Seay v. State

• Decision Date: 07 March 1990
• Docket Number: No. 82S00-8801-CR-61,82S00-8801-CR-61
• Citation: 550 N.E.2d 1284
• Parties: Gary T. SEAY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1284

550 N.E.2d 1284

Gary T. SEAY, Appellant, v. STATE of Indiana, Appellee.

No. 82S00-8801-CR-61.

Supreme Court of Indiana.

March 7, 1990.

Rehearing Denied May 9, 1990.

Susan K. Carpenter, Public Defender, Teresa D. Harper, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was tried to a jury and found guilty of two counts of dealing in a Schedule II controlled substance, I.C. 35-48-4-2, a class B felony. On Count I, appellant was sentenced to fifteen years, and that sentence was enhanced by thirty years after the jury found appellant to be a habitual offender. On Count II, appellant was sentenced to fifteen years. The trial court ordered that the sentences be served consecutively, resulting in an executed sentence of sixty years. In this direct appeal, appellant asserts two claims of error. He claims that he was denied his right to counsel under the Sixth and Fourteenth Amendments of the federal Constitution and under Article One, Sec. 13 of the Indiana Constitution. He also claims that the State wrongfully delayed bringing the charges at issue here, which could have been joined with similar charges on which he had been tried earlier in the year, in order to obtain successive habitual offender sentence enhancements.

The evidence produced at trial which tended to support the determination of guilt showed that on two separate occasions, August 14, 1986, and September 2, 1986, appellant met with a confidential informant and an undercover policeman and made two sales of Dilaudid, a controlled substance. Both the informant and the policeman testified to the transactions at appellant's trial.

Appellant's first claim on appeal is that he was denied his right to counsel in contravention of the Sixth and Fourteenth Amendments of the United States Constitution and Article One, Sec. 13 of the Indiana Constitution. The trial court appointed a total of three public defenders to represent appellant. The first moved to withdraw because of a conflict of interest arising from a prior representation of appellant, and the second moved to withdraw because of a conflict of interest arising from his former position as the prosecuting attorney on a case in which appellant was previously involved. Barry Standley, the third public defender appointed to represent appellant, likewise ultimately moved to withdraw based on a conflict of interest. Standley had briefly represented appellant on a charge in 1982, and appellant had been sufficiently dissatisfied with his performance as to refuse to consult or cooperate in the preparation of his defense on the instant charge and to tell Standley and third parties that he intended to physically assault Standley.

At a hearing on Standley's motion to withdraw, the trial court advised appellant that should the motion be granted, a fourth public defender would not be appointed and he would have to proceed pro se. Prior to trial, the court offered to reappoint Standley, who stood prepared to proceed on appellant's behalf, if appellant had changed his mind about wanting counsel, and the court advised appellant of the hazards of pro se representation. Appellant reiterated that a conflict of interest existed between the two men and indicated that Standley was unacceptable to him. One accused of a crime does have a constitutional right to be represented by counsel, but not necessarily to be represented by counsel of his own choosing. The recourse open to a defendant who has rejected court-appointed counsel is to retain his own counsel or to proceed pro se. Jackson v. State (1985), Ind., 483 N.E.2d 1374, 1377. Appellant was not denied his right to counsel.

Appellant moved for dismissal of all of the instant charges, asserting that the State brought successive prosecutions of charges that should have been joined and tried in one action. His second claim on appeal is that the State wrongfully brought these successive prosecutions in order to obtain multiple, consecutive habitual offender determinations and that the denial of his motion to dismiss was error.

During the late summer and early fall of 1986, appellant made four separate sales of controlled substances to a police informant and an undercover policeman. Cause No. 5658 came to trial in February of 1987, charging appellant with two counts of dealing in a controlled substance based on sales made on July 14, 1986, and August 4, 1986, and seeking a habitual offender sentence enhancement. Appellant was convicted on both counts and was found to be a habitual offender. He received an executed sentence of fifty years, twenty years on each count, those sentences to run concurrently, and a thirty-year sentence enhancement of one of the sentences based on the habitual offender determination. While the jury was deliberating on Cause No. 5658, the State filed the charges underlying this appeal, which were based on the August 14 and September 2 sales. The State again sought a habitual offender determination and based its allegation on the identical underlying felonies which had supported the habitual offender determination in Cause No. 5658. The instant cause, No. 5938, was tried in August of 1987 and, as previously noted, resulted in two consecutive sentences, one of which was enhanced on the habitual offender determination, for an executed sentence of sixty years. The trial court presiding over this cause ordered that its sentence be served consecutively to the sentence imposed by the trial court which presided over Cause No. 5658.

Appellant first argues that by filing and prosecuting the four charges in two successive actions, the State deprived him of his statutory right to joinder of offenses and that, therefore, all of the instant charges should have been dismissed. This argument is without merit. I.C. 35-34-1-9, which governs joinder of offenses, states, "Two or more offenses may be joined in the same indictment or information...." Prosecutors are given the initial discretion to charge separate offenses in a single or multiple informations or indictments, and that decision may be informed by a multitude of factors. At a pretrial hearing, the prosecutor here testified that the decision to bring separate prosecutions and the timing of the filing of charges was designed, among other things, to avoid jeopardizing simultaneous drug investigations then being conducted by two separate agencies. The State was not required to join all four charges in one prosecution.

I.C. 35-34-1-10, which governs joinder of related offenses for trial, states in section (a) that when a defendant has been charged such that the offenses could be joined in one indictment under I.C. 35-34-1-9, "the court, upon motion of the defendant, may order that the indictments or informations be joined for trial." Again, this permissive language undercuts appellant's claim to entitlement to joinder under its provisions.

Appellant argues that had the State not delayed in filing the instant charges, the trial court would have had a mandatory duty to join these offenses with those tried in Cause No. 5658 under I.C. 35-34-1-10(b), which requires the court, on the motion of any party or on the court's own motion, to join charges for trial where the defendant has been charged in two or more indictments with offenses related so as to constitute a common scheme or plan. Appellant asserts that the four sales for which he was arrested constituted a common scheme or plan to deal drugs. Even accepting that proposition as true, the statute does not apply to appellant's situation because the trial court is in a position to consider the propriety of joining for trial only those indictments that are filed and pending at the time the motion is made. The instant charges were filed after those in Cause No. 5658 were being deliberated and were therefore not available for the court to consider for joinder. Although it is, of course, to this very delay in filing that appellant takes exception, the joinder statutes which he cites do not go so far as to require that the State make simultaneous filings of all related charges. Those statutes operate only on those charges which have been filed prior to the commencement of the first trial and which are, at that juncture, amenable to the court's assessment as to whether the conduct in each separately charged offense constitutes part of a common plan which should be tried together.

Finally, appellant claims that I.C. 35-34-1-10(c) and I.C. 35-41-4-4 barred the instant prosecution. I.C. 35-34-1-10(c) provides:

A defendant who has been tried for one offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section [35-34-1-9] of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution.

I.C. 35-41-4-4 provides:

Prosecution barred for different offense.

(a) A prosecution is barred if all of the following exist:

(1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts.

(2) The former prosecution resulted in an acquittal or a conviction of the defendant....

(3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.

Appellant's circumstances clearly meet the preliminary provisions of both sections, and the remaining substantive question of when a former prosecution bars subsequent prosecution on related charges under these sections has been addressed by both this Court and the Court of Appeals.

In Webb v. State (1983), Ind., 453 N.E.2d 180, cert. denied, 465 U.S. 1081, 104 S.Ct. 1449, 79 L.Ed.2d 767, a man was killed during a burglary of his home, and Webb was tried for and acquitted of knowingly...