Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           FILED
regarded as precedent or cited before                         May 29 2012, 8:41 am
any court except for the purpose of
establishing the defense of res judicata,                            CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
collateral estoppel, or the law of the case.                              tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

RICHARD D. MARTIN                                  GREGORY F. ZOELLER
Frankfort, Indiana                                 Attorney General of Indiana

                                                   BRIAN REITZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CORNELIO MARTINEZ,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 12A02-1111-CR-1023
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE CLINTON SUPERIOR COURT
                          The Honorable Justin H. Hunter, Judge
                              Cause No. 12D01-0701-FD-16



                                          May 29, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Cornelio Martinez appeals following his conviction for Class D

felony Operating a Vehicle While Intoxicated1 (“OWI”) and the determination that he is a

Habitual Controlled Substance Offender.2 Specifically, Martinez contends that the trial court

abused its discretion in granting the State’s motion to correct error without first granting him

the opportunity to respond and in admitting certain evidence at trial. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       At approximately 11:00 p.m. on January 27, 2007, Clinton County Sheriff’s

Department Reserve Deputy Rick Sturgess was parked on the side of State Road 28. The

area was a construction zone with multiple, clearly-displayed signs indicating that the speed

limit was forty-five miles per hour (“45 mph”). The road, which was normally four lanes and

had a speed limit of fifty-five miles per hour (“55 mph”), was limited to two lanes and had

the lower posted speed limit due to the construction and was marked as a no-passing zone.

       Deputy Sturgess observed Martinez’s vehicle traveling at a speed that he believed to

be in excess of the posted speed limit. Deputy Sturgess used his radar to measure Martinez’s

speed at 55 mph. As Martinez passed Deputy Sturgess’s cruiser, Deputy Sturgess saw

Martinez’s vehicle drift left of the solid center line on the road. Deputy Sturgess activated

his headlights and followed Martinez’s vehicle. While following Martinez’s vehicle, Deputy

Sturgess saw the tires on Martinez’s vehicle drift across the center line for a second time.

Deputy Sturgess activated his emergency lights and initiated a traffic stop. During the traffic


       1
           Ind. Code § 9-30-5-2 (2006).
       2
           Ind. Code § 35-50-2-10(b) (2006).
                                               2
stop, Deputy Sturgess collected evidence which indicated that Martinez was driving while

intoxicated.

        On January 29, 2007, the State charged Martinez with Class D felony OWI and Class

D felony operating a vehicle with an alcohol concentration equivalent of .15 or greater. The

State also alleged that Martinez is a habitual controlled substance offender. On March 27,

2008, Martinez pled guilty to Class D felony operating while intoxicated and admitted that he

is a habitual controlled substance offender. The trial court accepted Martinez’s guilty plea,

and on April 21, 2008, sentenced him to an aggregate five-year term of incarceration.

        On October 25, 2010, Martinez filed a petition for post-conviction relief. On January

3, 2011, the post-conviction court granted Martinez relief and issued an order setting aside

Martinez’s conviction, finding that the trial court had failed to advise him of his Boykin3

rights and had incorrectly advised him of the minimum possible sentence for the habitual

controlled substance offender enhancement. The trial court subsequently scheduled trial for

September 13, 2011.

        On August 18, 2011, Martinez filed a motion for discharge in which he alleged that

the State had failed to bring him to trial within the one-year time limitation set forth by

Indiana Criminal Rule 4(C). The trial court conducted a hearing on Martinez’s motion on

September 6, 2011. The trial court granted Martinez’s motion for discharge on September 7,

2011.


        3
            Boykin v. Alabama, 395 U.S. 328 (1969).


                                                      3
         On September 8, 2009, the State filed a motion to correct error in which it alleged that

the trial court had erroneously granted Martinez’s motion for discharge. Later that day, the

trial court conducted a telephonic hearing at which both the State and Martinez were

represented by counsel. This hearing was unrecorded. After considering the arguments

made by the parties during the telephonic hearing, the trial court granted the State’s motion to

correct error on September 9, 2009.

