      MEMORANDUM DECISION
                                                                                  FILED
      Pursuant to Ind. Appellate Rule 65(D),
                                                                             Feb 23 2017, 9:24 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                   CLERK
                                                                              Indiana Supreme Court
      court except for the purpose of establishing                               Court of Appeals
                                                                                   and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Ricky Allen                                              Curtis T. Hill, Jr.
      Michigan City, Indiana                                   Attorney General of Indiana

                                                               Angela N. Sanchez
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ricky Allen,                                             February 23, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1508-CR-1120
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable John Surbeck, Jr.,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               02D06-1412-F5-160



      Barnes, Judge.


                                             Case Summary
[1]   Ricky Allen appeals his conviction for Level 5 felony battery. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017         Page 1 of 14
                                                           Issues
[2]   Allen raises six issues, which we consolidate and restate as:


                           I.       whether Allen’s right to a speedy trial was
                                    violated;

                           II.      whether the trial court properly admitted the
                                    deposition testimony of two witnesses;

                           III.     whether the trial court properly denied Allen’s
                                    motion to dismiss;

                           IV.      whether the evidence is sufficient to sustain
                                    Allen’s conviction; and

                           V.       whether the trial court properly calculated
                                    credit time.1

                                                            Facts
[3]   On December 23, 2014, Allen and his wife, Canethia Allen, argued while Tonia

      Freeman and her boyfriend were visiting them. Allen hit Canethia on the back

      of her head and threw her to the ground, which caused her to injure her elbow.

      After Freeman and her boyfriend left the house, Allen again hit Canethia,

      grabbed her neck, and repeatedly punched her. Freeman returned to get a coat

      that she had forgotten. She pulled Canethia out of the house when Canethia

      opened the door. The police arrived and arrested Allen.




      1
          Allen’s sixth issue seems to simply be a restatement of his other issues.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 2 of 14
[4]   The State charged Allen with Level 5 felony battery. Allen chose to represent

      himself during the proceedings. On January 2, 2015, Allen requested a speedy

      trial. On January 9, 2015, the trial court set Allen’s trial for March 24, 2015,

      and noted that the date was slightly outside of the “seventy (70) day rule” due

      to congestion on the court’s calendar. 1/9/15 Hrg. Tr. p. 24.


[5]   On March 24, 2015, Canethia and Freeman failed to appear for the trial. The

      State noted that Canethia had been cooperative throughout the proceedings,

      stated that she had been hospitalized the previous weekend, and requested an

      emergency continuance. The trial court granted the continuance and scheduled

      a status hearing for March 31, 2015. At the status hearing, the State discussed

      its unsuccessful efforts to locate Canethia. The trial court issued a bench

      warrant for her failure to appear and set the jury trial for May 19, 2015. At the

      status hearing, Allen filed numerous motions, including a motion to dismiss

      and a motion for discharge. At some point after the March 31st status hearing

      and before an April 14th status hearing, the trial court released Allen on his

      own recognizance on the battery charge, but he was still held on a pending

      probation revocation proceeding. See 3/31/15 Hrg. Tr. p. 15; 4/14/15 Hrg. Tr.

      p. 15. At the April 14th status hearing, the trial court told Allen that it would

      address his outstanding motions. The trial court noted that Allen had so many

      motions, many of which were redundant, that it was difficult “not to get lost in

      all the paper. . . .” 4/14/15 Hrg. Tr. p. 30. The trial court asked “what else is

      outstanding that you want to deal with, ‘cause we’re gonna deal with it today or

      it’s done.” Id. The trial court addressed several motions that had been filed by


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 3 of 14
      Allen, including a motion to dismiss the charges, which the trial court denied.

      The State also informed the trial court that it was concerned about Freeman

      appearing at the trial. The State had been unable to locate her and believed that

      she would not appear at the rescheduled trial.


[6]   On May 15, 2015, during a pre-trial conference, the State presented witnesses

      regarding its efforts to locate both Canethia and Freeman. The trial court found

      that the State had “made diligent effort to secure the attendance of these two (2)

      witnesses; that they have failed to appear and, at least tentatively, we do not

      expect them to appear on Tuesday [the trial date].” 5/15/15 Hrg. Tr. p. 49.

