Saunders v. State, No. 03A01-9004-CR-164

Docket NºNo. 03A01-9004-CR-164
Citation562 N.E.2d 729
Case DateNovember 13, 1990
CourtCourt of Appeals of Indiana

Page 729

562 N.E.2d 729
Donald F. SAUNDERS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 03A01-9004-CR-164.
Court of Appeals of Indiana,
First District.
Nov. 13, 1990.

Page 733

Karon E. Perkins, Dalmbert, Marshall & Perkins, An Ass'n of Lawyers, Columbus, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

A jury found Donald F. Saunders guilty on March 6, 1987 of two counts of dealing in cocaine as class A felonies, one count of dealing in a schedule I controlled substance

Page 734

(LSD) as a class B felony, two counts of conspiracy to commit dealing in cocaine as class A felonies, and one count of conspiracy to commit dealing in a schedule I controlled substance (LSD) as a class B felony. The trial court sentenced Saunders to the presumptive terms of thirty (30) years for each class A felony and of ten (10) years for each class B felony and ordered all sentences to be served consecutively for a total of one hundred forty (140) years. Saunders appeals these convictions and sentences and appeals from the procedures followed at trial; however, he raises no issue which merits reversal.

The evidence reveals that Ronald and Theresa Gibbs allowed Saunders to live in their home until they discovered he was growing marijuana plants there. Soon after they asked him to leave, Ron found a prescription vial, which had belonged to his wife, in an alley near their home. The vial contained a residue of white powder, and Ron turned it over to the police. The label had been removed from the vial, and Theresa found it behind a dresser in the room which Saunders had occupied. Saunders was the last person seen in the alley where Ron found the vial.

The police tested the white residue and found it to be cocaine. A white powder found on a small bowl in what had been Saunders' room was later determined to be a controlled substance. Based upon this information, Sergeant Knulf asked Ron to become a confidential informant. Ron agreed to make controlled buys from Saunders but refused to be compensated for the work.

On April 14, 1986, Ron informed Saunders he had a friend who would willingly purchase cocaine supplied by Saunders, who replied he could supply whatever amount was needed. Saunders quoted prices and amounts and even provided a handwritten schedule to Ron. The two then agreed to meet the next day.

On April 15, Ron met with Saunders and wore a body transmitter so the transaction could be recorded by the police. Saunders again provided a schedule of prices and amounts, but they exchanged no drugs or money. However, the next day, Ron gave Saunders $600.00 to purchase cocaine, which Saunders delivered to Ron later that night.

On April 24, Ron again met Saunders and gave him $50.00 to purchase a sample of LSD, which was to be delivered the next day. Saunders met with Ron the next day and produced three tablets of LSD. Ron again wore a body transmitter to permit recording of the transaction, and the police also recorded the meeting on a videotape. At that time, Ron gave Saunders $700.00 to purchase more cocaine, which was to be delivered later that day. Saunders delivered the cocaine to Ron later that evening, and the police arrested him outside of Ron's home.

After his arrest, Saunders gave the police a statement in which he admitted he had taken money from Ron to buy cocaine and LSD. He admitted he had delivered LSD to Ron but denied he had delivered any cocaine.

I.

Was Saunders denied his right to a speedy trial when he was not tried within seventy days after he filed his motion for an early trial?

The record reveals the following relevant dates.

June 11, 1986 motion for early trial [70th day: August 20, 1986]
                June 17, 1986 trial set for August 12, 1986
                July 25, 1986 Saunders orally requests change of counsel; new counsel
                 appointed
                July 31, 1986 counsel requests continuance and files new motion for early
                 trial [70th day: October 9, 1986]
                August 4, 1986 trial set for October 7, 1986
                August 18, 1986 counsel moves to withdraw
                August 22, 1986 new counsel appointed
                September 15, 1986 new counsel appointed
                September 26, 1986 counsel requests continuance for preparation
                September 30, 1986 trial reset for December 2, 1986
                October 27, 1986 counsel moves to withdraw
                November 14, 1986 original counsel reappointed
                November 19, 1986 counsel requests continuance
                November 26, 1986 Saunders files pro se motion to dismiss due to 70-day rule
                 violation
                December 19, 1986 counsel moves to withdraw
                December 30, 1986 Saunders files pro se motion for early trial; [70th day:
                 March 10, 1987]; December 19 motion to withdraw denied;
                 trial reset for March 3, 1987
                January 8, 1987 Saunders files pro se motion to dismiss
                February 19, 1987 motion to dismiss denied
                February 27, 1987 counsel moves to withdraw
                March 3, 1987 motion to withdraw denied; trial begins
                

