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                      Apr 25 2017, 10:04 am

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




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott Barnhart                                           Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart, LLP
Indianapolis, Indiana                                    Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dugniqio Forest,                                         April 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A04-1609-CR-1980
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1501-F2-566



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017      Page 1 of 9
                                             Case Summary
[1]   Dugniqio Forest appeals his conviction and sentence for Level 4 felony

      possession of cocaine. We affirm.


                                                     Issues
[2]   Forest raises two issues, which we restate as:


                         I.         whether the trial court properly granted the
                                    State’s request for a continuance pursuant
                                    to Indiana Trial Rule 4(D); and

                        II.         whether his eleven-year sentence is
                                    inappropriate.


                                                     Facts
[3]   In January 2015, Forest was incarcerated in the Vanderburgh County Jail when

      16.23 grams of cocaine were discovered in his cell in a box of cheese crackers.

      The State charged him with Level 2 felony dealing in cocaine and Level 5

      felony trafficking with an inmate. On January 28, 2015, an initial hearing was

      held, and Forest requested a speedy trial. A trial date of March 26, 2015, was

      set. However, on March 20, 2015, Forest requested a continuance of the trial

      because a hold had been placed on him by federal authorities due to pending

      federal gun charges. The trial court vacated the March 2015 trial date.


[4]   On January 26, 2016, Forest renewed his request for a speedy trial, and the trial

      court set the trial date for March 28, 2016. On March 15, 2016, the State filed a

      motion requesting DNA samples and fingerprinting from Forest. The State


      Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 2 of 9
      also requested a continuance of the trial pursuant to Indiana Trial Rule 4(D).

      The trial court granted the State’s request over Forest’s objection.1 At an April

      15, 2016 hearing, Forest suggested a trial date of June 5, 2016. The trial court,

      however, set the trial for May 23, 2016, and Forest did not object. On May 20,

      2016, the trial was rescheduled for June 2, 2016. A jury found Forest guilty

      only of the lesser-included offense of Level 4 felony possession of cocaine. The

      trial court sentenced Forest to eleven years in the Department of Correction to

      be served concurrent with his federal sentence. Forest now appeals.


                                                      Analysis
                                              I. Criminal Rule 4(D)

[5]   Forest argues that the trial court erred by granting the State’s motion for a

      continuance pursuant to Indiana Criminal Rule 4(D). Both the U.S. and

      Indiana Constitutions protect the right of an accused to a speedy trial. U.S.

      Const. amend. VI; Ind. Const. art. 1, § 12. “The speedy-trial right is a

      fundamental principle of constitutional law that has been zealously guarded by

      our courts.” Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012) (internal

      quotations omitted). Indiana Criminal Rule 4 generally implements the

      constitutional right of an accused to a speedy trial and provides:

                 If 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



      1
          We were not provided with a transcript of the March 15, 2016 hearing.


      Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 3 of 9
              motion, except where a continuance within said period is had on
              his motion, or the delay is otherwise caused by his act, or where
              there was not sufficient time to try him during such seventy (70)
              calendar days because of the congestion of the court calendar.
              Provided, however, that in the last-mentioned circumstance, the
              prosecuting attorney shall file a timely motion for continuance as
              set forth in subdivision (A) of this rule. Provided further, that a
              trial court may take note of congestion or an emergency without
              the necessity of a motion, and upon so finding may order a
              continuance. Any continuance granted due to a congested
              calendar or emergency shall be reduced to an order, which order
              shall also set the case for trial within a reasonable time.


      Ind. Crim. R. 4(B)(1). In Austin v. State, 997 N.E.2d 1027, 1038-39 (Ind. 2013),

      our supreme court explained:

              Criminal Rule 4(B) presents at least three hurdles at the trial
              court level: First, when a criminal defendant files a motion for a
              speedy trial, the trial court must set the defendant’s case for trial
              within seventy days—which might require, to an extent we
              discuss below—a re-prioritization of its current caseload.
              Second, if the trial court finds it cannot accomplish this
              prioritization and bring the defendant to trial within seventy days
              because of court congestion, it may order a continuance—and
              that finding of congestion is then subject to challenge by way of
              the defendant’s motion for discharge. And third, if the trial court
              orders such a continuance, it still must keep sight of the
              defendant’s constitutional right to a speedy trial—and Rule 4(B)
              therefore permits the continuance only to the extent that the
              defendant proceeds to trial within a reasonable time after the
              close of the seventy-day window.


[6]   Indiana Criminal Rule 4(D), which extends the seventy-day speedy trial

      deadline under certain circumstances, provides:


      Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 4 of 9
              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.


[7]   Any exigent circumstances may warrant a reasonable delay beyond the

      limitations of Criminal Rule 4. Otte v. State, 967 N.E.2d 540, 545 (Ind. Ct. App.

