995 N.E.2d 19 (Ind.App. 2013), 87A01-1209-CR-431, Marchand v. State

Docket Nº87A01-1209-CR-431.
Citation995 N.E.2d 19
Opinion JudgePYLE, Judge.
Party NameBrian L. MARCHAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyMark K. Phillips, Boonville, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelCRONE, J., and BARNES, J., concur.
Case DateSeptember 25, 2013
CourtCourt of Appeals of Indiana

Page 19

995 N.E.2d 19 (Ind.App. 2013)

Brian L. MARCHAND, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 87A01-1209-CR-431.

Court of Appeals of Indiana.

September 25, 2013

Appeal from the Warrick Superior Court; The Honorable Robert R. Aylsworth, Judge; Cause No. 87D02-0911-FB-096; 87D02-1009-FB-090.

Mark K. Phillips, Boonville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION— NOT FOR PUBLICATION

PYLE, Judge.

STATEMENT OF THE CASE

In this discretionary interlocutory appeal, Brian L. Marchand (" Marchand" ) appeals from two orders— in two separate causes— denying his motions for discharge under Indiana Criminal Rule 4(C).

We affirm.

ISSUE

Whether the trial court erred by denying Marchand's two motions for discharge under Indiana Criminal Rule 4(C).

FACTS

On November 12, 2009, the State charged Marchand— under cause number 87D02-0911-FB-96 (" FB-96" )— with (1) Class B felony possession of methamphetamine within 1,000 feet of a public park; (2) Class D felony possession of precursors with intent to manufacture; and (3) Class A misdemeanor possession of paraphernalia. Marchand was not arrested for the charges in FB-96 until January 6, 2010. On January 8, 2010, Marchand posted bond but then remained in custody on a hold for a Spencer County case.

The trial court held Marchand's initial hearing in FB-96 on January 8, 2010. 1 During Marchand's initial hearing, Marchand told the trial court that he was planning to hire private counsel, pending the result of his Spencer County case. Marchand asked the trial court to set a progress hearing in one month so he could resolve that other case.

At a February 19, 2010 progress hearing, Marchand informed the trial court that he had not yet hired counsel, and he requested additional time to hire an attorney. The trial court granted Marchand's request and set the next progress hearing for March 19, 2010.

Marchand filed a motion to continue the March progress hearing, and the trial court granted Marchand's motion over the State's objection. At the April 9, 2010 progress hearing, Marchand requested a public defender. Marchand specifically requested Zach Winsett (" Attorney Winsett" ) because he was the same public defender representing Marchand in his Spencer County case. The trial court appointed Attorney Winsett and then set another hearing for May.

During the May 14, 2010 progress hearing, the parties agreed to set the next progress hearing for July 30, 2010. During that subsequent July 30th hearing, Attorney Winsett requested that the progress hearing be continued to September 3, 2010 because Marchand needed more time to consider a plea and wanted to take care of his Spencer County case before deciding on a plea. Marchand expressly agreed that he waived his rights to any Criminal Rule 4 objection to the time period between July 30 and September 3,2010.

In August 2010, Marchand changed his public defender to Mark Phillips (" Attorney Phillips" ). During the September 3, 2010 progress hearing, Attorney Phillips requested a continuance of the hearing until October 8, 2010 so he could get " up to speed" on all of Marchand's cases.2 (Tr. 25). 3 The State requested the cases be set for trial. The trial court granted Marchand's request to continue the progress hearing to October 8, 2010 and did not set any trial dates.

Prior to that October progress hearing, Marchand was charged with additional crimes. On September 24, 2010, the State charged Marchand— under cause number 87D02-1009-FB-90 (" FB-90" )— with (1) Class B felony dealing in methamphetamine; (2) Class C felony possession of methamphetamine over three grams and while in possession of a firearm; (3) Class C felony possession of precursors with intent to manufacture and while in possession of a firearm; (4) Class C felony possession of ammonia with intent to manufacture and while in possession of a firearm; (5) Class D felony maintaining a common nuisance; and (6) Class A misdemeanor resisting law enforcement. That same day, Marchand was arrested and had his initial hearing. During that initial hearing, Marchand stated that he wanted to see if Attorney Phillips would represent him in this new case. The trial court stated it would give Marchand an opportunity to verify his representation and then scheduled a progress hearing for FB-90 to occur with the FB-96 progress hearing on October 8, 2010.

