Collins v. State

• Decision Date: 23 January 1975
• Docket Number: No. 3--1273A176,3--1273A176
• Citation: 163 Ind.App. 72,321 N.E.2d 868
• Parties: Andre Larue COLLINS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 868

321 N.E.2d 868

163 Ind.App. 72

Andre Larue COLLINS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--1273A176.

Court of Appeals of Indiana, Third District.

Jan. 23, 1975.

Rehearing Denied Feb. 27, 1975.

John L. Kappos, Merrillville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

The defendant was convicted of forgery after a trial by the court. Our opinion treats only the argument urged by defendant that he was denied procedural due process of law and his right to counsel.

The record discloses that defendant Collins was not apprehended for nearly two years after the affidavit was filed and the warrant issued. He was released on bond. Later, when the court set the case for trial, the defendant did not appear and an alias warrant was issued. ¹ On September 18, 1971, the alias warrant was executed and Collins, who was apparently unable to provide for the amount of his increased bond, was lodged in jail. Nothing further occurred for 146 days. Then on February 10, the court set the case for trial to commence March 3. On March 1, Collins was finally brought to court for arraignment and in-court advice regarding his constitutional rights. At this time it was determined that he was without funds and desired an attorney. A public defender was appointed to represent him. The next day, with trial already set to commence the following day, Collins' lawyer sought and was granted a continuance. Next, on May 8 Collins, pro se, filed a motion for discharge asserting both Indiana Rules of Procedure, Criminal Rule 4, and his rights under the Sixth Amendment. Hearing was set for May 18, but at the state's request, was continued. On May 25, the case was set for trial on June 14. On that date, with defendant having spent 269 days in jail, the court heard argument and denied the motion for discharge. It then proceeded to arraign and try the defendant.

I. SPEEDY TRIAL

Rule CR 4(A) provides that a criminal defendant shall not be detained in jail without trial for more than six months, except where a continuance was had on his motion, or the delay was (otherwise) caused by his act, or where congestion of the court calendar does not permit trial within the prescribed period.

The trial court denied Collins' motion for discharge since the March 3 setting, which was within the six month period, was not adhered to due to the continuance secured by Collins' attorney.

The purpose of Rule CR 4(A) as it applied to Collins has been stated to require a dismissal where the defendant has been incarcerated for more than six months without trial through no fault of his own. ² State ex rel. Dull v. Cir.Ct. of Delaware Co. (1973), Ind., 301 N.E.2d 519; State ex rel. Curry v. Davis (1968), 251 Ind. 504, 242 N.E.2d 512. See, also, Johnson v. State (1974), Ind., 313 N.E.2d 535.

Of course, ordinarily, the defendant may not divorce himself from the actions of his attorney in determining whether delay of the trial is properly chargeable to the defendant.

On the other hand, we have repeatedly held that a violation of a defendant's right to counsel occurs where counsel is appointed so shortly before the commencement of trial that there cannot have been time for effective preparation. Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Sweet v. State (1954), 233 Ind. 160, 117 N.E.2d 745; Bradley v. State (1949), 277 Ind. 131, 84 N.E.2d 580; Hoy v. State (1947), 225 Ind. 428, 75 N.E.2d 915; Hartman v. State (1973), Ind.App., 292 N.E.2d 293. Accordingly, had the defendant, rather than merely requesting a continuance, objected to proceeding to trial on March 3 on the grounds that his counsel had not been appointed sufficiently in advance to permit him to prepare, we would have little difficulty in finding that the continuance granted was not chargeable to defendant for purposes of CR 4(A). See, Easton v. State (1972), 258 Ind. 204, 280 N.E.2d 307. To hold otherwise could invite frustration of CR 4(A) through a court's double neglect in failing to provide prompt trials and prompt determination of a defendant's need of counsel.

However, it is also well established that CR 4, while intended to implement speedy trial, is not itself a constitutional guarantee. Bryant v. State (1973), Ind., 301 N.E.2d 179; Easton v. State, supra. Its violation does not, then present a question of fundamental error.

