Jenkins v. State
| Decision Date | 25 May 2004 |
| Docket Number | No. 89A05-0305-CR-246.,89A05-0305-CR-246. |
| Citation | 809 N.E.2d 361 |
| Parties | Derrick JENKINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Swaray E. Conteh, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Derrick Jenkins appeals his conviction for Possession of Cocaine, as a Class A felony. Jenkins presents the following three issues for review:
1. Whether the trial court properly denied his Indiana Criminal Rule 4(B) motion for discharge.
2. Whether there was sufficient evidence to support the conviction.
3. Whether Jenkins received effective assistance of counsel.
We affirm.
On October 16, 2001, Wayne County Drug Task Force Officers Thomas Porfidio and Michael Britt were performing surveillance at a residence on Tenth Street in Richmond. When they arrived at the residence, they saw a vehicle parked outside. The engine was running, and a female was sitting in the front passenger seat. The officers then observed a man, later identified as Jenkins, leave the house and enter the driver's seat of the vehicle. Soon thereafter, another man approached the vehicle and engaged in conversation with Jenkins. During the conversation, the man gestured toward the officers' unmarked vehicle. Jenkins then sped away. Because Jenkins' vehicle was traveling at a high rate of speed, Officers Porfidio and Britt radioed for a marked police vehicle to make a traffic stop. As they continued to follow Jenkins' vehicle, Jenkins failed to signal and turned at unsafe speeds, causing the vehicle to swerve and slide. At times, the officers had to accelerate to fifty-five miles per hour to keep up with Jenkins. At one point, Jenkins slowed and veered toward the curb where his passenger threw three plastic bags out the front passenger window. Jenkins then drove about a block and a half further and stopped the vehicle. The officers placed Jenkins and his passenger, Tansy Carter, under arrest. The three bags, which had been discarded, were recovered and determined to contain 5.77 grams of cocaine.
On October 17, 2001, the State charged Jenkins with possession of cocaine and with being an Habitual Substance Offender.1 At the initial hearing on October 22, 2001, the trial court appointed Mark Jones of the Wayne County Public Defender's Office and his partner, John Dorenbusch, to represent Jenkins. Trial was set for February 25, 2002. During the pre-trial conference on January 30, 2002, defense counsel requested a continuance of the trial date. The court granted that request and reset the trial for April 29, 2002.
On April 16, 2002, defense counsel filed a motion to suppress, claiming that the evidence seized after Jenkins' arrest was the result of an illegal traffic stop. Two days later, defense counsel again requested a continuance of the trial date. That request was granted and the trial date was reset for October 14, 2002. During the evidentiary hearing on the motion to suppress held on April 29, 2002, defense counsel argued that the officers did not have reasonable suspicion or statutory authority to stop Jenkins' vehicle. He also asserted that the cocaine should have been suppressed because the decision to discard it was not truly voluntary. On June 24, the trial court denied the motion. Three days later, attorneys Jones and Dorenbusch filed a motion to withdraw, which the court granted on June 28, 2002. That same day the court appointed attorney Jeffrey Arnold to represent Jenkins.
On July 15, 2002, Jenkins filed a pro se motion for early trial. The trial court refused the motion for filing because Jenkins was represented by counsel. Two days later, attorney Arnold filed his written appearance. On August 2, 2002, Jenkins again filed a pro se early trial motion, which the trial court also refused. On September 6, 2002, attorney Arnold filed a motion to transcribe the suppression hearing. During a September 18, 2002 pre-trial conference, attorney Arnold orally moved for a continuance of the trial. In a written motion for continuance, filed on September 23, 2002, attorney Arnold stated that he was seeking the continuance on behalf of his client to secure information which might be "vital to his defense." The motion further indicated that Jenkins had authorized attorney Arnold to request the continuance. On September 26, 2002, the trial court rescheduled Jenkins' trial for March 3, 2003.
