Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
                                                                  Jul 16 2013, 8:23 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.


ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER                               GREGORY F. ZOELLER
Crown Point, Indiana                                 Attorney General of Indiana

                                                     JAMES B. MARTIN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

OSCAR GUILLEN, SR.,                                  )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )      No. 56A03-1204-CR-157
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                     The Honorable Daniel J. Molter, Judge (Newton County)
                     The Honorable Clarence D. Murray, Judge (Lake County)
                      Cause Nos. 56D01-1108-FD-73 & 45G02-0911-FD-128


                                            July 16, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                               Case Summary

          Oscar Guillen, Sr., appeals his convictions for two counts of Class D felony

intimidation and his status as an habitual offender. We affirm.

                                                     Issues

          Guillen raises four issues, which we restate as:

                 I.         whether the trial court properly denied his motion for
                            discharge under Indiana Criminal Rule 4(B);

                II.         whether the trial court properly denied his motion to
                            represent himself;

               III.         whether the trial court committed fundamental error by
                            allowing the State to amend the charging information;
                            and

                      IV.   whether the evidence is sufficient to sustain his
                            intimidation convictions.1

                                                     Facts

          In 2008, Lake County Superior Court Magistrate Nanette Raduenz was named as

the special judge in two civil cases filed by Guillen, Guillen v. Pollack and Guillen v.

Wilson. Guillen was incarcerated at the time. In Pollack, Magistrate Raduenz granted

the defendants’ motion to dismiss in March 2009, which terminated the case against all

the defendants. In Wilson, Magistrate Raduenz granted a motion to dismiss, which

terminated the case against all defendants except one.

          On April 29, 2009, Guillen filed a motion for change of judge in Wilson. In the

pro se motion, Guillen stated in part:


1
    Guillen does not challenge his status as an habitual offender.
                                                        2
                      Therefore it is clear to me that this she devil does not
              & is not going to “respect” this Plaintiff Mr. Guillen Sr’s
              United State’s constitutional rights. As this special piece of
              sh** so called judge, has drawn first blood in which the 2nd
              telephonic hearing just established this she devil’s
              provocation against my person. And if this piece of crap she
              devil continues to reside on my civil case and continues to
              disrespect & “provoke” this man Sir Oscar Guillen Sr. the
              first chance I get I am going to slap the holy f***ing sh** out
              of your f***ing a**! As then our “respect” for one another
              will be even. And if you retaliate I will beat the holy sh** out
              your f***ing a**! You f***ing b***h!

                     Wherefore, this plaintiff Mr. Oscar Guillen Sr. deeply
              prays this f***ing she devil piece of crap disqulifies herself
              off my f***ing civil rights case. As do I make myself
              perfectly clear “b***h!!!”

State’s Ex. 1B at 3-4 (grammar and spelling errors in original).

       On August 24, 2009, Guillen wrote to Judge Elizabeth Tavitas regarding

Magistrate Raduenz as follows:

                     Ms. Tavitas, I am writing & mailing you this pleading
              because this Ms. Raduenz is totally disrespecting me & my
              rights as her corrupted judgement dismissing my claims
              against the other defendants is a totally obvious of said
              disrespect in which I will not tolerate. As self defense will be
              my defense for protecting my property of my constitution has
              given me.

                      More so any & all other corrupted decision she make
              from here on is just provoking me in which is another defense
              I will claim when I beat the f***ing sh** out of her. Totally
              serious.

              (P.S.) mail me back a copy of all documents stamped.

              Thanks!

State’s Ex. 2 at 1 (grammar and spelling errors in original).


                                             3
        On November 4, 2009, the State filed criminal charges against Guillen in Lake

County.2 The warrant was served on Guillen on October 25, 2010, and the trial court

appointed a public defender to represent Guillen. On November 10, 2010, Guillen’s

counsel filed a motion to determine Guillen’s competency, and the trial court ordered that

Guillen be evaluated by appropriate mental health professionals.