Therefore, since no objection was made to the trial court based upon the brevity of time to prepare, and the propriety of charging the defendant with the continuance granted on March 2 was not presented in the motion to correct errors or appellant's brief, such error is not available on this appeal. What, however, about Collins' right to speedy trial as guaranteed by the Sixth Amendment and Article 1, Sec. 12 of the Indiana Constitution?

In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court considered at length the considerations applicable to speedy trial which differentiate its consideration from the considerations involved in a defendant's other constitutional guarantees. The Court rejected, as improper, either a standard which would simply require trial within a specified time, or the demandwaiver standard, which would restrict consideration of the right to those cases where a demand for trial was made. The mojority concluded that determination of whether the right to speedy trial has been afforded depends upon a 'balancing test' to be made on an ad hoc basis in which the conduct of both the prosecution and the defendant are to be weighed. The Court then prescribed four guideposts for assessment in an individual case: (1) the length of delay; (2) the reason for delay; (3) the defendant's assertion of his right; and (4) prejudice occurring to the defendant.

We deem the standard announced in Barker equally applicable to Ind.Const. Art. 1, Sec. 12, as it provides the greatest balance between an accused's right to prompt disposition and the people's right to have meritorious cases prosecuted to conviction. ³

In Collins' case the length of delay, nine months from execution of the alias warrant to trial, is not itself inordinate. While the reason for delay should in large part be assigned to the court's failure to appoint counsel until the very eve of scheduled trial, it must also be noted that upon granting the continuance of March 2, there still remained some two weeks within which trial might have been held and the six month period adhered to. The record discloses no effort of secure such a setting, and, in fact, another two months elapsed before the defendant made any objection.

In considering the prejudice occurring to the defendant, the Court in Barker noted three interests to be considered: (i) prevention of oppressive pretrial incarceration; (ii) minimizing anxiety and concern of the accused; and, most importantly, (iii) limitation of the possibility that the defense will be impaired. It does not appear from the record before us that Collins' defense was in any manner impaired through the delay.

The Court in Barker cautioned:

'We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.' 407 U.S. 533, 92 S.Ct. at 2193.

While, therefore, we are offended by the course of events that beset Collins, we are unable to conclude that they combined to deprive him specifically of the constitutional guarantee to speedy trial.

II. RIGHT TO COUNSEL

We next consider whether the course of events in Collins' case amount to a deprivation of his right to counsel.

At the outset it is well to note that the American Bar Association Standards Relating to Providing Defense Services (Recommended Standards, 1967), § 5.1 provide:

'Counsel should be provided to the accused as soon as feasible after the is taken into custody, when he appears before a committing magistrate, or when he is formally charged, whichever occurs earliest. The authorities should have the responsibility to notify the defender or the official responsible for assigning counsel whenever a person is in custody and he requests counsel or he is without counsel.' (Our emphasis)

We express our approval of this concept. However, it does not purport to define the constitutional limitations which attend the right to counsel.

In turning to those limitations we first note that in the present case we are not concerned with those instances where an accused has affirmatively sought to exercise his right and has been denied. See, e.g. Suter v. State (1949), 227 Ind. 648, 88 N.E.2d 386. Usually such instances also contain Fifth Amendment ramifications. See, e.g. Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

Instead we are concerned with those applications recognizing the necessity of affirmative state action. ⁴ The basic premise, long enunciated, is that an accused is entitled to the benefit of counsel at every critical stage of the proceedings. Hamilton v. Alabama (1961), 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.2d 158. It is also settled that this includes arraignment. Goff v. State (1960), 240 Ind. 267, 163 N.E.2d 888.

However, definition of the prearraignment right to counsel is more elusive, owing in large part to the context in which deprivation of the right is asserted on appeal. Nevertheless, certain limitations appear.

In United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the Court found the right to counsel to exist at post-indictment pretrial lineups because of the critical effect of the identifications secured upon the trial.

However, in Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411...