Miller v. State
| Decision Date | 05 July 2022 |
| Docket Number | 21A-CR-1269 |
| Parties | Markus W. Miller, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Markus W. Miller, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
No. 21A-CR-1269
Court of Appeals of Indiana
July 5, 2022
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Pulaski Circuit Court The Honorable Jeanene E. Calabrese, Special Judge Trial Court Cause No. 66C01-1906-F4-12
ATTORNEY FOR APPELLANT Clifford M. Robinson Rensselaer, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
MEMORANDUM DECISION
Shepard, Senior Judge.
Statement of the Case
[¶1] This appeal examines the calculation of time after a speedy trial request is made. The defendant's actions and the substantial tolling of time due to the
COVID-19 pandemic delayed the trial date to nearly two years after the request was initially made.
[¶2] Markus W. Miller appeals after being convicted by a jury of one count each of Level 4 felony unlawful possession of a firearm as a serious violent felon,[1] Level 6 felony resisting law enforcement,[2] Level 6 felony unlawful possession of a syringe,[3] and Level 6 felony possession of methamphetamine.[4]
[¶3] Miller challenges the trial court's findings and rulings related to his Criminal Rule 4(B) motions for discharge, and raises an ineffective assistance of trial counsel claim as respects counsel's enforcement of Miller's speedy trial request. Finding that the court's speedy trial calculation is correct and that counsel was not ineffective in his representation of Miller, we affirm.
Facts and Procedural History
[¶4] The events leading to Miller's charges stem from his encounter with law enforcement officers attempting to arrest him on a warrant on the evening of June 13, 2019. Miller fled from officers and ran into the woods. After Miller's gun malfunctioned while attempting to fire it at the officers, he threw it to the
ground and surrendered. A search of the bag Miller was carrying produced syringes and other drug paraphernalia.
[¶5] The sequence of events regarding Miller's challenge to the court's findings and rulings on his speedy trial requests and his corresponding pro se motions for discharge, is quite lengthy and contains many moving parts. The following is a basic framework of the course of events as described by Miller, which will be fleshed out more fully in our discussion of Miller's arguments.
[¶6] On June 14, 2019, the State filed the present charges against him, and on June 25th Miller orally moved for a fast and speedy trial. It was granted by Pulaski Circuit Court Judge Mary Welker. Therefore, under Rule 4(B) the State was required to bring Miller to trial on or before September 3, 2019. On July 16, 2019, Miller's case was reassigned to Starke Circuit Court Judge Jeanene Calabrese as special judge. On July 22, 2019, the Starke County Clerk's Office received Judge Calabrese's appointment. Next, on September 9, 2019, Judge Calabrese entered a recusal order, and the case was reassigned to Starke Circuit Court Judge Kim Hall the next day. The Starke County Clerk's Office received the case file on September 16, 2019. On October 3, Miller filed for a change of judge. On October 15, 2019, Judge Calabrese was reassigned to the case, and on October 31, the court held a hearing with the parties to schedule trial dates.
[¶7] In his December 10, 2020 motion for discharge Miller claimed that, based on his calculations, as of October 31, 2019, and assuming a proper calculation of time charged to him, the State was forty-four days past Miller's speedy trial date
of September 3, 2019. Miller filed a memorandum in support of his motion along with a letter from his prior counsel, and a copy of the CCS.
[¶8] Then, on January 5, 2021, Miller filed a letter with the court in which he outlined the errors he believed were committed by Judge Calabrese, including declining to take his case for forty-nine days in contravention of Miller's interpretation of Criminal Rule 13(C). He also claimed that the recusals by Judge Welker and Judge Calabrese were wrongfully attributed to him in the speedy trial calculation. He maintained that the State was well beyond the window of time in which to hold his speedy trial.