      The trial court found that, if Canethia and Freeman failed to appear at the trial,

      their depositions, which were previously taken by Allen, would “be permitted

      to be used for testimony in lieu of their appearance.” Id.


[7]   Allen’s jury trial began on May 19, 2015. Canethia and Freeman did not

      appear for the trial, and their redacted depositions were read to the jury. The

      jury found Allen guilty of battery, and he stipulated to the prior battery

      conviction. The jury then found Allen guilty of Level 5 felony battery. The

      trial court sentenced Allen to five years in the Department of Correction with

      no credit time and consecutive to his sentences for two probation revocations.

      Allen now appeals.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 4 of 14
                                                  Analysis
                                               I. Speedy Trial

[8]   Allen first argues that his speedy trial rights were violated. In speedy trial cases

      “where the issue is a question of law applied to undisputed facts, the standard

      of review—like for all questions of law—is de novo.” Austin v. State, 997

      N.E.2d 1027, 1039 (Ind. 2013). However, where a trial court makes a factual

      finding of congestion or emergency under Indiana Criminal Rule 4 based on

      disputed facts, the standard of review is the clearly erroneous standard. Id. at

      1040. “We neither reweigh the evidence nor determine the credibility of

      witnesses.” Id. “We consider only the probative evidence and reasonable

      inferences supporting the judgment and reverse only on a showing of clear

      error.” Id. “Clear error is that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id.


[9]   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
              motion, except where a continuance within said period is had on
              his motion, or the delay is otherwise caused by his act, or where

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 5 of 14
               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, 997 N.E.2d at 1038-39, 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.


[10]   Here, Allen filed his speedy trial request on January 2, 2015, and the seventy-

       day period would have expired on March 13, 2015. The trial court specifically

       found that its calendar was congested and set the case for trial on March 24,


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 6 of 14
       2015. Allen does not challenge the trial court’s determination that its calendar

       was congested. At the March 24, 2015 trial date, Canethia and Freeman did

       not appear, and the State requested a continuance to obtain Canethia’s

       presence. The trial court granted the State’s request for a continuance and

       noted that it had ninety days to bring Allen to trial. Allen was ultimately

       brought to trial on May 19, 2015.


[11]   The trial court was apparently referring to Indiana Criminal Rule 4(D), which

       extends the seventy-day speedy trial deadline under certain circumstances:

               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.


       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. “The absence of a key witness through no

       fault of the State is good cause for extending the time period requirements.”

       Wooley v. State, 716 N.E.2d 919, 925 (Ind. 1999).


[12]   Prior to the March 24, 2015 trial date, Canethia and Freeman had been

       cooperating and had participated in depositions. The State was aware that


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 7 of 14
       Canethia had been hospitalized over the weekend prior to the trial date, and the

       State was uncertain as to her reason for failing to appear. The trial court

       reasonably determined that a continuance was in order pursuant to Indiana

       Criminal Rule 4(D). Allen was then brought to trial on May 19, 2015, well

       within the ninety days allowed under Rule 4(D). We find no speedy trial

       violation. See Otte, 967 N.E.2d at 546 (holding that an extension under Indiana

       Criminal Rule 4(D) was justified).


                                       II. Admission of Depositions

[13]   Next, Allen argues that the trial court erred by admitting the depositions of

       Canethia and Freeman during Allen’s jury trial. Allen argues that the

       admission of the depositions in lieu of their testimony violated his right to

       confrontation. The Sixth Amendment to the United States Constitution

       provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to

       be confronted with the witnesses against him . . . .” “A witness’s testimony

       against a defendant is thus inadmissible unless the witness appears at trial or, if

       the witness is unavailable, the defendant had a prior opportunity for cross-

       examination.” Lehman v. State, 926 N.E.2d 35, 39 (Ind. Ct. App. 2010) (citing

       Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004)), trans. denied. In

       Crawford, the Supreme Court held that the admission of a hearsay statement

       made by a declarant who does not testify at trial violates the Sixth Amendment

       if: (1) the statement was testimonial and (2) the declarant is unavailable and the

       defendant lacked a prior opportunity for cross-examination. Howard v. State,

       853 N.E.2d 461, 465 (Ind. 2006). “The Court emphasized that if testimonial

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 8 of 14
       evidence is at issue, then ‘the Sixth Amendment demands what the common

       law required: unavailability and a prior opportunity for cross-examination.’”

