Attebury v. State

• Decision Date: 21 December 1998
• Docket Number: No. 82A01-9803-CR-96,82A01-9803-CR-96
• Citation: 703 N.E.2d 175
• Parties: Robert Carl ATTEBURY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 175

703 N.E.2d 175

Robert Carl ATTEBURY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9803-CR-96.

Court of Appeals of Indiana.

Dec. 21, 1998.

Michael C. Keating, Keating Bumb Vowels & Laplante P.C., Evansville, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Geoff Davis, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

ROBB, Judge.

Robert Carl Attebury was convicted by a jury of two counts of rape, Class B felonies, burglary, a Class B felony, confinement, a Class D felony, intimidation, a Class D felony, and battery, a Class A misdemeanor. He also pleaded guilty to being an habitual offender. Attebury received a twenty-seven year sentence, and now appeals his convictions. We affirm in part and reverse and remand in part.

Issues

Attebury raises the following two restated issues for our consideration:

1. Whether his trial counsel was ineffective for failing to assert his speedy trial claim pursuant to Indiana Criminal Rule 4(B); and

2. Whether the trial court erred in permitting the State to add the habitual offender count after the time period allowed by Indiana Code section 35-34-1-5 without specifically finding "good cause" for the untimely addition.

Facts and Procedural History

Attebury was charged with rape, burglary, confinement, intimidation, and battery after he broke into the home of his former girlfriend and raped and beat her. Attebury was arrested, and on July 3, 1997, moved for a speedy trial. The trial court found that court congestion and the unavailability of defense counsel made it unreasonable to set Attebury's trial within the seventy-day period required by Criminal Rule 4(B), and set the trial for October 6, 1997. On September 30, 1997, the trial court, sua sponte, again found court congestion and reset Attebury's trial for October 16, 1997.

On October 13, 1997, the parties appeared before the court and the State recited into the record its final plea offer, whereby Attebury would plead guilty as charged and the State would recommend a total sentence of eight years and not file an habitual offender count. Attebury rejected the offer, and the State moved to file the habitual offender count. Attebury objected, but the trial court permitted the additional count to be filed. Attebury was convicted as charged and pleaded guilty to being an habitual offender. Attebury was sentenced to fifteen years for the first count of rape, enhanced by twelve years due to his habitual offender status. He was also sentenced to fifteen years for the second count of rape, fifteen years for burglary, two years for confinement, two years for intimidation, and one year for battery, all to be concurrent with the enhanced sentence for the first count of rape, for a total sentence of twenty-seven years.

Discussion and Decision

I. Speedy Trial

Attebury concedes that the October 6, 1997, trial date did not violate his Criminal Rule 4(B) right to a speedy trial because the Record contains a sufficient explanation by the trial court of the reasons causing court congestion. He claims, however, that the trial court impermissibly reset his trial from October 6 to October 16, 1997 and that his speedy trial rights were therefore violated. The Record shows the following entry in the Chronological Case Summary, dated September 30, 1997: "COMES NOW THE COURT AND DUE TO COURT CONGESTION, VACATES THE TRIAL DATE OF 10-6-97 AT 8:00 A.M. AND RESETS FOR TRIAL BY JURY ON 10-16-97 AT 8:00 A.M." R. 6.

By filing a motion for speedy trial, Attebury invoked the procedures and deadlines of Criminal Rule 4(B), which provides in pertinent part:

(1) Defendant in Jail--Motion for Early Trial. 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 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.

In Clark v. State, our supreme court addressed the court congestion exception to the time limits set forth in Criminal Rule 4(B):

Upon appellate review, a trial court's finding of congestion will be presumed valid and need not be contemporaneously explained or documented by the trial court. However, a defendant may challenge that finding, by filing a Motion for Discharge and demonstrating that, at the time the trial court made its decision to postpone trial, the finding of congestion was factually or legally inaccurate. Such proof would be prima facie adequate for discharge, absent further trial court findings explaining the congestion and justifying the continuance. In the appellate review of such a case, the trial court's explanations will be accorded reasonable deference, and a defendant must establish his entitlement to relief by showing that the trial court was clearly erroneous.

