaels with the underlying criminal offenses

on July 9, 2012. The Public Defender’s Office was initially appointed to represent Michaels

in the underlying case on August 8, 2012. However, at some point Michaels indicated that he

                                               9
did not want to be represented by the Public Defender’s Officer, but rather that he wished to

proceed pro se. At some point on or before August 13, 2013, Kevin O’Reilly was appointed

as stand-by counsel on behalf of the Public Defender’s Office. On this date, O’Reilly

appeared as stand-by counsel during a pre-trial hearing. O’Reilly also appeared as stand-by

counsel during a subsequent pre-trial hearing. During these pre-trial hearings, O’Reilly was

exposed to Michaels’s claimed defenses and apparent trial strategy.

       Despite being notified of the August 20, 2013 trial date in open court, Michaels failed

to appear for the start of trial on the morning of August 20, 2013. In light of Michaels’s

failure to appear, the trial court found that Michaels had relinquished his right to appear pro

se and appointed O’Reilly to represent Michaels at trial. O’Reilly then requested a

continuance of trial. In making this request, O’Reilly acknowledged that he had been stand-

by counsel for “a couple of weeks” and that the Public Defender’s Office had been stand-by

counsel for “a couple of months.” Tr. p. 94. O’Reilly asserted that despite this association

with Michaels’s case, “there [were] several things that [he] would have done” had he been

actively representing Michaels. Tr. p. 94. O’Reilly stated that

       At a minimum I would have deposed the State’s eye witness in this case, uh,
       two or three of the police officers I can think of, probably would have wanted
       to depose them. There are some witnesses I would have subpoenaed.
       Obviously as stand-by counsel it wasn’t appropriate for me to take those
       actions so there’s a lack of preparation. I understand Judge, that the purpose of
       stand-by counsel is to be able to step in and take over in the event the
       defendant is unable or unwilling to proceed. Uh, and if, in the normal case he
       would be removed but he still would be available to consult, to advise me
       concerning the facts, uh, to, to kind of back me up as far as evidence and what
       happened and I could consult him throughout the trial. Obviously Mr.
       Michaels is not here so we have a combination, Judge, and I think an unusual
       combination of a lack of preparation and the absence of the defendant. Uh,
                                               10
       both of those things co-existing puts me in a position where I don’t know if it
       will be possible to provide effective assistance of counsel if this trial were to
       proceed today.

Tr. pp. 94-95.

       The trial court denied O’Reilly’s request for a continuance, finding as follows:

       I understand that this is an unusual situation. One which I could not find in
       any, any review of the law and I believe counsel has also taken a look to see if
       this specific issue had arisen. Uh, we may be making law today. However, I
       believe that in the absence of the stand-by counsel, there would be no basis to
       continue to trial. The defendant had been notified. He has the absolute right
       not to appear for his trial. That we have an attorney who can move in in his
       stead, that as, as counsel, I believe will provide the defendant with more, with
       better representation at this point than he would have had in the absence of any
       counsel, be it through the process of voir dire, cross-examination. For in the
       absence of any counsel, we would proceed with the State and that would be all.
       I think the defendant, therefore, has, is better representation today by Mr.
       O’Reilly sitting in than the defendant would have had, had the Court
       proceeded with a completely empty defense table. If you need a few minutes
       Mr. O’Reilly, we can do that.

Tr. pp. 96-97. The case then proceeded to trial.

       During trial, O’Reilly represented Michaels in a manner which demonstrated that he

had knowledge of Michaels’s version of the facts of the case as well as Michaels’s claimed

defenses and planned trial strategy. Specifically, O’Reilly elicited testimony from Michaels’s

wife Anna that established Michaels’s version of the events in question. O’Reilly also

elicited testimony from Anna which supported Michaels’s claimed defense that he only

possessed the weapon out of necessity to protect himself and his family.

       During questioning by O’Reilly, Anna testified that on the date in question, she was in

a back bedroom and Michaels was in the restroom when she heard “some kicking at the


                                              11
bottom” of the back door. Tr. p. 230. Anna shouted “who is it like three times.” Tr. p. 230.

