McGowan v. State, 55A04-9106-CR-178
| Decision Date | 03 June 1992 |
| Docket Number | No. 55A04-9106-CR-178,55A04-9106-CR-178 |
| Parties | Randolph McGOWAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Patrick M. Schrems, Bloomington, for appellant.
Linley E. Pearson, Atty. Gen. of Indiana and Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Randolph McGowan was convicted by a jury of two counts of Defrauding a Financial Institution, 1 Class C felonies and two counts of Conversion, Class A misdemeanors. 2 The sentencing court merged each count of defrauding a financial institution with each count of conversion; accordingly, McGowan was sentenced to consecutive sentences of eight years on each count of defrauding a financial institution, for a total sentence of sixteen years. McGowan raises several issues on appeal; however, we reverse because McGowan should have been released when he was not brought to trial within seventy days of his motion for a speedy trial pursuant to Ind.Crim.Rule 4(B).
Indiana Crim.Rule 4(B) provides as follows:
(emphasis supplied). The following is a sequence of relevant events:
September 7, 1990--McGowan arrested
October 9, 1990--McGowan arraigned
--makes oral request for a speedy trial (pro se)
October 30, 1990--Appointed attorney files written request for a speedy trial
--trial set for December 17, 1990
December 10, 1990--Appointed counsel permitted to withdraw after a hearing;
--new counsel appointed
--trial reset for January 17, 1991
December 17, 1990--70 days from October 9 oral motion for speedy trial
December 27, 1990--petition for discharge filed (pro se)
January 7, 1991--petition for discharge denied after hearing
January 8, 1991--70 days from October 30 written motion for speedy trial
January 10, 1991--trial
McGowan argues that he should have been discharged because the State failed to bring him to trial within 70 days of his request for a speedy trial as required by Crim.R. 4(B). The State argues McGowan's petition for discharge was properly denied because: 1) the continuance was due to McGowan's acts; 2) the motion for discharge was premature; and 3) McGowan's constitutional right to a speedy trial was not violated. 3
The State argues that McGowan's actions caused appointment of new counsel, which in turn necessitated a continuance of the December 17 trial date. Therefore, the delay was caused by his actions and the rule was not violated. The record shows that McGowan's first counsel requested permission to withdraw on December 10, 1990, seven days before trial. At a hearing held the same day, counsel testified that McGowan had threatened him with legal action when counsel refused to engage in an irrelevant line of questioning during a deposition. Counsel testified he could not represent McGowan adequately under these conditions. There was also evidence that McGowan had pending lawsuits against former attorneys. The trial court permitted counsel to withdraw and appointed a second counsel for McGowan. Second counsel did not request a continuance; however, the court did hold an in-chambers conference with both counsel. Upon returning to the courtroom, the judge stated he discussed "calendars and such" with counsel in chambers. The State urges us to assume that second counsel requested the delay at the in-chambers conference; therefore, McGowan's actions, which resulted in second counsel being appointed, justify charging the delay to McGowan.
The mere change of counsel during the period of the rule does not in itself result in any delay in proceeding to trial, and the court may not assume new counsel needs more time to prepare for trial. Simpson v. State (1975), 165 Ind.App. 285, 332 N.E.2d 112. However, when the defendant requests a continuance because of a change in counsel, any delay will be charged to the defendant. Burdine v. State (1987), Ind., 515 N.E.2d 1085.
In Biggs v. State (1989), Ind.App., 546 N.E.2d 1271, both defendant Biggs and co-defendant Orchard changed counsel before trial. Bigg's new counsel entered his appearance eleven days before trial and Orchard's counsel entered an appearance over a month before trial. The state argued the delay in bringing the case to trial was caused by the change in counsel and should have been charged to the defendants. This court, noting that neither counsel requested a continuance, held that no part of the delay could be charged to the defendants.
The situation here is no different from the situation presented in Biggs, supra. Although new counsel was appointed seven days before trial, there is no record of a request for a continuance. Absent a request for a continuance, we cannot assume that new counsel needed more time to prepare for trial. Simpson, supra. Therefore, the delay cannot be attributed to McGowan.
The State argues that McGowan's first (oral) motion for a speedy trial on October 9 was superseded by his written motion made on October 30, 1990. Thus, according to the State, the 70-day period did not expire until January 8, 1991, instead of December 17, 1990. State cites Minneman v. State (1982), Ind., 441 N.E.2d 673, where the court stated:
Id. at 677. In Rutledge, cited by the Minneman court, the defendant filed three motions for early trial as follows: 1) November 2, 1978; 2) January 17, 1979; and 3) May 10, 1979. Each time he filed a motion, he requested to be tried within the 70-day period following the date on which the motion was filed. The defendant filed a motion for discharge on July 19, 1979, which the trial court denied. On appeal, the supreme court examined only whether Rutledge was entitled to discharge after the period following the May 10, 1979, motion, reasoning that each time the defendant filed a new motion for early trial (instead of objecting to the setting of the trial date beyond the 70-day period), he abandoned the previously-filed motions. In this way, Rutledge had abandoned the first two requests for early trial. The court affirmed the denial of his motion for discharge, holding that Rutledge had failed to timely object to the setting of the trial date beyond the 70-period after May 10, 1979.
Likewise, in Minneman, the defendant filed two motions for a speedy trial--one on August 9, 1979, and one on October 30, 1979. Citing Rutledge, supra, 426 N.E.2d 638, the court determined Minneman had abandoned his August 9 motion. The court did not detail why Minneman made a second motion for a speedy trial or whether he requested to be tried within seventy days from his second motion. However, from the court's reliance on Rutledge, we are led to believe that Minneman, like Rutledge, requested a trial date in his second motion outside the date of the first motion; thereby, abandoning the request of the first motion.
Here, there is no indication McGowan acted in a manner other than that consistent with his October 9 request to be tried within 70 days. At his arraignment hearing, McGowan orally requested a "fast and speedy trial". However, he was informed by the magistrate...
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McGowan v. State
...L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee. ON CRIMINAL PETITION TO TRANSFER GIVAN, Justice. In an opinion published at 592 N.E.2d 1243, the Court of Appeals reversed appellant's conviction of two counts of Defrauding a Financial Institution. The Court of Appeals' reversal wa......