Page 735

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 that period is had on his motion or the delay is otherwise caused by his act. Ind.Crim. Rule 4(B)(1). The acts of an attorney under this rule are attributed to the client. Vaughan v. State (1984), Ind.App., 470 N.E.2d 374, trans. denied. Delay caused by a change of counsel will be charged to a defendant where actual delay results. Biggs v. State (1989), Ind.App., 546 N.E.2d 1271.

In addition, the movant under this rule must maintain a position which is reasonably consistent with the request he has made. Failure at any point to do so constitutes an abandonment of the request, and the motion by which it was made ceases to have legal viability. Rutledge v. State (1981), Ind., 426 N.E.2d 638. Therefore, the filing of a subsequent motion for early trial is deemed an abandonment of any previous motion because it is inconsistent with the previous request. Id.

In this case, all acts of counsel for Saunders are attributable to him. On June 11, 1986, he moved for an early trial. The 70th day would have been August 20, 1986; and the trial court set trial for August 12, 1986, within the 70-day limit. Saunders himself subsequently requested a change of counsel, and the trial court granted the request. New counsel requested a continuance and filed a new motion for early trial on July 31, 1986, that is, within the previous 70-day limit. This new request for an early trial was inconsistent with Saunders' previous request and constitutes an abandonment of that request. The new 70-day limit thus ended on October 9, 1986; and the new trial date set for October 7, 1986 was within this period.

In August and September of 1986, counsel for Saunders changed several times due to conflicts with his case. New counsel requested a continuance for preparation of the case on September 26, 1986, that is, within the then current 70-day limit; and trial was set for December 2, 1986, which was beyond the 70-day period set to end on October 9, 1986.

A defendant has no duty to object to the setting of a belated trial date when the act of setting such date occurs after the Crim.R. 4 time expires such that the court cannot reset the trial date within the time allotted by the rule. Morrison v. State (1990), Ind., 555 N.E.2d 458. However, if the defendant sits idly by at a time when the court could yet grant him a trial within the proper period and permits the court, without objection, to set a date beyond that period, he will be deemed to have acquiesced therein. Little v. State (1981), 275 Ind. 78, 415 N.E.2d 44. Here, Saunders not only requested a continuance through counsel but failed to object to the trial date outside the 70-day limit at a time when the trial court could have set the date within that limit. We conclude Saunders acquiesced in the December 2, 1986 trial date.

Through counsel, Saunders subsequently moved for a continuance of the December 2, 1986 trial date in order to prepare for trial. In addition, Saunders filed a pro se motion to dismiss for violation of the 70-day early trial period; and counsel for Saunders moved to withdraw. On December 30, 1986, Saunders filed another pro se motion for an early trial. On the same date, the trial court scheduled a hearing on the pending motions for January 23, 1987 and set the jury trial for March 3, 1987.

The motion for continuance of the December 2, 1986 trial date is attributable to Saunders. He is responsible for the delay past the December 2, 1986 trial date at least until December 30, 1986, when the

Page 736

trial court set a hearing on his pending motions and when Saunders filed his pro se motion for an early trial. This motion for an early trial again set the 70-day limit for an early trial running, and the limit would expire on March 10, 1987. The trial was held on March 3, 1987, within the 70-day limit.