After receiving no response, Anna grabbed her pistol from her top dresser drawer, went to

the back door, and flung the door open. Anna stated that when she opened the door, she saw

a “tall, African American” man who was wearing a red “jersey style” shirt with “some kind

of like shorts with the big cargo pockets on the side.” Tr. p. 234. Anna further testified that

she believed that Fisher was the man kicking on her back door.

       Anna testified that she “fired off a round, pointed at the ground, and the guy was

already tearing off across the back of the yard.” Tr. p. 233. Anna further testified that she

was ultimately able to find the shell from the bullet which she claimed to have fired into the

backyard. O’Reilly presented the shell which Anna claimed to have shot into the backyard

and successfully argued for its admission into evidence over the State’s objection. Anna

testified that she reacted by grabbing and ultimately firing the weapon because she suffers

from “a little touch of post-dramatic stress disorder,” Tr. p. 232, because she had prior

experience with “about seven different stalkers,” some of whom were not “too safe.” Tr. p.

231.

       Anna admitted that she told investigating officers that she thought she put the weapon

back on the dresser after the incident, but stated that she could not be sure because she “was

freaking out, I was crying, I was shaking bad … I was just trembling like this and I was just

on auto pilot at that point.” Tr. p. 235. Anna also testified that Michaels took the weapon

from her. Anna’s testimony suggested that Michaels took the weapon from her out of

necessity to protect their family because Anna was a danger as she was “holding that gun in

                                              12
the emotional state.” Tr. p. 236.

       In addition to Anna’s above-stated testimony, O’Reilly questioned various other

defense witnesses, including Anna’s two daughters, who testified in a manner consistent with

Michaels’s apparent planned strategy during trial. Through these numerous defense

witnesses, O’Reilly presented facts supporting Michaels’s version of the events, and

developed Michaels’s claimed defenses. O’Reilly also cross-examined the State’s witnesses

in an attempt to raise questions about the witness’ credibility.

       Michaels has not asserted on appeal how additional time would have enabled O’Reilly

to better present his version of the events or his claimed necessity defense. Michaels has

failed to make a specific showing as to (1) how additional time would have aided O’Reilly’s

representation of him or (2) what O’Reilly could have done differently had the continuance

been granted. In addition, Michaels has failed to demonstrate how he was prejudiced by the

trial court’s denial of O’Reilly’s motion for continuance.

       The trial court was in the best position to evaluate the fairness of the proceedings, and,

upon review, we cannot conclude the trial court’s denial of Michaels’s motion for a

continuance was an abuse of discretion. See generally Jones, 701 N.E.2d at 871 (providing

that the court on appeal could not conclude that the trial court abused its discretion in

denying defendant’s motion for a continuance because defendant failed to show how

additional time would have aided her defense or how she was prejudiced by denial of her

request for a continuance). As such, in light of Michaels’s failure to demonstrate prejudice,

we conclude that the trial court acted within its discretion when it denied O’Reilly’s request

                                              13
for a continuance.

   III. Whether the Evidence Is Sufficient to Sustain the Elevation of Michaels’s
     Conviction for Carrying a Handgun Without a License to a Class C Felony

       Michaels next contends that the evidence is insufficient to sustain the elevation of his

conviction for carrying a handgun without a license from a Class A misdemeanor to a Class

C felony. Specifically, Michaels claims that the evidence is insufficient to sustain the jury’s

determination that he had been convicted of a felony during the fifteen years preceding the

date that the instant offense was committed.

       Indiana Code section 35-47-2-1 provides, in relevant part, that a person “shall not

carry a handgun in any vehicle or on or about the person’s body without being licensed under

this chapter to carry a handgun.” Indiana Code section 35-47-2-23(c) further provides that a

person who violates Indiana Code section 35-47-2-1 commits a Class A misdemeanor.

However, the offense is a Class C felony if the person “has been convicted of a felony within

fifteen (15) years before the date of the offense.” Ind. Code § 35-47-2-23(c).

       “For almost 30 years, this Court has held that the State must introduce into evidence

proper certified and authenticated records of the defendant’s prior felony convictions in order

to prove beyond a reasonable doubt the existence of those prior convictions.” Dexter v.

State, 959 N.E.2d 235, 238 (Ind. 2012) (emphasis in original). However,

       “[a] defendant may not wage a collateral attack on the validity of a prior
       conviction during a habitual-offender proceeding unless the court documents
       on their face raise a presumption that the conviction is constitutionally infirm
       and the apparent constitutional infirmity undermines the integrity and
       reliability of the guilt determination.”


                                              14
Smith v. State, 982 N.E.2d 393, 409 (Ind. Ct. App. 2013) (quoting Dexter, 959 N.E.2d at

238), trans. denied; see generally Gross v. State, 444 N.E.2d 296, 301 (Ind. 1983) (providing

that any technical irregularity in the manner of entering a judgment of commitment does not

render that judgment void and any challenge thereto must be asserted in the court where the

judgment was entered). We believe that the same is true for a challenge to an enhancement

to the level of crime committed that is predicated on a prior conviction.

       Here, in order to prove that Michaels had been convicted of a felony within the

preceding fifteen years, the State submitted into evidence State’s Exhibit 16. State’s Exhibit

16 is a certified copy of a Judgment of Conviction from the State of Wisconsin. Pursuant to

Wisconsin law, the Judgment of Conviction was signed by the clerk of the court. See Wis.

Stat. § 972.13(4). The Judgment of Conviction demonstrated that Michaels was convicted of

felony burglary in Milwaukee County, Wisconsin in December of 2011.

       In challenging the sufficiency of the Judgment of Conviction to sustain the Class C

felony enhancement, Michaels does not contest that the Judgment of Conviction is valid

under Wisconsin law. Rather, he argues that the Judgment of Conviction is insufficient to

prove that he was convicted of the Wisconsin felony burglary because it was not signed by

the trial judge. In support, Michaels cites to the Indiana Supreme Court’s opinion in Dexter,

which provides that in order to constitute substantial evidence of probative value sufficient to

sustain a habitual-offender enhancement, a judgment of conviction entered in Indiana courts

must be signed by the trial judge. 959 N.E.2d at 239.

       However, the requirements of Indiana judgments of conviction as outlined in Dexter

                                              15
do not apply to the instant matter because the Judgment of Conviction at issue here was

issued by a court of record outside of Indiana and complies with the requirements of that

court. Indiana Code section 34-39-4-3(b) provides that properly authenticated records of

judicial proceedings arising from a state other than Indiana “shall have full faith and credit

given to them in any court in Indiana as by law or usage they have in the courts in which they

originated.” Again, here, the Judgment of Conviction was entered in a Wisconsin court. The

Judgment of Conviction complies with Wisconsin Statute section 972.13(4), which provides

that a judgment of conviction shall be “signed by the judge or clerk.” (Emphasis added).

The copy of the Judgment of Conviction admitted at Michaels’s trial was properly certified

and its admission was not challenged by Michaels. Because the Judgment of Conviction at

issue here complies with the law of the jurisdiction in which it was entered, i.e., Wisconsin,

we conclude that it is sufficient to prove that Michaels was convicted of a prior felony and

could be used to prove that Michaels had been convicted of a felony within the preceding

fifteen years. Accordingly, we conclude that Michaels’s claim in this regard is without merit.

            IV. Whether the Alleged Failure to Promptly Bring Michaels
             Before the Trial Court for an Initial Hearing Resulted in a
                     Violation of Michaels’s Due Process Rights

       Michaels last contends that his due process rights were violated because he was not

promptly brought before the trial court for an initial hearing. In raising this contention,

Michaels claims that “dismissal of this case would be appropriate to place everyone on notice

that there are repercussions for failing to provide a prompt Initial Hearing in a warrantless

arrest case.” Appellant’s Br. p. 21. We disagree.

                                             16
        Indiana Code section 35-33-7-1 provides that “[a] person arrested without a warrant

for a crime shall be taken promptly before a judicial officer … for an initial hearing in court.”

