Miller v. State
| Decision Date | 17 May 1995 |
| Docket Number | No. 10A01-9312-CR-396,10A01-9312-CR-396 |
| Parties | Gary MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Dawn R. Elston, Chief Public Defender, Jeffersonville, for appellant.
Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant-defendant Gary Miller appeals his convictions on two counts of Burglary 1, as Class B felonies, and one count of Burglary, a Class C felony, claiming that: 1) he was entitled to a discharge under Ind.Crim.Rule 4(C), 2) he was denied his right to effective assistance of counsel, 3) the deputy prosecutor committed misconduct which denied him a fair trial, and 4) the trial court failed to adequately state its reasons for imposing consecutive sentences and failed to consider mitigating circumstances.
In January 1992, while Miller was in the Clark County Jail on charges pending in Floyd County, he asked to speak with a detective in order to "clear up" some burglaries in Clark County. Subsequently, Miller met with Clark County Police Detective Harold Kramer. After Detective Kramer advised him of his Miranda rights, Miller made a tape recorded statement in which he confessed his involvement in numerous burglaries. In that statement, Miller described his accomplices, the manner of entry, the interior of the buildings and homes, the items taken, and what happened to the stolen property. Thereafter, Miller and Detective Kramer drove around Clark County and Miller directed Detective Kramer to several of the places that Miller had burglarized. Detective Kramer later corroborated this information and confirmed that burglaries had taken place at those locations. As a result of this information, on March 16, 1992, the State charged Miller with five counts of burglary and one count of theft.
On July 27, 1993, Miller filed a motion for discharge under Crim.R. 4(C) which the trial court denied. That same day, Miller's jury trial began. During the State's opening statement, Miller objected to a comment made by the deputy prosecutor and moved for a mistrial. The trial court denied the motion. The jury convicted Miller of three counts of burglary and the trial court sentenced him to ten years for each of the two Class B felonies and five years for the Class C felony. The judge suspended five years of each of the Class B felonies and ordered the sentences to be served consecutively, for a total of fifteen years imprisonment.
Miller contends that the trial court erred when it failed to grant his motion for discharge under Ind.Crim.Rule 4(C). Specifically, Miller asserts that because he was not brought to trial within one year after his arrest, and he was not responsible for the delay, he should have been discharged pursuant to Crim.R. 4(C). Crim.R. 4(C) provides:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar....
Here, the record reveals that Miller was arrested on March 18, 1992. Thus, the State had a duty to bring Miller to trial on or before March 18, 1993, unless the period was extended by a delay caused by Miller's act or by court congestion. See State v. Smith (1986), Ind.App., 495 N.E.2d 539, 541. Miller's trial did not begin until July 27, 1993, almost one and a half years after his arrest.
The following chronology sets out the delays relevant to our decision and identifies which delays are attributable to the State.
Description Date State
Miller arrested, 3/18/92
trial set for 6/16/92 [backslash]
[backslash]
Trial reset for 8/25/92 6/16/92 / 152 days
/
Pre-trial conference, 8/17/92
plea agreement announced
Statement of plea 2/16/93
agreement filed
Parties appear for sentencing, 3/10/93
court rejects plea [backslash]
[backslash] 139 days
Trial set for 7/27/93 7/1/93 /
/
Trial begins 7/27/93 --------
291 days
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Initially, we note that the one year time period under Crim.R. 4(C) began to run on March 18, 1992, when Miller was arrested. However, the trial court found that the time period temporarily ceased running against the State on August 17, 1992, when the parties announced at the pretrial conference that a plea agreement had been reached. Miller contends that the trial court's determination is erroneous in that he is not responsible for the delay resulting from the announcement that the parties had entered into a plea agreement. As Miller asserts, delay is not chargeable to a defendant because he engages in informal plea negotiations with the State, unless it appears that the defendant's acts caused an actual delay in the scheduling of his trial. Smith, 495 N.E.2d at 542. In Smith, the State failed to set the case for trial because it was engaged in plea negotiations with Smith and was waiting for his response to the State's plea offer. The court held that the resulting delay was attributable to the State. Miller argues that, like the defendant in Smith, he was engaged in informal plea negotiations and did not cause any delay during this time and thus, this delay is attributable to the State. We disagree.
Unlike the defendant in Smith, Miller was not merely involved in informal plea negotiations, but he had informed the trial court that he had reached and entered into a plea agreement with the State. Since the chronological case summary reflected that a plea agreement had been reached at the pretrial conference, it would have been futile to try Miller during this time period. Thus, his action of agreeing to a plea caused a delay in the scheduling of his trial. Accordingly, the time period under Crim.R. 4(C) was extended during the period of delay between August 17, 1992, when the court was informed that the parties had entered into a plea agreement, and March 10, 1993, when the trial court rejected the plea agreement. See Butts v. State (1989), Ind.App., 545 N.E.2d 1120, 1123 ().
Finally, as the chart above indicates, the State is charged with a total of 291 days between Miller's arrest and his trial. Thus, the State brought Miller to trial within the confines of Crim.R. 4(C) and the trial court properly denied Miller's motion for discharge.
Miller contends that he was denied his right to effective assistance of counsel when his counsel failed to file certain motions requested by him and failed to file a motion for a continuance. Specifically, Miller asserts that the filing of these motions would have provided additional time to prepare his defense, which might have resulted in a different verdict. 2
In order to prevail on a claim of ineffective assistance of counsel, the defendant must prove that his counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for the deficient performance, the result of the proceedings would have been different. McCollum v. State (1991), Ind., 582 N.E.2d 804, 810, (citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). A defendant must overcome a strong presumption that his trial counsel provided effective assistance. Id. The decision whether to file particular motions is one of trial strategy and does not constitute ineffective assistance absent an express showing to the contrary. Little v. State (1986), Ind., 501 N.E.2d 447, 449.
We observe that Miller has failed to identify what type of motions he requested counsel to file and when, during the proceedings, he requested that counsel file a continuance. Thus, he has not shown the merits of these motions or their potential for aiding in his defense. Accordingly, Miller has failed to overcome the strong presumption that his counsel provided effective assistance. See id. Moreover, Miller has failed to demonstrate a reasonable probability that, but for his counsel's performance, the result of the trial would have been different. His assertion that the filing of these motions would have provided additional time to prepare his...
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