      2012), trans. denied. “The reasonableness of such delay must be judged in the

      context of the particular case.” Id. “‘Rule 4(D) does not mandate the evidence

      be essential or unique, only that it be unavailable and that the State be entitled

      to present it.’” Wilhelmus v. State, 824 N.E.2d 405, 413 (Ind. Ct. App. 2005)

      (quoting Smith v. State, 502 N.E.2d 485, 488 (Ind. 1987)). We review the trial

      court’s decision to grant an extension under Rule 4(D) for an abuse of

      discretion. Smith v. State, 982 N.E.2d 393, 401 (Ind. Ct. App. 2013).


[8]   We first address the State’s argument that Forest waived this issue. According

      to the State, Forest did not object to the trial date set during the April 5, 2016

      hearing and did not reassert his objection to the State’s continuance. The State

      also notes that Forest never filed a motion for discharge. We recently addressed

      the conflict in cases dealing with waiver in Criminal Rule 4 arguments. See

      Miller v. State, No. 28A04-1603-CR-634, slip op. at 12-14, __ N.E.3d __ (Ind.

      Ct. App. 2017). We noted some cases have found waiver when the defendant

      failed to make a motion for discharge, but some cases have found that an

      Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 5 of 9
       objection to the scheduling of a trial date outside the Rule 4 limits was

       sufficient. Id. Similarly, here, Forest did not file a motion for discharge and did

       not object at the time the trial court reset the trial date. He did, however, object

       to the granting of the State’s motion for a continuance pursuant to Rule 4(D).

       Given the current conflicting state of affairs on this question, we will err on the

       side of addressing Forest’s claim of error on the merits.


[9]    Forest withdrew his first motion for a speedy trial and did not renew his speedy

       trial motion until January 26, 2016. On March 4, 2016, the State requested that

       the Indiana State Police test the baggie and the box of cheese crackers for DNA

       and fingerprint evidence. The State Police Laboratory informed the State that it

       would need a minimum of forty-five days to complete its analysis. Shortly

       thereafter, the State filed its motion for a continuance pursuant to Rule 4(D).

       Forest argues that the State should have tested the evidence in the year while he

       was under federal hold and that the State did not request the testing until Forest

       indicated he would challenge the State’s case based on lack of testing.


[10]   In support of his argument, Forest relies on Chambers v. State, 848 N.E.2d 298,

       305 (Ind. Ct. App. 2006), trans. denied. In that case, the evidence at issue was a

       lab report that the prosecution did not have in its possession but which had

       been completed six days before the State moved to continue the trial. We

       found that the trial court abused its discretion by granting the motion for

       continuance because the evidence was, in fact, available and the State failed to

       make a reasonable effort to procure it. Here, however, the DNA and

       fingerprint reports were not available at the time of the State’s motion for a

       Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 6 of 9
       continuance. Further, given the withdrawal of his earlier speedy trial request

       and the year-long delay in the case due to federal charges against Forest, we

       cannot say the State’s failure to test the evidence at an earlier time was

       unreasonable. At the time of the State’s motion, the DNA and fingerprint

       evidence was unavailable, and the State was entitled to present it. We cannot

       say that the trial court abused its discretion by granting the State’s motion for a

       continuance, and Forest’s Rule 4 rights were not violated.


                                         II. Inappropriate Sentence

[11]   Forest argues that his eleven-year sentence is inappropriate and that an advisory

       sentence of six years is warranted in this case. Appellate Rule 7(B) provides

       that we may revise a sentence authorized by statute if, after due consideration

       of the trial court’s decision, we find that the sentence is inappropriate in light of

       the nature of the offenses and the character of the offender. When considering

       whether a sentence is inappropriate, we need not be “extremely” deferential to

       a trial court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.

       Ct. App. 2007). Still, we must give due consideration to that decision. Id. We

       also understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. Under this rule, the burden is on the defendant to

       persuade the appellate court that his or her sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[12]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived
       Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 7 of 9
       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[13]   The nature of the offense is that, while incarcerated, Forest possessed 16.23

       grams of cocaine in his jail cell. The fact that he possessed such a significant

       amount of the drugs in jail is egregious. As for Forest’s character, although he

       was only twenty-one years old, he had an extensive criminal history including a

       2016 federal conviction for felon in possession of a weapon, 2016 misdemeanor

       convictions for battery and resisting law enforcement, two 2014 misdemeanor

       convictions for resisting law enforcement, a 2013 felony conviction for

       possession of cocaine/methamphetamine or a schedule I or II narcotic drug, a

       2013 misdemeanor conviction for operating a motor vehicle without ever

       receiving a license, a 2013 felony conviction for receiving stolen property, and a

       2012 misdemeanor conviction for battery resulting in bodily injury. He also

       had several juvenile adjudications and had been placed in the Indiana Boys

       School. Although Forest alleges that he has been diagnosed with ADHD and

       bipolar disorder, there is no evidence in the record to indicate his diagnosis or

       demonstrate how the alleged diagnosis impacted his actions. Given the large


       Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 8 of 9
       amount of cocaine that Forest possessed and his criminal history, we cannot

       say the sentence imposed by the trial court is inappropriate.


                                                 Conclusion
[14]   The trial court did not abuse its discretion by granting the State’s motion for a

       continuance, and Forest’s sentence is not inappropriate. We affirm.


[15]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1609-CR-1980 | April 25, 2017   Page 9 of 9