At the October 8, 2010 hearing, Attorney Phillips entered an appearance for Marchand in FB-90. Attorney Phillips asked the trial court to reduce Marchand's bond, which the trial court denied. Attorney Phillips also requested the trial court to set another hearing for November 5, 2010 so that he could see how Marchand wanted to proceed in his two cases. Upon the parties' agreement, the trial court reset the progress hearing in both FB-96 and FB-90 for November 5, 2010.

At the November 5, 2010 hearing, Attorney Phillips informed the trial court that he was trying to find a long-term drug treatment option for Marchand and advised that he should have more information on that option by December 17, 2010. The State requested that the trial court set dates for the jury trials in FB-96 and FB-90. Marchand's attorney stated that he did not care about setting dates and that his availability for a first-setting jury trial would be in May. The State, however, insisted that the trial dates be set given the age of some of the pending cases.4 After Attorney Phillips rejected various proposed February trial dates for the setting of the FB-96 trial, the parties ultimately agreed to set the jury trial for March 7, 2011. Then, after Attorney Phillips rejected numerous proposed April trial dates for scheduling the FB-90 trial, the parties finally agreed to May 16, 2011 as the jury trial date. The trial court set progress hearings in FB-96 and FB-90 for December 17, 2010.

During the December 17, 2010 progress hearing, Attorney Phillips again asked the trial court to reduce Marchand's bond and requested that it include a condition that Marchand go into a residential treatment program. The trial court denied the bond reduction request and confirmed that the next progress hearing was set for February 14, 2011.

Later, in January 2011, Marchand posted bond in FB-90 and FB-96. On January 28, 2011, the State moved to continue the May 16, 2011 trial in FB-90 due to the unavailability of an essential State's witness. On February 3, 2011, the trial court granted the State's continuance motion over Marchand's objection and set a progress hearing for February 11, 2011 so that the parties could reschedule the FB-90 trial date.

Marchand did not appear at the February 11th hearing. Upon Marchand's motion, the trial court continued the February 11th hearing to February 18, 2011. 5 During that February 18th hearing, Marchand indicated that he " ha[d] no objection to the [S]tate's motion to continue the trial date" in FB-90. (App.5). Attorney Phillips then moved to continue the March 7, 2011 trial date in FB-96. Attorney Phillips informed the trial court that Marchand wanted to be evaluated for the drug court program and requested the trial court to delay Marchand's progress hearing to allow him time to complete the evaluation. The State indicated that it would not object to the drug court evaluation if Marchand waived his Criminal Rule 4 rights. Attorney Phillips agreed that the time " would be chargeable to the defense[,]" and Marchand agreed to waive his rights under Criminal Rule 4 as to the continuance of the trial dates. (Tr. 58). The parties then agreed to set the next progress hearing for March 4, 2011.

At the March 4, 2011 hearing, Attorney Phillips advised the trial court that the drug court evaluation was not yet complete and that the drug court would not make a final determination until a presentence investigation report (" PSI" ) had been prepared. The trial court ordered an updated PSI. When the State asked the trial court to reset the trial dates, Attorney Phillips asked the trial court to delay setting a trial date until a final determination on Marchand's drug court eligibility was entered. Attorney Phillips stated:

Well, I don't want to set— I'll be very candid with you. I'm trying to eliminate setting three and four trials on days only to, you know, have them go off at the last minute. I really would prefer to see whether or not he's going to be eligible. And then if he isn't, then I don't have any problem setting them for trial. It's just wreaking havoc on my civil calendar and I really am trying to get away from that process, if possible.

(Tr. 64). The trial court stated that it was going to set the cases for trial and offered Marchand's attorney multiple potential trial dates in July and August 2011. Attorney Phillips, however, rejected these dates because they conflicted with his calendar. After Attorney Phillips agreed to September 12, 2011 for the jury trial in FB-96, the State also agreed to the date if Marchand was waiving any Criminal Rule 4 issues. The trial court stated that Marchand had already waived those rights during the last hearing. Attorney Phillips contended that Marchand's waiver applied only to the time period that it took to complete Marchand's evaluation for the drug court and not until the date the trial was set. The trial court reminded Attorney Phillips that the trial dates were being set with...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT