Payne v. State

• Decision Date: 08 December 1995
• Docket Number: No. 49A02-9405-CR-00288,49A02-9405-CR-00288
• Parties: John PAYNE, Appellant (Defendant), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 635

658 N.E.2d 635

John PAYNE, Appellant (Defendant), v. STATE of Indiana, Appellee.

No. 49A02-9405-CR-00288.

Court of Appeals of Indiana.

Dec. 8, 1995.

Transfer Denied Jan. 31, 1996.

S. Sargent Visher, Indianapolis, for appellant.

Pamela Carter, Attorney General of Indiana, Joseph F. Pieters, Deputy Attorney General, Office of the Attorney General, Indianapolis, for appellee.

OPINION

SULLIVAN, Judge.

John Payne (Payne) appeals his jury trial convictions of robbery as a class B felony, ¹ resisting law enforcement, ² and the determination that he is an habitual offender. ³

We affirm.

Payne presents two issues for our review, which we restate as follows:

(1) whether he is entitled to discharge because the State violated his right to an early trial;

(2) whether the trial court erred in finding him to be an habitual offender.

The facts most favorable to the trial court's judgment reveal that on January 13, 1993, a person matching Payne's description robbed the Safeway grocery store at the corner of 56th and Illinois Streets in Indianapolis, taking approximately $200 from a cash register. A police officer who happened to be across the street noticed the suspect running from the store. The officer gave chase, radioed for assistance, and ordered the suspect to stop. The suspect fled by car for a short distance, then exited the car and headed west in the direction of Capitol Avenue. Officers apprehended Payne as he walked along Capitol Avenue a few blocks from the scene of the robbery. At that time, Payne had in his possession $206.25. The officer who initially gave chase identified Payne as the person whom he saw running from the store. The store clerk also identified Payne as the robber during a show-up identification.

On January 14, 1993, the State charged Payne by information with robbery as a class B felony and resisting law enforcement. On January 21, 1993, Payne filed a motion for an early trial, which the trial court granted four days later, on January 25. On February 5, 1993, the State amended its information to add a charge of robbery as a class C felony. This additional count alleged the same act as alleged in the B felony account except that use of a deadly weapon was omitted. On April 6, 1993, the trial court set the trial date for May 10, 1993.

On May 7, the trial court vacated the May 10 date due to a congested calendar, resetting the trial for June 21, 1993. Subsequently, the trial court vacated and reset trial dates four more times, each time due to a congested calendar. ⁴ The fifth resetting resulted in a trial date scheduled for November 8, 1993. On November 8, however, the State declined prosecution and the trial court ordered all counts against Payne dismissed. ⁵ Later that same day, the State re-filed the charges against Payne under a new cause number.

Two days later, on November 10, Payne filed a second motion for an early trial. On November 17, the trial court set a trial date for December 27, 1993. On December 2, Payne filed a motion for discharge pursuant to Ind.Crim. Rule 4(B), which the trial court denied. ⁶ Trial was held on December 27, 1993, after which a jury found Payne guilty of robbery as a class B felony, and of resisting law enforcement. The jury then heard evidence regarding the habitual offender count, at the conclusion of which it found Payne to be an habitual offender. ⁷ We will supply additional facts where necessary or appropriate.

I. EARLY TRIAL

Payne argues that he was denied his right to an early trial. The right to an early trial is expressed in Crim.R. 4(B)(1), which provides in relevant part as follows:

"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.... [A] trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time."

Payne moved for an early trial on January 21, 1993. Seventy days from January 21 is April 1. Therefore, Payne contends that the trial court should have tried him by April 1 instead of continually resetting his trial due to "court congestion." The gravamen of Payne's argument maintains that the trial court's "technique" of "congesting" its calendar to avoid operation of Crim.R. 4 "goes far beyond the meaning and spirit of any congested calendar exception as does the use of a dismissal to secure a continuance." Appellant's Brief at 17. Accordingly, he concludes that he is entitled to discharge. ⁸