        At hearings on January 14, 2011, and March 25, 2011, Guillen became disruptive

and was found in contempt of court. At a hearing on May 13, 2011, Guillen was again

disruptive and shouted racial epithets. On May 15, 2011, Guillen filed a motion to

withdraw the competency determination, which the trial court denied. In June 2011, the

trial court barred Guillen from appearing in the court due to his outbursts, and the trial

court also ordered that a third mental health professional examine Guillen.

        On July 8, 2011, Guillen filed a motion for a speedy trial. On July 15, 2011,

Guillen filed a motion for change of venue and a motion for substitution of counsel. Both

motions were granted, and the cause was transferred to Newton County on August 4,

2011. The trial court in Newton County set a trial for October 17, 2011, but the trial

court later vacated that trial date and ordered Guillen to undergo the third competency

examination. On November 17, 2011, the trial court held the competency hearing, and

Dr. Douglas Caruana and Dr. John Yarling testified that Guillen had a mental illness. Dr.

Yarling and Dr. Bhawani Prasad found that Guillen was competent to stand trial. The


2
  This charging information is not included in Appellant’s Appendix, and the CCS does not specify the
charges that were filed at that time. Guillen also claims that he filed a pro se motion for a speedy trial on
June 23, 2010. The CCS indicates that Guillen filed correspondence and an appearance on that date, but
the record does not establish that he filed a motion for a speedy trial on that date.


                                                     4
trial court found Guillen competent to stand trial. The trial court then set Guillen’s trial

for February 14, 2012.

       On December 2, 2011, Guillen filed a motion to proceed pro se.             Then, on

December 14, 2011, Guillen filed a pro se document entitled “Motion to Revive Pro-Se

Attorney Status with A Stand-By Counsel Attorney.” App. p. 89. Guillen also filed a pro

se document entitled “Motion to Withdraw Lake County Public Defender Division and

Counsels,” in which Guillen made numerous racial remarks regarding his counsel and

requested a Newton County public defender rather than a Lake County public defender.

Id. at 94. After a hearing, the trial court denied Guillen’s motion for a different public

defender. The trial court also entered an order concluding: “The Court having heard the

statements of the Defendant, the Court finds it to be in the best interest of the Defendant

to be represented by his court appointed attorney.” App. p. 112.

       On December 29, 2011, the State filed an amended information charging Guillen

with Count I, Class D felony intimidation for threatening Magistrate Raduenz in August

2009; Count II, Class D felony intimidation for threatening Magistrate Raduenz in April

or May 2009; and alleging that he is an habitual offender. On January 12, 2012, Guillen

filed a pro se “Motion to Correct Errors for the Dismissal of These Cases Under Criminal

Rule 4(B)(1),” which the trial court denied. Id. at 165.

       Guillen’s jury trial was held on February 14, 2012, and he was found guilty as

charged. The jury also found that he was an habitual offender. The trial court sentenced

him to concurrent sentences of two years on each conviction enhanced by forty-eight

months due to his status as an habitual offender. Guillen now appeals.

                                             5
                                         Analysis

                                    I. Criminal Rule 4

       Guillen first argues that the trial court erred by denying his motion for discharge

under Indiana Criminal Rule 4. We review a trial court’s ruling on a Criminal Rule 4

motion for an abuse of discretion. Curtis v. State, 948 N.E.2d 1143, 1149 (Ind. 2011).

       Both the United States Constitution and the Indiana Constitution protect the right

of an accused to a speedy trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012)

(citing 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.” Id. (quoting Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995)). Criminal Rule 4

generally implements the constitutional right of an accused to a speedy trial.           Id.

Subsection (B)(1) of Criminal Rule 4 is at issue here and provides, in part:

              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 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.




                                             6
Criminal Rule 4 places an “affirmative duty” on the State to bring a defendant to trial.

Cundiff, 967 N.E.2d at 1028. “By the same token, the purpose of Criminal Rule 4 is not

to provide defendants with a technical means to avoid trial but rather to assure speedy

trials.” Id.