During the initial hearing, the trial court is required to inform the accused of the nature of the

charges against him, the amount and conditions of bail, his right to a speedy trial, the

privilege against self-incrimination, and his right to retained or appointed counsel. See

Anthony v. State, 540 N.E.2d 602, 604 (Ind. 1989). In Griffith v. State, 788 N.E.2d 835, 840

(Ind. 2003), the Indiana Supreme Court noted that the United States Supreme Court has

specifically held that “a jurisdiction that provides judicial determinations of probable cause

within 48 hours of arrest will, as a general matter, comply with the promptness requirement

of Gerstein [v. Pugh, 420 U.S. 103, 114 (1975)].”1 788 N.E.2d at 840 (citing Riverside v.

McLaughlin, 500 U.S. 44, 56 (1991)).

        In addition, the Indiana Supreme Court has held that “‘illegal arrest or detention does

not void a subsequent conviction.’” Sawyer v. Clark, 576 N.E.2d 1254, 1255 (Ind. 1991)

(quoting Gerstein, 420 U.S. at 119). Instead, the normal remedy for a violation of Indiana

Code section 35-33-7-1 is the suppression of any evidence obtained during the unreasonable

delay. Stafford v. State, 890 N.E.2d 744, 749 (Ind. Ct. App. 2008). The defendant bears the

burden to prove the delay between his arrest and the initial hearing was both prejudicial and

unreasonable. See Anthony, 540 N.E.2d at 605.

        In the instant matter, the record demonstrates that Michaels was arrested on June 30,


        1
            In Gerstein, the United States Supreme Court held that an individual detained following a
warrantless arrest is entitled to a prompt judicial determination of probable cause as a prerequisite to any
further restraint on his liberty. 420 U.S. at 114.
                                                    17
2012. He first appeared before the trial court on July 2, 2012. Following this appearance,

Michaels remained incarcerated pending a formal initial hearing. On July 9, 2012, the trial

court conducted a formal initial hearing. Also on July 9, 2012, the State charged Michaels

with Class C felony carrying a handgun by a convicted felon, Class A misdemeanor carrying

a handgun without a license, and Class D felony criminal recklessness.

       Michaels claims that the delay between his arrest and his first appearance before the

trial court was unreasonable. He also claims that the delay between his first appearance and

the formal initial hearing was unreasonable. With respect to the alleged delay between the

time of Michaels’s arrest and his first appearance before the trial court, the record

demonstrates that Michaels was brought before the trial court within approximately forty-

eight hours of his arrest. Michaels was arrested on June 30, 2012, a Saturday. He was

brought before the trial court on July 2, 2012, the following Monday. With respect to the

alleged delay between Michaels’s first appearance before the trial court and his formal initial

hearing, the record demonstrates that the time that lapsed between the first appearance and

the formal initial hearing included both Independence Day, a federal holiday, and a normal

two-day weekend. Thus, the trial court was open, at most, three days between Michaels’s

first appearance before the trial court and his initial hearing.

       Even assuming that the alleged delays were unreasonable, we conclude that Michaels

has failed to prove that he was prejudiced by either of the alleged delays. Michaels does not

point to any evidence that was admitted during trial which he claims was discovered during

the alleged unreasonable delays. Likewise, he makes no argument regarding what benefit, if

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any, the State reaped from the alleged delays. In light of Michaels’s failure to prove that he

was prejudiced by either of the alleged delays, we further conclude that Michaels has failed

to demonstrate that his due process rights were violated by the alleged delays. See Anthony,

540 N.E.2d at 605 (providing that the defendant bears the burden to prove both that the

alleged delay was unreasonable and that he was prejudiced by the alleged delay).

                                      CONCLUSION

       In sum, we conclude that (1) the State presented sufficient evidence to negate

Michaels’s proffered necessity defense, (2) the trial court acted within its discretion in

denying Michaels’s stand-by counsel’s request for a continuance, (3) the evidence is

sufficient to sustain the elevation of Michaels’s conviction for carrying a handgun without a

license to a Class C felony, and (4) Michaels’s due process rights were not violated by the

alleged failure to promptly bring Michaels before the trial court for an initial hearing.

       The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.




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