         On September 12, 2011, Martinez filed a motion to correct error and a motion to

suppress the evidence obtained as a result of the traffic stop. The trial court denied

Martinez’s motion to correct error.4 On September 13, 2011, the trial court conducted a

hearing on Martinez’s motion to suppress. The trial court denied the motion. The parties

agreed to incorporate the evidence from the suppression hearing into trial and proceeded to

trial.

         Following the conclusion of trial, the trial court found Martinez guilty of OWI and

operating with an alcohol concentration equivalent of .15 or greater, as Class A

misdemeanors, enhanced the convictions to Class D felonies, and found Martinez to be a

habitual controlled substance offender. On November 14, 2001, the trial court sentence

Martinez to one and one-half years for the OWI conviction, enhanced by three years by virtue

of the habitual controlled substance offender finding. This appeal follows.

                                   DISCUSSION AND DECISION


         4
            Martinez does not challenge the trial court’s denial of his motion to correct error or allege that the
trial court abused its discretion by denying it without first giving the State an opportunity to respond.

                                                        4
                               I. Motion to Correct Error

       Martinez contends that the trial court abused its discretion in granting the State’s

motion to correct error.

       A trial court has wide discretion to correct errors and to grant new trials. De
       Vittorio v. Werker Bros., Inc. (1994), Ind. App., 634 N.E.2d 528, 530; Ind.
       Crim. Rule 16(B). We will reverse only for an abuse of discretion. Id. An
       abuse of discretion will be found when the trial court’s action is against the
       logic and effect of the facts and circumstances before it and the inferences
       which may be drawn therefrom. Id. An abuse of discretion also results from a
       trial court’s decision that is without reason or is based upon impermissible
       reasons or considerations. Id.

Gregor v. State, 646 N.E.2d 52, 53 (Ind. Ct. App. 1994).

       The record demonstrates that Martinez’s conviction was overturned and the matter

remanded for trial after the post-conviction court issued an order granting Martinez relief.

The matter was subsequently scheduled for trial on September 13, 2011. Martinez filed a

motion for discharge on August 18, 2011, arguing that the State had failed to bring him to

trial within one year as required by Indiana Criminal Rule 4(C). The trial court granted

Martinez’s motion for discharge on September 7, 2011. On September 8, 2011, the State

filed a motion to correct error. Later that same day, the trial court conducted an unrecorded

telephonic hearing on the State’s motion. It is undisputed that both the State and Martinez

were represented at this hearing by counsel. After considering the parties’ arguments made

during the telephonic hearing, the trial court granted the State’s motion on September 9,

2011, and vacated its prior discharge order.

                              A. Opportunity to be Heard


                                               5
       Martinez argues that the trial court abused its discretion in granting the State’s motion

one day after it was filed because, in doing so, the trial court denied him the opportunity to

file a statement in opposition pursuant to Indiana Trial Rule 59(E). Trial Rule 59(E) provides

in relevant part that “Following the filing of a motion to correct error, a party who opposes

the motion may file a statement in opposition to the motion to correct error no later than

fifteen (15) days after service of the motion.” For its part, the State argues that the trial court

did not abuse its discretion because Martinez was represented by counsel at the telephonic

hearing conducted by the trial court and, as such, was afforded the opportunity to respond to

the State’s motion.