[¶9] On January 15, 2021, the court held a status hearing addressing the pro se motions for discharge at which Miller presented his arguments once more. The court stated that the pro se filings would be noted and filed but left it to Miller's counsel to decide whether to file a motion for discharge with the court. After the hearing, the court's order asked why Miller was filing pro se motions with the court when he was represented by counsel. The court observed that Miller's claims were the same as before, that the court had listened to and reviewed audio recordings of Miller's previous hearing leading to the earlier denial, and that the latest filing presented no new argument. Miller now says that the court did not issue a formal ruling on his pro se motion for discharge.
[¶10] On March 4, 2021, the court reset Miller's trial for April 9 and 12, 2021 and the jury trial was held on those dates. Miller was found guilty as charged and he was later sentenced to thirty-four and one-half years. This appeal ensued.
Discussion and Decision
I. Criminal Rule 4(B)[5]
[¶11] Miller asks us to examine the court's allocation of the delays in setting his trial and its calculation under Criminal Rule 4(B).[6] "The broad goal of Indiana's Criminal Rule 4 is to provide functionality to a criminal defendant's fundamental and constitutionally protected right to a speedy trial." Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013). "It places an affirmative duty on the State to bring the defendant to trial, but at the same time is not intended to be a mechanism for providing defendants a technical means to escape prosecution." Id.
[¶12] If the defendant moves for a speedy trial, the State must bring him to trial within 70 days unless "a continuance within said period is had on [the defendant's] 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 delays because of the congestion of the court calendar." Ind. Crim. Rule 4(B)(1). A defendant cannot cause delay and then demand a speedy trial. Jackson v. State, 663 N.E.2d 766 (Ind. 1996).
[¶13] A trial court's decision denying discharge under Criminal Rule 4 is reviewed for clear error, after according the trial court's factual findings reasonable deference. Austin, 997 N.E.2d 1027. "We neither reweigh the evidence nor determine the credibility of witnesses." State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). "We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error." Id. "Clear error is that which leaves us with a definite and firm conviction that a mistake has been made." Id. (internal citations and quotations omitted). A question of law is reviewed de novo. Austin, 997 N.E.2d 1027.
[¶14] By the time charges in this case were filed, Miller had two other pending criminal cases. All three cases were originally filed in Pulaski Circuit, Judge Mary Welker's court. Miller's initial hearing in the present matter occurred on June 25, 2019, at which he requested a "fast and speedy trial." Tr. Vol. II, p. 12. Judge Welker granted the request, set Miller's trial for August 6-8, 2019, and appointed counsel. Next, on July 12, 2019, at a case management conference, Miller's appointed counsel alerted Judge Welker to the fact that she had previously represented Miller on criminal matters in 1997, 2000, and 2001. Judge Welker confirmed this information and stated for the record that she was recusing herself, "especially since Mr. Miller has brought it up as an issue." Id. at 36. The court said that the trial would not be held on the scheduled date and concluded, "that Cr-4 will be charged to him and the speedy trial will not then start to count until there's a new judge that's accepted and he'll have-it'll start to count at that time again." Id. Miller's counsel did not object, instead saying,
"I believe it's a prudent decision." Id. at 37. Judge Welker's recusal in this case and the other two cases was filed on July 15, 2019.
[¶15] Miller maintains that the delay produced by Judge Welker's recusal and events thereafter should not be charged against him. He says that because he was not present at the case management hearing he could not agree to his counsel's decision to raise the issue of Judge Welker's prior representation of him before she took the bench. However, our Supreme Court has held that once counsel is appointed, the defendant speaks to the court through his or her attorney. See Underwood v. State, 722 N.E.2d 828 (Ind. 2000). To do otherwise and require the court to respond to both the defendant and his counsel, would create a hybrid representation to which a defendant is not entitled. Id. Miller's counsel raised the issue on Miller's behalf and received the requested relief. Consequently, this argument is unavailing on appeal.
[¶16] Further, we agree with the State that, even if Judge Welker had sua sponte recused herself, the time to find a special judge would not have counted toward Miller's Criminal Rule 4(B) period because the delay is "akin to court congestion." See State v. Larkin...
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