Bostic v. State
| Decision Date | 02 November 2012 |
| Docket Number | No. 12A02–1202–CR–154.,12A02–1202–CR–154. |
| Citation | 980 N.E.2d 335 |
| Parties | Joshua A. BOSTIC, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Mark Small, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Joshua A. Bostic ("Bostic") appeals his convictions for class C felony attempted battery by means of a deadly weapon,1 class C felony criminal recklessness,2 class D felony arson,3 class A misdemeanor criminal mischief,4 and class B misdemeanor criminal mischief5 as well as his adjudication of being an habitual offender.6 He raises only procedural issues relating to: (1) his right to discharge due to the scheduling of his jury trial more than one year after the date he was charged and arrested; and (2) the rules for appointing a special judge to preside over his jury trial. We affirm and remand.
On February 17, 2010, the State initially charged Bostic, under cause 12D01–1002–FA–28 ("Cause 28"), with class A felony attempted murder. At the time the charges were filed, Bostic was incarcerated in the Tippecanoe County Jail for a charge from that county.
On March 5, 2010, the trial court held Bostic's initial hearing. Bostic was transported from the Tippecanoe County Jail to Clinton County for the hearing and then returned to the Tippecanoe County Jail. During the initial hearing, the trial court appointed Scott Stuard as Bostic's pauper counsel and set Bostic's jury trial for June 1, 2010.7
On March 15, 2010, the State charged Bostic with the following additional charges: Count 2, class C felony attempted battery by means of a deadly weapon; Count 3, class C felony criminal recklessness; Count 4, class D felony arson; Count 5, class A misdemeanor criminal mischief; and Count 6, class B misdemeanor criminal mischief. The State also filed an information alleging that Bostic was an habitual offender. The trial court ordered Bostic to be transported from the Tippecanoe County Jail for an initial hearing on these additional charges on March 16, 2010, and kept the June 1st trial date setting.
During an April 22, 2010 pretrial conference, the parties informed the trial court that they were negotiating but needed another pretrial conference. The trial court set another pretrial conference for July and reset the jury trial for August 17, 2010.
On August 13, 2010, the trial noted that Bostic's jury trial needed to be rescheduled to November 16, 2010 due to court "congestion" caused by another case before the court. (App. 7).
Thereafter, Bostic sent a letter to and filed some pro se motions with the trial court.8 In response to this correspondence, the trial court issued orders, indicating that it would not consider ex parte communications from Bostic who was represented by counsel.
On November 12, 2010, the trial court held a pretrial conference and reset Bostic's trial for January 18, 2011. Again, the trial court rescheduled the trial date due to court "congestion" with another cause before the court. (App. 9, 81).
On January 18, 2011, the trial court again continued Bostic's trial due to "congestion" with another cause before the court. (App. 10, 91). The trial court reset Bostic's trial date for March 7, 2011. Bostic's counsel did not object to the trial date.
On January 31, 2011, the trial court appointed attorney James Knight as Bostic's pauper counsel to replace attorney Scott Stuard.9 Thereafter, on February 18, 2011, Bostic, via his new counsel, filed a motion for continuance, seeking time to conduct discovery. The continuance specifically noted that Bostic had "no objection to a continuance to the trial in this matter [.]" (App. 106). The trial court granted Bostic's motion for continuance and reset the jury trial for May 16, 2011.
On May 4, 2011, Bostic filed another motion for continuance, again pointing out that Bostic had "no objection to the continuance." (App. 111). The trial court granted Bostic's motion for continuance and reset the jury trial for September 13, 2011.
On June 15, 2011, Bostic filed a motion for reduction of his bond. The trial court held a hearing on the motion on June 22, 2011. The trial court took the matter under advisement and allowed the parties to submit supplemental evidence. The State submitted certified documents from Tippecanoe County, showing that Bostic was arrested in Tippecanoe County for class D felony possession of a controlled substance on February 17, 2010; that he pled guilty to that charge; and that, on July 9, 2010, the trial court imposed a sentence of two (2) years in the Department of Correction with one (1) year and seventy-nine (79) days suspended to probation. Thereafter, the trial court denied Bostic's motion for bond reduction.
On August 24, 2011, Bostic filed a motion to exclude testimony of one of the State's witnesses due to the witness's failure to appear for a deposition. On August 31, 2011, the trial court granted Bostic's motion to exclude. That same day, the State moved to dismiss the charges against Bostic due to the unavailability of and lack of cooperation from that same State's witness. The trial court granted the State's motion that same day.
Two weeks later, on September 15, 2011, the State refiled, under cause 12D01–1109–FA–144 ("Cause 144"), the same six charges and the habitual offender allegation against Bostic. On September 16, 2011, the trial court held an initial hearing, appointed Patrick Manahan as pauper counsel for Bostic, and scheduled a jury trial for January 3, 2012. Bostic did not object to the trial date.
On October 14, 2011, Bostic filed a motion to reduce his bond, and the trial court held a hearing on October 28, 2011.10 The trial court took the motion under advisement and instructed the parties to submit memoranda on the applicability of Criminal Rule 4(A) to the bond issue.11 Thereafter, the trial court entered an order denying Bostic's motion and concluding that Bostic had been detained in jail for less than the six months allowed under Criminal Rule 4(A).12
On October 28, 2011, Bostic filed a motion for early trial under Criminal Rule 4(B), which provides, in part, that a defendant "shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion...." Thus, the State had until January 6, 2012, to bring Bostic to trial. The trial date remained set for January 3, 2012.
On January 3, 2012, through January 6, 2012, the trial court held a jury trial. Senior Judge Thomas Milligan presided over the trial as special judge.13 Bostic did not object to Senior Judge Milligan serving as judge. The jury found Bostic not guilty of Count 1 but guilty of Counts 2 through 6. Thereafter, Bostic admitted to being an habitual offender.
On February 2, 2012, Senior Judge Milligan presided over Bostic's sentencing hearing. Bostic did not object to Judge Milligan serving as judge at the sentencing hearing. The trial court imposed an aggregate twenty (20) year sentence, ordering Bostic to serve sixteen (16) years executed at the Department of Correction followed by two (2) years suspended to community corrections and two (2) years suspended to probation.14
Bostic first argues that he was entitled to discharge under Criminal Rule 4(C) because his trial date occurred more than one year after he was charged and arrested.
A defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. Todisco v. State, 965 N.E.2d 753, 755 (Ind.Ct.App.2012), trans. denied. Criminal Rule 4(C) sets forth the time limits for which a defendant must be brought to trial and provides:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period 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 under 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. Any defendant so held shall, on motion, be discharged.
Our Indiana Supreme Court has explained that "when a trial court, acting within the one-year time limit of Criminal Rule 4(C), schedules trial to begin beyond the one-year limit, the defendant must make a timely objection to the trial date or waive his right to a speedy trial under that rule." State ex rel. Bramley v. Tipton Circuit Court, 835 N.E.2d 479, 481 (Ind.2005) (citing Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.1999), reh'g denied). See also Todisco, 965 N.E.2d at 755 (). As our Indiana Supreme Court has explained:
The purpose of [ Criminal Rule 4] is to assure early trials and not to discharge defendants.... [W]hen a ruling is made that is incorrect, and the offended party is aware of it, or reasonably should be...
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...4(C), a defendant must object to that setting or waive right to speedy trial under the rule for the ensuing delay. Bostic v. State, 980 N.E.2d 335, 340 (Ind.Ct.App.2012) (quoting State ex rel. Bramley v. Tipton Cir. Ct., 835 N.E.2d 479, 481 (Ind.2005) ). Thus, in Bostic, this Court held tha......
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