       In support of his claim, Martinez relies on a panel of this court’s opinion in Hubbard

v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998), in which the court concluded that

the trial court abused its discretion in granting the Appellee’s motion to correct error without

first giving the Appellant the opportunity to respond to the motion. While this case is similar

to Hubbard in that, in both cases, the trial court granted the moving party’s motion to correct

error before the other party had the opportunity to file a written statement in opposition to the

motion, see Hubbard, 690 N.E.2d at 1220 n.1, Hubbard is distinguishable. Unlike in

Hubbard, Martinez was given the opportunity to respond to the State’s motion to correct

error during a telephonic hearing at which he was represented by counsel. Given that Trial

Rule 59(E) was “designed to expressly create an opportunity for the opponent of the motion

to respond[,]” see Ralston v. State, 412 N.E.2d 239, 245 (Ind. Ct. App. 1980) (discussing the

purpose of Indiana Trial Rule 59(F)(1), which has since been recodified as Indiana Trial Rule

                                                6
59(E)), it would elevate form over substance to rule in Martinez’s favor when such an

opportunity was, in fact, afforded to him.

       In any event, any error in granting the State’s motion without first giving Martinez the

opportunity to file a written statement in opposition could, at most, be considered harmless

because as we discuss next, the relevant controlling authority demonstrates that the trial court

properly granted the State’s motion.

                     B. Applicability of Indiana Criminal Rule 4(C)

       “The Indiana Supreme Court has held that the time limitations of Indiana Criminal

Rule 4(C) do not apply on retrial.” State v. Montgomery, 901 N.E.2d 515, 519 (Ind. Ct. App.

2009) (citing Lahr v. State, 615 N.E.2d 150, 151 (Ind. Ct. App. 1993)). “Instead, where

retrial is required, a defendant must rely on his constitutional speedy trial right, which

requires that a defendant be tried within a reasonable time.” Id.

       Here, Martinez’s conviction for Class D felony OWI was set aside by the post-

conviction court because of trial court error. In light of the post-conviction court’s order

granting Martinez relief, the trial court scheduled a trial for September 13, 2011. Because the

September 13, 2011 trial was only necessary after Martinez’s conviction was set aside, we

believe that the September 13, 2011 trial was equivalent to a retrial following a reversal of an

individual’s conviction on appeal. Moreover, we do not see why this rule would not apply in

situations where a conviction following a guilty plea has been set aside. Thus, we conclude

that the trial court was required to conduct a trial within a reasonable time of the date the

post-conviction court’s order was issued. See id.

                                               7
              “In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
       (1972), the United States Supreme Court articulated a balancing test to be used
       when evaluating a speedy trial claim under the United States Constitution.”
       Sturgeon v. State, 683 N.E.2d 612, 616 (Ind. Ct. App. 1997), trans. denied.
       Indiana has employed the same balancing test to evaluate speedy trial claims
       pursued under our state constitution. Id. (citing Crawford v. State, 669 N.E.2d
       141, 145 (Ind. 1996); Fortson v. State, 269 Ind. 161, 379 N.E.2d 147 (1978)).
       The balancing involves an evaluation of both the State’s and the defendant’s
       conduct, taking into consideration such factors as: the length of the delay, the
       reason for the delay, the defendant’s assertion of his speedy trial right, and
       prejudice to the defendant. Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. at
       2192).

Id. at 520.

       Whether a particular delay in bringing a defendant to trial is such as to implicate the

defendant’s constitutional rights to a speedy trial depends largely on the peculiar

circumstances of the case. Lahr, 615 N.E.2d at 152 (citing Barker, 407 U.S. at 530-31;

O’Neill v. State, 597 N.E.2d 379, 381 (Ind. Ct. App. 1992)).

       “Until there is some delay which is presumptively prejudicial, there is no
       necessity for inquiry into the other factors that go into the balanc[ing test
       which courts should apply in determining whether a particular defendant has
       been deprived of his right to a speedy trial]. Nevertheless, because of the
       imprecision of the right to speedy trial, the length of delay that will provoke
       such an inquiry is necessarily dependent upon the peculiar circumstances of the
       case. To take but one example, the delay that can be tolerated for an ordinary
       street crime is considerably less than for a serious, complex conspiracy
       charge.”

Lahr, 615 N.E.2d at 152 (quoting Barker, 407 U.S. at 530-31) (emphasis added).

