Sharpe v. State, No. 3-675A129

Docket NºNo. 3-675A129
Citation369 N.E.2d 683, 174 Ind.App. 652
Case DateNovember 29, 1977

Page 683

369 N.E.2d 683
174 Ind.App. 652
Daniel Leroy SHARPE, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 3-675A129.
Court of Appeals of Indiana, Third District.
Nov. 29, 1977.

Page 685

Howard S. Grimm, Jr., Grimm & Grimm, Fort Wayne, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Appellant Sharpe was convicted as an accessory before the fact to armed robbery. Three issues are raised. Was [174 Ind.App. 653] Sharpe entitled to discharge for delay in trial? Was his confession inadmissible? Was he entitled to a jury trial despite an earlier waiver? We find no error in the proceedings.

I. Speedy Trial

The underlying facts disclose that Sharpe was originally charged in 1968, and his trial was commenced on April 10, 1969. During trial Sharpe absconded and fled. Subsequently, he was convicted of a federal crime and incarcerated in federal prison. Upon his release from federal prison in October 1973, he was returned to Allen County for trial in this case. He was again brought to trial on August 9, 1974.

Sharpe's first contention is that he was entitled to discharge pursuant to Indiana Rules of Procedure, Criminal Rule 4(A) for being held in jail more than six months without trial after he was returned to Allen County. 1 In examining this assertion it must be recalled that the various amendments to CR 4 operate only prospectively. Sharpe's entitlement was governed by the rule as it existed prior to the amendment which became effective in February 1974. Shack v. State (1972), 259 Ind. 450, 288 N.E.2d 155; Moreno v. State (1975), Ind.App., 336 N.E.2d 675. Under that version of the rule Sharpe was entitled to discharge if he was held in jail for more than six months without trial unless the trial was delayed by an act chargeable to him or a congested court calendar prevented trial within the appropriate period. In addition, where his actions were responsible for the delay, the six-month period began to run

Page 686

anew from the last day of the delay chargeable to him. See, e. g., Holt v. State (1974), 262 Ind. 334, 316 N.E.2d 362; Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 411; Moreno, supra.

The record in this case shows that trial was originally set to commence within six months after Sharpe's return to Indiana authorities. In January 1974, Sharpe's original counsel petitioned to withdraw because Sharpe was uncooperative and critical of his [174 Ind.App. 654] representation. A hearing was held, new counsel was appointed, and a continuance was granted on February 19, 1974. This was delay chargeable to Sharpe. Subsequently, trial was set to commence June 3, 1974. That setting was continued to June 10, 1974 because Sharpe's counsel was involved in another trial on June 3. Again, the six-month period provided under CR 4(A) was reinstituted by that continuance. Coffey v. State (1973), 156 Ind.App. 363, 296 N.E.2d 663. Since trial was then commenced on August 9, 1974, the provisions of CR 4(A) were not violated.

Sharpe also argues that the delay in bringing him to trial from his original absconding violated his constitutional rights under the Sixth Amendment and Article I, Section 12 of the Indiana Constitution. 2

In determining whether an accused's constitutional rights to speedy trial (apart from the requirements of CR 4) have been violated, we must consider the particular facts of each case, including the length of delay, the reason for the delay, the defendant's assertion of his desire for speedy trial, and the prejudice to the defendant arising from the delay. Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; Collins v. State (1975), Ind.App., 321 N.E.2d 868.

In this case the state promptly brought Sharpe to trial and he absconded. When authorities learned of his federal imprisonment a detainer was lodged against him. Sharpe made no request for a speedy trial, although in December 1972, he filed a motion pro se seeking dismissal of the charges against him. It additionally appears that the state did nothing to procure Sharpe's temporary return for trial during his incarceration. Instead, it waited the remaining nine months for his release. Sharpe's argument presents no assertion of any factual prejudice occasioned by the delay.

With respect to this latter failure a distinction must be observed between those cases arising under the provisions of CR 4 and those concerning the less precise standards presented by the [174 Ind.App. 655] constitutional guarantees which apply apart from the provisions of the rule. In the former instances, prejudice is presumed from the exceeding of the rule's limit. Fossey v. State (1970), 254 Ind. 173, 258 N.E.2d 616. In the latter, it is not a prerequisite to relief that actual prejudice be established, Hart v. State (1973), 260 Ind. 137, 292 N.E.2d 814; but whether and what prejudice is asserted are factors to be considered in the overall determination. Moore v. Arizona (1973), 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183; Barker v. Wingo, supra; Collins v. State, supra.