        Guillen argues that he filed a motion for a speedy trial on June 23, 2010, and that

the 70-day deadline began to run on October 25, 2010, when the warrant was served on

him. However, the record does not reflect that Guillen filed a motion for a speedy trial

on June 23, 2010.         Rather, the CCS merely reflects that the trial court received

“Correspondence and Appearance” from Guillen, who was unrepresented at that time.

App. p. 26. The right to a speedy trial under Criminal Rule 4(B) is “not self-executing.”

Buchanan v. State, 263 Ind. 360, 364, 332 N.E.2d 213, 217 (1975). “It is the duty of the

Appellant to make a proper record and to bring a proper record before an appeals court.”

Id. The record does not show that the rule was invoked on June 23, 2010. Id.

        The record does indicate that Guillen’s counsel filed a motion for a speedy trial on

July 8, 2001.       However, Guillen had previously filed a motion to determine his

competency, and delays attributable to a defendant’s claim of incompetency are charged

against the defendant.3 Curtis, 948 N.E.2d at 1150 (discussing Criminal Rule 4(C)). The

trial court found Guillen competent on November 17, 2011. Thus, the time between July

8, 2011, and November 17, 2011, is chargeable to Guillen.                    Upon finding Guillen



3
  Guillen argues that the time during which his competency was being determined should not be
attributable to him because he had filed a motion to withdraw the competency determination. Guillen
cites no authority for the proposition that this time should not count against him and makes no argument
that the trial court should have granted his motion to withdraw the competency determination.
                                                   7
competent, the trial court set the trial date for February 14, 2012. The State concedes that

this was eighteen days beyond the 70-day period. However, “[w]hen a movant for an

early trial date on a date within the 70 day period does not then object to a trial date

which falls outside the limit, he has abandoned his request.” Townsend v. State, 673

N.E.2d 503, 506 (Ind. Ct. App. 1996). Guillen’s counsel did not object to this trial date,

and the argument is waived.

       Further, we note that Guillen did not file a proper motion for discharge. On

January 12, 2012, Guillen filed a pro se motion for dismissal under Criminal Rule 4(B).

However, once counsel is appointed, a defendant speaks to the court through counsel.

Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000).           Because counsel had been

appointed before Guillen filed his motion, the trial court properly denied the motion to

dismiss.

                       II. Guillen’s Request to Represent Himself

       Guillen argues that the trial court erred by denying his request to represent

himself. Guillen argues that he was improperly denied the right to represent himself

under the United States and Indiana Constitutions. Faretta v. California, 422 U.S. 806,

821, 95 S. Ct. 2525, 2534 (1975), held that the right of self-representation is implicit in

the Sixth Amendment to the United States Constitution, and Article 1, Section 13, of the

Indiana Constitution also guarantees this right. Stroud v. State, 809 N.E.2d 274, 279

(Ind. 2004). “A request to proceed pro se is a waiver of the right to counsel, and

consequently, there are several requirements to invoking the right of self-representation

successfully.” Id. “A defendant’s ‘request must be clear and unequivocal, and it must be

                                             8
[made] within a reasonable time prior to the first day of trial.’” Id. (quoting Russell v.

State, 270 Ind. 55, 64, 383 N.E.2d 309, 315 (1978)).

      Here, on December 2, 2011, Guillen filed a motion to proceed pro se. Then, on

December 14, 2011, Guillen filed a pro se document entitled “Motion to Revive Pro-Se

Attorney Status with A Stand-By Counsel Attorney.” App. p. 89. At a hearing on

Guillen’s motions, the following discussion occurred:

             The Court: And I would be very fearful of permitting you to
             – I’m fearful that it would be very harmful to you for you to
             serve as lead counsel –

             Guillen: Well, your Honor –

             The Court: – And conduct the examinations as opposed to
             your trained attorney.

             Guillen: That’s exactly why I’m asking for standby counsel.