       Here, the post-conviction court issued its order granting Martinez relief on January 3,

2011, and the trial court scheduled the matter for a trial on September 13, 2011.

Approximately eight months passed between the post-conviction court’s order which


                                              8
necessitated the need for a trial and the trial date set by the court. It seems reasonable that

some delay would be necessary as both the State and Martinez would require time to prepare

for a trial relating to an incident that occurred nearly four and one-half years before

Martinez’s conviction was set aside. Martinez has not provided any authority suggesting that

an eight-month delay was presumptively prejudicial, and we find none.

       In addition, Martinez has failed to show that he suffered actual prejudice during the

intervening eight months between the date his conviction was set aside and the date his case

proceeded to trial.

       Prejudice, of course, should be assessed in the light of the interests of
       defendants which the speedy trial right was designed to protect. This Court
       has identified three such interests: (i) to prevent oppressive pretrial
       incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to
       limit the possibility that the defense will be impaired. Of these, the most
       serious is the last, because the inability of a defendant adequately to prepare
       his case skews the fairness of the entire system. If witnesses die or disappear
       during a delay, the prejudice is obvious. There is also prejudice if defense
       witnesses are unable to recall accurately events of the distant past. Loss of
       memory, however, is not always reflected in the record because what has been
       forgotten can rarely be shown.

Montgomery, 901 N.E.2d at 522 (quoting Barker, 407 U.S. at 532). The burden is on the

defendant to show he was actually prejudiced by the delay. Id. (citing Sturgeon, 683 N.E.2d

at 617).

       Martinez has not provided any argument or pointed to any evidence indicating that he

suffered any actual prejudice during the intervening eight months between the post-

conviction court’s order setting aside his conviction and the September 13, 2011 trial date. In

addition, Martinez does not claim that the eight-month delay is the result of a deliberate

                                              9
attempt by the State to delay the trial in order to hamper his defense. As such, he has failed

to carry his burden of showing that he was actually prejudiced by the eight-month delay. See

id.

        Because Martinez has failed to show that the eight-month delay was presumptively

prejudicial or that he was prejudiced by the eight-month delay, we conclude that it was not

unreasonable. Thus, the eight-month delay did not violate Martinez’s right to a speedy trial.5

See Montgomery, 901 N.E.2d at 519-23; Lahr, 615 N.E.2d at 152-54.

                                      II. Admission of Evidence

        Martinez also contends that the trial court abused its discretion in denying his motion

to suppress certain evidence obtained during the traffic stop because “no traffic violation was

committed,” and Deputy Sturgess “did not have reasonable suspicion that a crime was being

committed.” Appellant’s Br. p. 29. Although Martinez originally challenged the admission

of the evidence through a pre-trial motion to suppress, he appeals following a completed

bench trial and thus challenges the admission of such evidence at trial. “Accordingly, ‘the

issue is more appropriately framed as whether the trial court abused its discretion by

admitting the evidence at trial.’” Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007)

(quoting Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)).

        Our standard of review for rulings on the admissibility of evidence is
        essentially the same whether the challenge is made by a pre-trial motion to
        suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
        75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the

        5
          Having concluded that the eight-month delay following the post-conviction court’s order that set
aside Martinez’s conviction was not unreasonable and did not violate Martinez’s right to a speedy trial, we
need not consider the parties’ arguments relating to the allocation of days attributable to each party or waiver.
                                                      10
       evidence, and we consider conflicting evidence most favorable to the trial
       court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
       trans. denied. We also consider uncontroverted evidence in the defendant’s
       favor. Id.

Id.

       A trial court has broad discretion in ruling on the admissibility of evidence.

Washington, 784 N.E.2d at 587 (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind. Ct.

App. 2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of

evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at

273). An abuse of discretion involves a decision that is clearly against the logic and effect of

the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093,

1095 (Ind. Ct. App. 2000)).

