Jones v. State
| Decision Date | 17 June 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-2292 |
| Citation | 171 N.E.3d 1063 (Table) |
| Court | Indiana Appellate Court |
| Parties | Jeremy M. JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Attorney for Appellant: R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, George P. Sherman, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Jeremy M. Jones ("Jones") appeals his convictions for four counts of dealing in a narcotic drug,1 three as Level 5 felonies and one as a Level 4 felony, and his aggregate sentence of thirty years. Jones raises the following issues for our review:
[2] We affirm in part, reverse in part, and remand with instructions.
[3] In November of 2018, Kalli Johnson ("Johnson") contacted the North Vernon Police Department regarding the sale of heroin by Jones. Tr. Vol. 2 at 176, 223-25. Johnson indicated to law enforcement that she wanted to work as a confidential informant ("CI") because she was "unhappy with drug dealers operating in North Vernon so she wanted to do her part to try to alleviate that." Id. at 202. Johnson had been a heroin user for at least four years before she became a CI and had known Jones for several weeks and had previously purchased drugs from him. Id. at 220-21, 225-26. Johnson would stop by Jones's house several times per week and had also met Jones's girlfriend, Junara Bailey ("Bailey"). Id. at 228.
[4] Acting as a CI, Johnson participated in four controlled buys during the month of November 2018. Id. at 176-77, 230. Johnson participated in her first controlled buy on November 11, 2018. Id. at 177. Before the buy, Johnson met with law enforcement, who searched her and her vehicle to make sure that she did not have any contraband; law enforcement also provided her with $150.00 to purchase a gram of heroin along with a cellular phone to use as a recording device. Id. at 177-79, 182-83, 233-35; State's Ex. 6. Johnson drove her vehicle to Jones's house where she met with Jones and Bailey Tr. Vol. 2 at 235, 245; State's Ex. 6. Johnson attempted to hand the $150.00 to Jones, but Jones indicated that Johnson should give the money to Bailey. Tr. Vol. 2 at 245. Bailey provided Jones with the heroin, which Johnson gave to law enforcement after the controlled buy had concluded. Id. at 177-78, 245. Laboratory testing of the substance later showed it contained heroin and fentanyl. Id. at 158.
[5] Johnson participated in three other controlled buys in November during which law enforcement gave her specified amounts of currency to purchase drugs, searched her and her vehicle before each buy to be sure she had no contraband, and provided a cellular phone to use to record the transactions. Tr. Vol. 2 at 188-90, 193-94; Tr. Vol. 3 at 46-49; State's Ex. 6. During the November 12, 2018 controlled buy at Jones's residence, Johnson was provided with $300.00 by law enforcement and was able to purchase 0.97 grams of heroin and fentanyl from Jones for $150.00 and returned with the remaining $150.00. Tr. Vol. 2 at 158, 188-92; State's Ex. 6. During the November 14, 2018 controlled buy, Johnson purchased an additional 1.95 grams of fentanyl from Jones for $300.00. Tr. Vol. 2 at 158-59; Tr. Vol. 3 at 46-49; State's Ex. 6. Finally, a fourth controlled buy was conducted on November 17, 2018, and Johnson purchased 0.96 grams of fentanyl from Jones for $150.00. Tr. Vol. 2 at 159, 193-98; State's Ex. 6.
[6] On December 21, 2018, the State charged Jones in a twelve-count information as follows: Counts 1 through 4, Level 4 felony dealing in a narcotic drug; counts 5 through 8, Level 6 felony possession of a narcotic drug; and counts 9 through 12, Level 6 felony maintaining a common nuisance. Appellant's App. Vol. 2 at 17-18. On July 17, 2019, the State filed a motion to amend the information, which the trial court granted. Id. at 58-60. In the amended information, three of the four Level 4 felony charges of dealing in a narcotic drug were reduced to Level 5 felonies. Id.