             The Court: I understand that.

             Guillen: So then if I do get nervous or fumble up, I’ll just
             have my standby counsel take over or assist me if I am in
             debate of what I should say or what shall I do or what I
             should present. But however, I have been practicing or
             studying the law for eight years now with all my law books
             and research materials in prison. I dedicated my life to the
             law and I studied the law in the majority in civil cases seven
             days a week, twenty hours a day, seven years. That’s all I do.

             The Court: Do you think it might be more beneficial for him
             to serve as your public defender and you simply assist him?
             It still gives you the right to tell him what –

             Guillen: Well, that’s exactly, that’s exactly my point. I
             didn’t want to bring it across to the Court that way but since
             you did competently, that’s what I wanted to do. I wanted a
             standby counsel to control the whole trial. He was going to
             do it just like any other time, but I want the last say.

                                             9
                                           *****

                The Court: Well see, actually you just got your legal terms
                intertwined. So what we’re going to do here is he is your
                counsel and you can standby, instead of the other way around.

Tr. pp. 50-51. The trial court then entered an order concluding: “The Court having heard

the statements of the Defendant, the Court finds it to be in the best interest of the

Defendant to be represented by his court appointed attorney.” App. p. 112.

        Our supreme court has agreed that “the right to self-representation may be waived

through conduct indicating that one is vacillating on the issue or has abandoned one’s

request altogether.” Stroud, 809 N.E.2d at 281 (quoting Williams v. Bartlett, 44 F.3d 95,

100 (2d Cir. 1994)). Although Guillen initially asked to represent himself, he clarified at

the hearing that he really wanted counsel to represent him at the trial but that he wanted

the “last say.” Tr. p. 51. To the extent Guillen abandoned his request to represent

himself, Guillen has waived this argument.

        If Guillen instead was requesting some sort of hybrid representation, our supreme

court has recognized that “[t]he Sixth Amendment does not require a trial judge to permit

hybrid representation.” Henley v. State, 881 N.E.2d 639, 647 (Ind. 2008) (quoting

Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999)). Consequently, the trial court

properly denied Guillen’s request to represent himself.4


4
  We further note that “[a] trial judge may terminate self-representation by a defendant who deliberately
engages in serious or obstructionist misconduct.” German v. State, 268 Ind. 67, 73, 373 N.E.2d 880, 883
(1978). Guillen repeatedly engaged in serious misconduct during these proceedings, and that misconduct
also could have served as a basis for rejecting Guillen’s request to represent himself. Moreover, “a trial
court may deny a defendant’s request to act pro se when the defendant is mentally competent to stand trial
but suffers from severe mental illness to the point where he is not competent to conduct trial proceedings
                                                   10
                                   III. Amendment of Charges

        Guillen argues that fundamental error occurred when the trial court allowed the

State to amend the charging information. Guillen admits that he did not object to the

amendment. The failure to object waives an issue for review unless fundamental error

occurred. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012). “The fundamental error

doctrine provides a vehicle for the review of error not properly preserved for appeal.” Id.

“In order to be fundamental, the error must represent a blatant violation of basic

principles rendering the trial unfair to the defendant and thereby depriving the defendant

of fundamental due process.” Id. “Harm is not shown by the fact that the defendant was

ultimately convicted; rather harm is found when error is so prejudicial as to make a fair

trial impossible.” Id.

        Indiana Code Section 35-34-1-5 allows the charging information to be amended in

“matters of substance” at any time “before the commencement of trial . . . if the

amendment does not prejudice the substantial rights of the defendant.”                          For the

amendment to affect Guillen’s substantial rights, he must prove he was denied “a

reasonable opportunity to prepare for and defend against the charges.” Suding v. State,

945 N.E.2d 731, 735-36 (Ind. Ct. App. 2011) (citing Sides v. State, 693 N.E.2d 1310,

1313 (Ind. 1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206

(Ind. 2007)), trans. denied. The substantial rights of a defendant are not violated if the



by himself.” Edwards v. State, 902 N.E.2d 821, 824 (Ind. 2009). Although Guillen was found competent
to stand trial, two mental health professionals found that he suffered from a mental illness. However, the
trial court made no findings that Guillen’s mental illness was severe to the point that he was not
competent to represent himself, and we do not address the State’s argument on this point.
                                                   11
amendment does “not affect any particular defense or change the positions of either of the

parties.” Id.