       Id. (quoting Crawford, 541 U.S. at 68, 124 S. Ct. 1354).


[14]   Similarly, Indiana Evidence Rule 804 provides that former testimony is “not

       excluded by the hearsay rule if the declarant is unavailable as a witness.” Ind.

       Evid. R. 804(b). Former testimony is testimony that:


               (A) was given as a witness at a trial, hearing, or lawful
               deposition, whether given during the current proceeding or a
               different one; and


               (B) is now offered against a party who had—or, in a civil case,
               whose predecessor in interest had—an opportunity and similar
               motive to develop it by direct, cross-, or redirect examination.


       Ind. Evid. R. 804(b)(1). A declarant is “unavailable” if the declarant “is absent

       from the trial or hearing and the statement’s proponent has not been able, by

       process or other reasonable means, to procure” the declarant’s attendance. Ind.

       Evid. R. 804(a)(5)(A).


[15]   Here, the trial court admitted Canethia’s deposition and Freeman’s deposition

       in lieu of their live testimony. The State presented evidence during an earlier

       hearing regarding its extensive attempts to locate the women. Although both

       women had been cooperative earlier in the proceedings, they had suddenly

       stopped responding to phone calls and subpoenas. The trial court properly

       determined that the women were “unavailable” and that Allen, who took their

       earlier depositions, had a prior opportunity to cross-examine the women. See

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 9 of 14
       Thomas v. State, 966 N.E.2d 1267, 1272 (Ind. Ct. App. 2012) (holding that the

       trial court properly admitted a pre-trial deposition in lieu of a witness’s

       testimony), trans. denied. The trial court did not err by admitting the

       depositions.


                                           III. Motion to Dismiss

[16]   Allen next argues that the trial court erred by denying his motion to dismiss.

       According to Allen, he filed a motion to dismiss “all charges due to lack of

       evidence” on March 31, 2015. Appellant’s Br. p. 2. Allen contends that the

       trial court did not rule on or acknowledge his motion.


[17]   The Chronological Case Summary indicates that, on March 31, 2015, Allen

       filed several motions, including a motion to dismiss. Appellant’s App. Vol. I p.

       2(k). In the motion to dismiss, Allen argued that the charges against him

       should be dismissed because his speedy trial rights had been violated and

       because the State lacked enough evidence to prosecute as a result of Canethia’s

       and Freeman’s failure to appear on March 24, 2015. In the motion, Allen

       requested that the trial court dismiss the charges against him or grant him “an

       O.R. bond for an immediate release.” Id. at 36(a). At some point after the

       March 31st status hearing and before an April 14th status hearing, the trial

       court released Allen on his own recognizance on the battery charge, but he was

       still held on a pending probation revocation proceeding. See 3/31/15 Hrg. Tr.

       p. 15; 4/14/15 Hrg. Tr. p. 15. At the April 14th hearing, the trial court denied

       the motion to dismiss. See 4/14/15 Hrg. Tr. p. 45.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 10 of 14
[18]   The trial court, in fact, did address Allen’s motion to dismiss. Further, we have

       already held that Allen’s speedy trial rights were not violated. As for his

       argument that the State lacked enough evidence to prosecute, we disagree.

       Allen cites no authority for the proposition that he was entitled to dismissal

       prior to trial based on a lack of evidence simply because of Canethia and

       Freeman’s failure to appear at the March 24, 2015 trial date. The trial court

       properly continued the trial date and properly admitted their depositions at the

       May 19, 2015 trial. Allen’s argument fails.