A trial court may, upon its own motion, schedule a trial for a date beyond the seventy-day period provided in Crim.R. 4(B) when the congested nature of its calendar truly precludes a trial date within the early trial frame. See Dudley v. State (1985) Ind., 480 N.E.2d 881, 890; Jordan v. State (1982) Ind., 435 N.E.2d 257, 258-59; Loyd v. State (1980) 272 Ind. 404, 398 N.E.2d 1260, 1265, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Likewise, a defendant may challenge the propriety of a continuation made under the auspices of a "congested calendar". Indeed, our Supreme Court has determined that the delay must be reasonable and that the reasonableness of such a delay must be judged in the context of the particular case. Loyd, supra, 398 N.E.2d at 1265; Sholar v. State (1993) 1st Dist. Ind.App., 626 N.E.2d 547, 549; Biggs v. State (1989) 1st Dist. Ind.App., 546 N.E.2d 1271, 1276. Upon appeal, parties have also focused upon the sufficiency of the record evidencing a congested calendar. See, e.g., Gee v. State (1988) Ind., 526 N.E.2d 1152, 1153; Fortson v. State (1979) 270 Ind. 289, 385 N.E.2d 429; Gill v. State (1977) 267 Ind. 160, 368 N.E.2d 1159.

Payne's argument here strikes at the very heart of the congested calendar exception, contending that we must determine whether the congested calendar exception "is so large as to be allowed to swallow the balance of [Crim.R. 4]." Appellant's Brief at 18. He maintains that the exception "was intended to be used only in 'exceptional' circumstances, not as a matter of routine or normal conduct of Court business." Id. at 27. Payne also maintains that a congested court is hardly an "open court" in the context of Indiana's constitution, see Ind. Const. Art. I, § 12, and that the trial judge here should have found another judge to handle the matter in order to avoid the delay.

Payne also attacks the fact that there is a lack of a factual basis in the record for us to determine whether a delay due to calendar congestion was indeed reasonable. Such an argument centers around the fact that the trial court's orders resetting trial here merely state that the rescheduling is due to a congested calendar without specifically mentioning priority or whether the resetting is a first, second, third, etc., choice setting. The record here reveals some discussion of other cases set for trial that apparently enjoyed priority. Nevertheless, Payne is correct in pointing out that the record does not disclose whether the competing cases went to trial, whether there were speedy trial motions in those cases, or whether those motions preceded his.

As a general proposition it would seem that a congested calendar excuse for not bringing a defendant to trial is only appropriate for inability to make an initial trial setting. As a reason for continuing a trial date already set, it is valid only if the trial being continued is a first choice setting and there are reasons why the trial cannot proceed on that date. See Bridwell v. State (1994) 5th Dist. Ind.App., 640 N.E.2d 437, 440, trans. denied (Sullivan, J., dissenting). In Loyd, supra, 398 N.E.2d at 1265, our Supreme Court noted that "the court calendar may be congested by a variety of circumstances, among them the unavailability of essential personnel or physical facilities." A related valid reason would be if a trial in progress extends into the time allotted for the instant case. Raber v. State (1993) 1st Dist. Ind.App., 626 N.E.2d 506. However, "court congestion" does not exist as a valid basis for resetting a trial date outside the time required for a speedy trial if the trial being continued is not a first choice setting and a higher choice setting is ready for trial.

In light of the fact that the record here does not adequately disclose the factual basis for inability to bring Payne to trial on the scheduled date five separate times we would ordinarily hold, pursuant to Raber v. State (1993) 1st Dist. Ind.App., 622 N.E.2d 541, opinion following remand, 626 N.E.2d 506, that the continuances granted did not provide valid reason to bring Payne to trial outside the seventy-day period for trial. Contra Bridwell, supra, 640 N.E.2d 437. However, our disposition of the speedy trial issue is not governed by the validity of the congested court calendar continuances.

The State argues that the date of trial should not be calculated from Payne's January 21 motion for an early trial because he filed a second early trial request on November 10, two days after the State dismissed and re-filed charges against him. Thus, the State concludes that Payne has abandoned his January 21 motion, and that the trial court merely had to try the cause within seventy days of Payne's November 10 early trial motion, which it did. ⁹ Further, the State argues that Payne has abandoned his early trial motion even if we acknowledge that the seventy-day period began on January 21 because he failed to object when the trial court initially set the...