[7] Jones filed a "motion to extend time to file a continuance" on March 14, 2019, which the trial court granted on March 18, 2019. Id. at 4-5, 42-43. On March 21, 2019, Jones filed a motion to continue the jury trial that had been set for April 15, 2019, and in an April 17, 2019 order, among other matters, the trial court reset the date of the jury trial to July 29, 2019, ordered that discovery be completed by May 30, 2019, and that after the jury venire was called on July 5, 2019, there would be no further continuances granted. Id. at 44-45. On April 25, 2019, Jones filed a notice of deposition of "Confidential Informant 425," which was Johnson's assigned CI identifier. Id. at 46. A final attorneys conference report dated July 5, 2019 indicated the previously scheduled July 29, 2019 trial would be continued, and July 9, 2019 CCS entries showed the July 29, 2019 jury trial as cancelled. Id. at 7-8, 57. Jones filed another continuance on September 3, 2019, which was granted on September 8, 2019. Id. at 8, 63. On October 29, 2019, Jones's appointed trial counsel ("first attorney") filed a motion to withdraw due to a communication breakdown between himself and Jones. Id. at 67-69. On November 6, 2019, the trial court denied the motion to withdraw. Id. at 70.
[8] On March 5, 2020, the trial court issued an order on the State's motion for jury trial, which specified it would set the matter for a jury trial and that it would not continue the trial. Id. at 77. On April 14, 2020, the trial court issued an order, which among other matters, scheduled the jury trial to begin on October 5, 2020, required discovery to be concluded by August 6, 2020, and specified that no further continuances would be granted and that the trial would not be continued. Id. at 9, 78. On April 22, 2020, Jones's new trial counsel ("second attorney") filed a motion seeking discovery, which the trial court granted on April 24, 2020 and required the State to provide the requested discovery within thirty days of the date of the order.2 Id. at 79-86, 88-91.
[9] On September 2, 2020, Jones's second attorney filed a motion to continue the jury trial scheduled for October 5-7, 2020 and the final attorneys conference scheduled for September 11, 2020 on the basis that he needed to engage in additional discovery and that the State was agreeable to a continuance. Id. at 93. The following day, the trial court issued an order denying Jones's motion to continue citing its April 14, 2020 order in which it had specified that the trial would not be continued. Id. at 94. Jones filed a witness and exhibit list on September 4, 2020, listing Bailey as a witness, and on September 11, 2020, the parties indicated that following the final attorneys conference that they were prepared to go to trial on October 5, 2020. Id. at 95, 99.
[10] On September 25, 2020, the trial court issued an order stating that Jones's counsel had informed the court that Jones would accept a plea offer, but that Jones's counsel had subsequently contacted the court that same day, indicating that Jones would not be accepting any plea offer and wanted to proceed to trial. Id. at 100. The trial court noted that the matter remained set for trial as previously scheduled. Id. On September 30, 2020, Jones filed a notice of deposition for "Confidential Informant 425," the CI identifier for Johnson, which was to be conducted on October 1, 2020. Id. at 103. Following the October 1, 2020 deposition of Johnson, Jones filed a motion for continuance on the day of the trial to conduct additional discovery because: (1) during the deposition, Johnson said that Bailey gave her the drugs on certain instances; (2) Jones had not seen the "poor quality" audio and video footage of the controlled buys until October 1, 2020; and (3) Jones wanted to subpoena the officer who had arrested Johnson on June 4, 2020 for operating while intoxicated and leaving the scene of an accident because Johnson had initially denied the use of illegal drugs to the arresting officer but at her deposition had indicated that she was on drugs at the time. Id. at 105.
[11] On October 5, 2020, the trial court commenced a jury trial. Id. at 11-13. The trial court issued an order on October 6, 2020, noting "after discussion off the record," Jones's motion for continuance was denied.3 Id. at 127. At the conclusion of the trial, the jury found Jones guilty as charged. Id. On November 12, 2020, a sentencing hearing was held, and the trial court vacated the convictions for all of the offenses except for the four counts of dealing in a narcotic drug. Id. at 233. The trial court sentenced Jones to six years on each of the three Level 5 felonies and twelve years on the Level 4 felony, with all counts to run consecutively for an aggregate sentence of thirty years. Id. at 233-34, 248-49. Jones now appeals.
[12] Jones contends that the trial court abused its discretion when it denied his request for a continuance on the day of trial. As our Supreme Court noted in Gibson v. State :
Courts are generally reluctant to grant continuances in criminal cases merely to allow for additional preparation. But a defendant is statutorily entitled to a continuance where there is an absence of material evidence, absence of a material witness, or illness of the defendant, and the specially enumerated statutory criteria are satisfied. If none of those conditions are present, however, a trial court has wide discretion to deny a...
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