                                      IV. Sufficiency of the Evidence

[19]   Allen argues that the evidence is insufficient to sustain his conviction. 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.


[20]   The State charged Allen with Level 5 felony battery. The charging information

       alleged that Allen “did knowingly or intentionally touch Canethia Allen in a

       rude, insolent, or angry manner, resulting in bodily injury” and that Allen had a

       prior battery conviction against the same victim. Appellant’s App. Vol. I p. 7.

       At the time of Allen’s offense, the statute provided that “a person who

       knowingly or intentionally . . . touches another person in a rude, insolent, or
       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 11 of 14
       angry manner” commits battery. Ind. Code § 35-42-2-1(b)(1) (amended by Pub.

       L. No. 65-2016, § 33 (eff. July 1, 2016)). The offense was a Class A

       misdemeanor if it resulted in bodily injury to any other person. I.C. § 35-42-2-

       1(c). The offense was a Level 5 felony if the “person has a previous conviction

       for battery against the same victim.” I.C. § 35-42-2-1(f)(4).


[21]   Allen argues that the evidence is insufficient to sustain his conviction because

       Canethia allegedly gave contradictory statements to the police and during her

       deposition. He also argues that the trial court erred by admitting her deposition

       at the jury trial. We have held that the trial court properly admitted the

       deposition. In the deposition, Canethia stated that Allen slammed her to the

       ground and hit her and that she suffered bodily injuries. Allen’s claim

       regarding contradictory statements is merely a request that we reweigh the

       evidence, which we cannot do. Bailey, 907 N.E.2d at 1005. The evidence is

       sufficient to sustain his conviction.


                                             V. Jail Time Credit

[22]   Allen argues that the trial court failed to give him jail time credit. The

       “[d]etermination of a defendant’s pretrial credit is dependent upon (1) pretrial

       confinement, and (2) the pretrial confinement being a result of the criminal

       charge for which sentence is being imposed.” Hall v. State, 944 N.E.2d 538, 542

       (Ind. Ct. App. 2011), trans. denied. “‘Pre-sentence jail time credit is a matter of

       statutory right, not a matter of judicial discretion.’” Id. (quoting Weaver v. State,

       725 N.E.2d 945, 948 (Ind. Ct. App. 2000)). “When a defendant is incarcerated

       on multiple unrelated charges at the same time, a period of confinement may be
       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 12 of 14
       the result of more than one offense.” Id. “If a person is incarcerated awaiting

       trial on more than one charge and is sentenced to concurrent terms for the

       separate crimes, he is entitled to credit time applied against each separate term.”

       Id. However, “‘[w]here a defendant is convicted of multiple offenses and

       sentenced to consecutive terms, the jail credit is applied against the aggregate

       sentence.’” Id. (quoting Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999)).


[23]   Allen argues that he was entitled to 188 days (December 23, 2014, to June 29,

       2015) for the time that he was incarcerated prior to sentencing. This issue was

       discussed repeatedly during the trial court proceedings. During this time

       period, Allen was also incarcerated for two probation revocation proceedings.

       At some point after the March 31st status hearing and before an April 14th

       status hearing, the trial court released Allen on his own recognizance on the

       battery charge, but he was still held on the pending probation revocation

       proceedings. See 3/31/15 Hrg. Tr. p. 15; 4/14/15 Hrg. Tr. p. 15. The trial

       court denied Allen’s request for credit time when it sentenced him in this action

       because the credit time was applied to the probation revocation proceedings,

       which were consecutive to the sentence in this action. On appeal, Allen has

       failed to demonstrate that he was entitled to additional credit time to be applied

       to his sentence in this action. Allen has failed to demonstrate that the trial

       court’s order was erroneous.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 13 of 14
                                                 Conclusion
[24]   Allen’s speedy trial rights were not violated, and the trial court properly

       admitted depositions of Canethia and Freeman in lieu of their testimony. The

       trial court also properly denied Allen’s motion to dismiss and properly

       calculated his credit time. Finally, the evidence is sufficient to sustain Allen’s

       conviction. We affirm.


[25]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1120 |February 23, 2017   Page 14 of 14