       Martinez argues that the trial court abused its discretion in admitting the evidence

stemming from the traffic stop because he did not commit a traffic infraction and Deputy

Sturgess lacked reasonable suspicion to stop his vehicle. “‘It is well-settled that a police

officer may briefly detain a person whom the officer believes has committed an infraction or

an ordinance violation.’” Datzek v. State, 838 N.E.2d 1149, 1154 (Ind. Ct. App. 2005)

(quoting Peete v. State, 678 N.E.2d 415, 419 (Ind. Ct. App. 1997)). Where no traffic

infraction has been committed, the police officer may initiate an investigatory stop if the

officer has reasonable suspicion of criminal activity at the time he makes the stop. See

Barrett v. State, 837 N.E.2d 1022, 1027 (Ind. Ct. App. 2005).

       Here, Deputy Sturgess initiated the traffic stop after he measured Martinez’s vehicle


                                              11
traveling at a speed of 55 mph. It is undisputed that the normal speed limit for the stretch of

road on which Martinez was traveling was 55 mph. However, due to the ongoing road

construction and lane restrictions, signage indicated that the posted speed limit on the road

was 45 mph. Indiana Code section 9-21-8-41 indicates, in relevant part, that:

       (a) A person who drives a vehicle or street car may not disobey the instructions
       of an official traffic control device placed in accordance with this article unless
       otherwise directed by a police officer.
                                              ****
        (c) All traffic shall observe and obey traffic control devices including signals,
       signs, and warnings, and all directions, signs, or warning devices that may be
       given or displayed by a police officer or flagman to safely control traffic
       movement at a worksite and promote safety at a worksite.

       In arguing that the traffic stop was not proper, Martinez concedes that he was driving

at a rate of 55 mph at the time of the stop, but claims that his speed did not constitute a traffic

violation. Martinez argues that he was not obligated to follow the posted 45 mph speed limit

because there were no construction workers present at the time of the traffic stop and the

State has failed to prove that the establishing authority had determined that the safety of the

traveling public required enforcement of the worksite speed limit. See Indiana Code section

9-21-5-11(c) (providing that reduced speed is only required when construction workers are

present or when the establishing authority determines that the safety of the traveling public

requires enforcement of the worksite speed limit). We disagree and conclude that the

placement of a sign imposing a 45 mph speed limit indicates that the establishing authority

had deemed the lower speed limit necessary. As such, Martinez was required to follow the

posted 45 mph speed limit, and he committed a traffic violation by traveling in excess of the


                                                12
posted speed limit. In addition, Deputy Sturgess testified that he pulled Martinez’s vehicle

over after he saw the tires on the left side of Martinez’s vehicle twice cross the solid yellow

center line in violation of Indiana Code section 9-21-8-2(a). Accordingly, because Martinez

committed a traffic violation by admittedly traveling at a rate in excess of the posted 45 mph

speed limit and by twice crossing the solid the yellow center line in violation of Indiana Code

section 9-21-8-2(a), the traffic stop was justified and the trial court did not abuse its

discretion in admitting the evidence that stemmed from the traffic stop.6 See Datzek, 838

N.E.2d at 1154 (providing that “[i]t is well-settled that a police officer may briefly detain a

person whom the officer believes has committed an infraction”); Osborne v. State, 805

N.E.2d 435, 439 (Ind. Ct. App. 2004) (providing that the “decision to stop a vehicle is

reasonable where the police have probable cause to believe that a traffic violation has

occurred”), trans. denied.

        The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.




        6
         Having concluded that the traffic stop was justified because Martinez was traveling in excess of the
posted 45 mph speed limit and because his tires twice crossed the solid yellow center line in violation of
Indiana Code section 9-21-8-2(a), we need not consider whether, if no traffic violation occurred, whether
Deputy Sturgess had the reasonable suspicion of criminal activity necessary to conduct an investigatory stop.
                                                    13