In view of the totality of circumstances here present, we are unable to say that Sharpe was deprived of his constitutional rights to speedy trial.

II. Voluntariness of Confession

Sharpe asserts that his confession was involuntary and should have been suppressed because it was coerced and improperly induced by police.

At a suppression hearing, Sharpe testified that he was not advised of his rights prior to his interrogation by police, that the detectives refused his request to call a lawyer, that he was not permitted to read the typewritten confession before he signed it, and that the prosecutor promised that if Sharpe made a statement he would not be charged with murder. The arresting officer testified that he did advise...

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6 practice notes
  • People v. Miller
    • United States
    • United States State Supreme Court (New York)
    • September 24, 1990
    ...States, 333 F.2d 307 [5th Cir., 1964]; People v. Chambers, 7 Cal.3d 666, 102 Cal.Rptr. 776, 498 P.2d 1024 [1972]; Sharpe v. State, 174 Ind.App. 652, 369 N.E.2d 683 [1977]. The related factors of jury panel availability (see Scates v. State, supra; State v. Rankin, supra; State v. Lawrence, ......
  • Winston v. Woods, CASE NO. 2:11-CV-10659
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • April 30, 2013
    ...a defendant has no constitutional right to withdraw the waiver. State v. Morton, 648 S.W.2d 642, 643 (Mo. App., 1983); Sharpe v. State, 174 Ind. App. 652, 658, 369 N.E.2d 683 (1977). Rather, whether the waiver may be withdrawn is within the discretion of the trial court. People v. Wagner, 1......
  • Worthington v. State, No. 3-479A100
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 1980
    ...settled that a prosecuting attorney is vested with broad discretion in the performance of his duties, Sharpe v. State (1977), Ind.App., 369 N.E.2d 683, including the decision when to prosecute. State v. Wilbanks (1973) 95 Idaho 346, 509 P.2d 331. Even if the prosecutor knew all the facts pe......
  • Perry v. State, No. 1-1179A335
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 1980
    ...(Article I, Section 13, Indiana Constitution; United States Constitution, Amendments 6 and 14.) Sharpe v. State, (1977) Ind.App., 369 N.E.2d 683, 685; Wadlington v. State, (1975) 164 Ind.App. 255, 328 N.E.2d 458; Stevenson v. State, (1975) 163 Ind.App. 399, 324 N.E.2d 509. The right to jury......
  • Request a trial to view additional results
6 cases
  • People v. Miller
    • United States
    • United States State Supreme Court (New York)
    • September 24, 1990
    ...States, 333 F.2d 307 [5th Cir., 1964]; People v. Chambers, 7 Cal.3d 666, 102 Cal.Rptr. 776, 498 P.2d 1024 [1972]; Sharpe v. State, 174 Ind.App. 652, 369 N.E.2d 683 [1977]. The related factors of jury panel availability (see Scates v. State, supra; State v. Rankin, supra; State v. Lawrence, ......
  • Winston v. Woods, CASE NO. 2:11-CV-10659
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • April 30, 2013
    ...a defendant has no constitutional right to withdraw the waiver. State v. Morton, 648 S.W.2d 642, 643 (Mo. App., 1983); Sharpe v. State, 174 Ind. App. 652, 658, 369 N.E.2d 683 (1977). Rather, whether the waiver may be withdrawn is within the discretion of the trial court. People v. Wagner, 1......
  • Worthington v. State, No. 3-479A100
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 1980
    ...settled that a prosecuting attorney is vested with broad discretion in the performance of his duties, Sharpe v. State (1977), Ind.App., 369 N.E.2d 683, including the decision when to prosecute. State v. Wilbanks (1973) 95 Idaho 346, 509 P.2d 331. Even if the prosecutor knew all the facts pe......
  • Perry v. State, No. 1-1179A335
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 1980
    ...(Article I, Section 13, Indiana Constitution; United States Constitution, Amendments 6 and 14.) Sharpe v. State, (1977) Ind.App., 369 N.E.2d 683, 685; Wadlington v. State, (1975) 164 Ind.App. 255, 328 N.E.2d 458; Stevenson v. State, (1975) 163 Ind.App. 399, 324 N.E.2d 509. The right to jury......
  • Request a trial to view additional results

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