On October 23, 2002, attorney Dale Arnett filed a written appearance on behalf of Jenkins. Thereafter, attorney Arnold made a request to withdraw, which the court granted on November 15, 2002. On February 10, 2003, attorney Arnett filed a motion to suppress. In the brief in support of the motion, attorney Arnett argued that the stop violated statutory requirements that the officers wear a uniform and badge or drive a marked police vehicle. The motion, while it sought suppression of any evidence found on Jenkins or in his vehicle and the results of chemical tests and observations of indicia of intoxication, did not seek to exclude evidence of the cocaine.
During a hearing held on February 21, 2003, the State and attorney Arnett agreed that neither party would offer evidence of Jenkins' alcohol intoxication, a Vodka bottle found in the vehicle, money found on Jenkins, or the results of Jenkins' blood test. The court issued an order to that effect, which rendered attorney Arnett's motion to suppress moot.
On February 21, 2003, attorney Arnett filed a motion for discharge pursuant to Criminal Rule 4(B) and Article I, Section 13 of the Indiana Constitution. In his memorandum in support of the motion, attorney Arnett contended that Jenkins had properly asserted his early trial right through his pro se motions of July 15, 2002, and August 2, 2002. Attorney Arnett further argued that although Jenkins was represented by counsel at the time, he was entitled to file the pro se motions because of Article I, Section 13's guarantee to be heard by himself. Following a pre-trial conference held on February 26, 2003, the trial court denied that motion.
A jury found Jenkins guilty as charged, and the trial court sentenced him to thirty-seven years on the possession conviction. Jenkins pleaded guilty to the habitual substance offender allegation, and the trial court ordered him to serve three years consecutive to his sentence for possession. Jenkins now appeals.
Jenkins contends that the trial court erred by denying his motion for discharge filed pursuant to Criminal Rule 4. When a defendant moves for a speedy trial, he invokes the procedures and deadlines of Criminal Rule 4(B)(1), which provides in relevant part:
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 the congestion of the court calendar.
In Williams v. State, 631 N.E.2d 485, 486 (Ind.1994), our supreme court stated that "[t]he purpose served by Crim. R. 4(B) is to prevent a defendant from being detained in jail for more than 70 days after requesting an early trial." Here, there is no question that Jenkins was detained in jail for more than 70 days after either early trial request was made. Jenkins filed his motions on July 15, 2002, and August 2, 2002, and his trial occurred on March 3, 2003. However, the question remains whether Jenkins' pro se early trial motions triggered the time limits of Criminal Rule 4(B). We review this matter de novo. Kirby v. State, 774 N.E.2d 523, 530 (Ind.Ct.App.2002), trans. denied.
The transcript reveals that Jenkins attempted to file his first request for an early trial a couple of weeks after his first court-appointed attorneys were allowed to withdraw and two days before attorney Arnold, his second court-appointed attorney, filed his appearance with the court. The transcript further reveals that Jenkins attempted to file his second early trial request on August 2, 2002. Jenkins appears to contend that because he did not have either an attorney of record when his first motion was filed or actual notice of his second attorney's appointment when he filed the second motion, he had essentially asserted his constitutional right to represent himself by filing the pro se motions. In the alternative, Jenkins claims that he was asserting his desire to proceed with hybrid representation and invoking his state constitutional right "to be heard by himself" under Article I, Section 13.
Initially, we note that while attorney Arnold had not yet filed his written appearance with the court, he had been appointed as attorney for Jenkins by the court's order of June 28, 2002.2 Our supreme court has stated that "once counsel [is] appointed, [a defendant sp[eaks] to the court through counsel." Underwood v. State, 722 N.E.2d 828, 832 (Ind.2000). As counsel had been appointed before Jenkins filed either of his early trial motions, the court was not required to accept the motions for filing. See id.
We further conclude that Jenkins did not clearly and unequivocally assert his right to self-representation when he filed those motions. "As a prerequisite to the assertion of the right of self-representation, there must be a clear and unequivocal request to proceed pro se." Dowell v. State, 557 N.E.2d 1063, 1065 (Ind.Ct.App. 1990),trans. denied, cert. denied, 502 U.S. 861, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991). A clear and unequivocal request is made when a defendant objects to a court's order appointing counsel and...
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