659 N.E.2d 548, 552 (Ind.1995). The court held that the defendant was entitled to relief because at the hearing on his motion for discharge, he presented evidence establishing that on the day the trial court entered an order finding congestion and continuing his trial, no conflicting jury trials were scheduled and no jurors had been summoned to appear on the previously scheduled trial date. Id.

However, unlike the defendant in Clark, Attebury did not object to the October 16 trial date, move for discharge pursuant to Criminal Rule 4(B), or challenge the trial court's finding of congestion by presenting evidence establishing that such finding was erroneous. In a similar situation, our supreme court held that a defendant who failed to present any evidence supporting his claim that the finding of court congestion was erroneous was not entitled to discharge under Criminal Rule 4(C). Bridwell v. State, 659 N.E.2d 552, 554 (Ind.1995). See also Vaillancourt v. State, 695 N.E.2d 606, 610 (Ind.Ct.App.1998), trans. denied (holding that defendant who moved for discharge but failed to present any evidence that the delay in bringing him to trial was not due to court congestion was not entitled to discharge pursuant to Criminal Rule 4(C)).

Attebury recognizes his failure to assert his speedy trial claim but, to avoid waiver, claims that his trial counsel was ineffective for failing to do so. Our supreme court has recently considered an ineffective assistance of counsel claim based on a failure to present a Criminal Rule 4(B) speedy trial claim to the trial court in Austin v. State, 682 N.E.2d 1287 (Ind.1997). The court stated that the defendant would prevail on his ineffective assistance of counsel claim upon establishing "that he had a sufficiently meritorious Rule 4 claim that most lawyers would have presented it and that he was seriously prejudiced by counsel's failure to do so." Id. at 1288. The court held that Austin's counsel was not ineffective for failing to pursue the speedy trial claim because at the time the trial court postponed Austin's trial, it entered a written order finding congestion which identified the case name and cause number of the other trial it was engaged in at the time, and the fact that another courtroom and a judge pro tempore were unavailable. Id. Based upon this written order, the supreme court held that the record supported the trial court's finding of congestion and "that trial counsel would have had little success in attempting to challenge it." Id. at 1289.

There are no findings in the Record before us to support the trial court's determination that court congestion existed and required postponing Attebury's trial. The trial court's written entry simply notes court congestion and reschedules the trial date. ¹ For this reason, we are unable to determine whether a reasonable lawyer would have challenged the trial court's finding of congestion. Under such circumstances, when an appeal requires factual determinations based upon evidence not in the record, the proper procedure is to request that the appeal be suspended or terminated so that a more thorough record may be developed through the pursuit of post-conviction proceedings. Lee v. State, 694 N.E.2d 719, 721 n. 6 (Ind.1998), cert. denied, --- U.S. ----, 119 S.Ct. 554, --- L.Ed.2d ---- (1998); Brewster v. State, 697 N.E.2d 95, 96 (Ind.Ct.App.1998). This procedure for developing a record for appeal is more commonly known as the Davis/Hatton procedure. See Hatton v. State, 626 N.E.2d 442, 442 (Ind.1993); Davis v. State, 267 Ind. 152, 156, 368 N.E.2d 1149, 1151 (1977). As this court recently explained:

the Davis/Hatton procedure involves a termination or suspension of a direct appeal already initiated, upon appellate counsel's motion for remand or stay, to allow a postconviction relief petition to be pursued in the trial court. If after a full evidentiary hearing, the postconviction relief petition is denied, the appeal can be reinitiated. Thus, in addition to the issues initially raised in the appeal, the issues litigated in the postconviction relief proceeding (e.g., ineffectiveness of trial counsel) can also be raised. In this way, even if the trial court denies the postconviction claim of ineffectiveness of trial counsel, a full hearing and record on the issue will be included in the appeal.

State v. Lopez, 676 N.E.2d 1063, 1069 (Ind.Ct.App.1997), trans. denied (citations...