We note a certain amount of tension between this early trial issue and Saunders' claim he was denied his right to counsel in issue VII of this decision. See generally, 16 A.L.R.4th 1283. However, the right to assistance of counsel includes, as a necessary corollary, the right to adequate time for preparation. Jones v. State (1978), 175 Ind.App. 343, 371 N.E.2d 1314. Moreover, Saunders orally requested a change of counsel in the first instance and therefore set in motion the chain of events which caused him to repeatedly require new counsel when conflicts arose. State ex rel. Cox v. Super. Ct., Madison Cty. (1983), Ind., 445 N.E.2d 1367. Any delay was for his benefit and was intended to insure him his constitutional rights. The chain of events was not complete until the day of trial when the trial judge refused to allow withdrawal of the same counsel Saunders had been appointed in the first place. The delay occasioned by these circumstances is attributable to Saunders. Gross v....

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11 practice notes
  • Buie v. State, No. 68S00-9202-CR-00109
    • United States
    • Indiana Supreme Court of Indiana
    • April 11, 1994
    ...during which investigating officers might solicit confessions or attempt to procure other evidence. Saunders v. State (1990), Ind.App., 562 N.E.2d 729, 743, vacated on other grounds, (1992), Ind., 584 N.E.2d A violation of § 35-33-7-1 is not an automatic ground to suppress a statement obtai......
  • Drakulich v. State, No. 49A05-0612-CR-690.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 2007
    ...the criminal scheme, the common participants, the proximity in time, and the conspirator's involvement in each crime." Saunders v. State, 562 N.E.2d 729, 739 (Ind.Ct. App.1990), aff'd in relevant part, 584 N.E.2d 1087 (Ind.1992). Whether one or several conspiracies occurred is a question of......
  • State v. Allen, No. 18A02-9309-CR-511
    • United States
    • Indiana Court of Appeals of Indiana
    • January 19, 1995
    ...of 1991, Flora conspired with others to possess and to distribute cocaine. The State, citing Saunders v. State (1990) 1st Dist.Ind.App., 562 N.E.2d 729, rev'd on other grounds, 584 N.E.2d 1087, argues that whether there is one conspiracy or several is a question for the jury. This is a corr......
  • Saunders v. State, No. 03A04-0304-PC-196.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 29, 2003
    ...barred by res judicata, we affirm. Facts and Procedural History The facts preceding Saunders' conviction, as stated in Saunders v. State, 562 N.E.2d 729 (Ind.Ct.App.1990), vacated by 584 N.E.2d 1087 (Ind.1992), are as Ronald and Theresa Gibbs allowed Saunders to live in their home until the......
  • Request a trial to view additional results
11 cases
  • Buie v. State, No. 68S00-9202-CR-00109
    • United States
    • Indiana Supreme Court of Indiana
    • April 11, 1994
    ...during which investigating officers might solicit confessions or attempt to procure other evidence. Saunders v. State (1990), Ind.App., 562 N.E.2d 729, 743, vacated on other grounds, (1992), Ind., 584 N.E.2d A violation of § 35-33-7-1 is not an automatic ground to suppress a statement obtai......
  • Drakulich v. State, No. 49A05-0612-CR-690.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 2007
    ...the criminal scheme, the common participants, the proximity in time, and the conspirator's involvement in each crime." Saunders v. State, 562 N.E.2d 729, 739 (Ind.Ct. App.1990), aff'd in relevant part, 584 N.E.2d 1087 (Ind.1992). Whether one or several conspiracies occurred is a question of......
  • State v. Allen, No. 18A02-9309-CR-511
    • United States
    • Indiana Court of Appeals of Indiana
    • January 19, 1995
    ...of 1991, Flora conspired with others to possess and to distribute cocaine. The State, citing Saunders v. State (1990) 1st Dist.Ind.App., 562 N.E.2d 729, rev'd on other grounds, 584 N.E.2d 1087, argues that whether there is one conspiracy or several is a question for the jury. This is a corr......
  • Saunders v. State, No. 03A04-0304-PC-196.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 29, 2003
    ...barred by res judicata, we affirm. Facts and Procedural History The facts preceding Saunders' conviction, as stated in Saunders v. State, 562 N.E.2d 729 (Ind.Ct.App.1990), vacated by 584 N.E.2d 1087 (Ind.1992), are as Ronald and Theresa Gibbs allowed Saunders to live in their home until the......
  • Request a trial to view additional results

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