       Guillen was initially charged on November 4, 2009. On December 29, 2011, the

State filed an amended information charging Guillen with Count I, Class D felony

intimidation for threatening Magistrate Raduenz in August 2009; Count II, Class D

felony intimidation for threatening Magistrate Raduenz in April or May 2009; and being

an habitual offender. Although the initial information was not provided to us in the

record, the parties seem to agree that the amended information added Count II. Guillen

argues that he was prejudiced because the evidence against him was doubled and because

the jury may have been confused regarding the distinction between retaliation for prior

lawful acts and potential future acts.

       The relevant issue is whether Guillen’s substantial rights were violated.      We

conclude they were not. Guillen’s defense to both charges was the same—Magistrate

Raduenz was not placed in fear and the threats were for future acts, not retaliation for a

prior lawful act. Thus, the amendment did not affect Guillen’s defense, and he has failed

to demonstrate that the amendment changed his position in any way. An increase in the

evidence against him and remote possibilities of jury confusion are simply insufficient to

demonstrate that his substantial rights were violated.            Further, Guillen has not

demonstrated fundamental error by showing that the amendment was so prejudicial as to

make a fair trial impossible.

                                IV. Sufficiency of the Evidence



                                              12
       Next, Guillen argues that the evidence is insufficient to sustain his convictions.

When reviewing the sufficiency of the evidence needed to support a criminal conviction,

we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d

1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and

any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if

there is substantial evidence of probative value such that a reasonable trier of fact could

have concluded the defendant was guilty beyond a reasonable doubt. Id.

       The offense of intimidation is governed by Indiana Code Section 35-45-2-1, which

provides that “[a] person who communicates a threat to another person, with the intent . .

. that the other person be placed in fear of retaliation for a prior lawful act” commits

intimidation. The offense is a Class D felony if the threat is communicated to a judge.

The State charged Guillen with intimidation for knowingly or intentionally

communicating a threat to Magistrate Raduenz with the intent that she “be placed in fear

of retaliation for a prior lawful act, to-wit: presiding over civil cases filed by [Guillen]

and making rulings against him in those cases.” App. p. 128.

       According to Guillen, the threats were not intended to place Magistrate Raduenz

in fear of retaliation for a prior lawful act. Rather, Guillen argues that the threats were

directed toward possible future acts by Magistrate Raduenz. We acknowledge that if the

alleged threat is aimed at a future action, then it is not retaliation for a prior lawful act.

Ransley v. State, 850 N.E.2d 443, 447 (Ind. Ct. App. 2006), trans. denied. However,

Guillen’s threats to Magistrate Raduenz constituted threats as retaliation for her prior

lawful acts.

                                             13
       Magistrate Raduenz completely dismissed one of Guillen’s civil actions and

dismissed all defendants except for one in another of his civil actions. Guillen then

threatened to beat Magistrate Raduenz as a response to her presiding over his cases and

her dismissal of his claims. Guillen’s threats of future harm to Magistrate Raduenz were

based on her prior lawful acts. We conclude that the evidence is sufficient to sustain

Guillen’s convictions for intimidation.

                                          Conclusion

       The trial court properly denied Guillen’s pro se motion for discharge under

Indiana Criminal Rule 4(B) and properly denied Guillen’s motion to represent himself.

Further, fundamental error did not occur when the trial court allowed the State to amend

the charging information, and the evidence is sufficient to sustain Guillen’s convictions.

We affirm.

       Affirmed.

NAJAM, J., and BAILEY, J., concur.




                                             14
