Smeltzer v. State, PS

• Citation: 258 N.E.2d 647,254 Ind. 165
• Decision Date: 28 May 1970
• Docket Number: No. PS,PS
• Court: Indiana Supreme Court
• Parties: David Taylor SMELTZER, Petitioner, v. STATE of Indiana, Respondent. 109.

Page 647

258 N.E.2d 647

254 Ind. 165

David Taylor SMELTZER, Petitioner, v. STATE of Indiana, Respondent.

No. PS 109.

Supreme Court of Indiana.

May 28, 1970.

David Taylor Smeltzer, pro se

William G. Bruns, Deputy Pros. Atty., Muncie, for appellee.

HUNTER, Chief Justice.

Petitioner, David Taylor Smeltzer, has filed in this Court a petition for a writ of mandate or in the alternative, a petition asking that this court assume jurisdiction of a demand for a fair and speedy trial. Said petition was filed pro se by petitioner who is currently an inmate at the Utah State Prison, Draper, Utah.

The events preceding the filing of this petition are as follows: On or about October 19, 1968, petitioner Smeltzer was arrested in Delaware County, Indiana, and charged in two counts with (1) physical injury inflicted by a deadly weapon while engaged in a robbery and (2) armed robbery. The affidavit omitting the caption reads as follows:

COUNT I

'DAVID TAYLOR SMELTZER on or about the 19th day of October 1968 at and in the County of Delaware, State of Indiana, did then and there unlawfully, feloniously, forcibly by violence and putting in fear one Richard Laird, take from the person of the said Richard Laird United States Currency, of the value of Eighty Dollars ($80.00), which

was then and there the property of William H. Church, Sr., d/b/a Bill's Liquors, and the said David Taylor Smeltzer, while engaged in committing the robbery as aforesaid, did then and there unlawfully and feloniously inflict a physical injury, to-wit: a wound in and upon the head of the said Richard Laird with the butt of a pistol, then and there held in the hand of the said David Taylor Smeltzer, * * *.'

COUNT II

'* * * DAVID TAYLOR SMELTZER on or about the 19th day of October 1968 at and in the County of Delaware, State of Indiana, did then and there unlawfully, feloniously, forcibly, and by violence and putting in fear one Richard Laird, rob, take, and steal from the person of the said Richard Laird lawful currency of the United States of America, of the value of Eighty Dollars ($80.00), being then and there the property of William H. Church, Sr., d/b/a Bill's Liquors; the said David Taylor Smeltzer being then and there armed with a dangerous and deadly weapon, to-wit: a pistol, and the said David Taylor Smeltzer being a person then and there over sixteen (16) years of age; * * *.'

Petitioner on October 19, 1968, was placed in pretrial confinement in the Delaware County Jail on the above charges. On November 2, 1968, while still in confinement at said jail, petitioner escaped therefrom and fled to the State of Utah. While in Utah, he was tried for armed robbery, convicted and sentenced to not less than five (5) years nor more than life imprisonment by the District Court of the Third Judicial Circuit in and for Salt Lake County, Utah.

On May 23, 1969, petitioner who was and presently is incarcerated at the Utah State Prison, forwarded to the Delaware Superior Court No. 2, a demand for a fair and speedy trial in accordance with Indiana Supreme Court Rule 1--4D. He made demand on the court that he be tried prior to the expiration of his sentence at the Utah State Prison. A detainer warrant had been sent to that prison by Indiana authorities indicating an intent on the part of the prosecuting attorney of Delaware County to bring petitioner to trial when he was available.

The petition before this court prays that a writ of mandate issue commanding the prosecuting attorney to set aside all pending charges against petitioner and further, to order removal of the detainer warrant from the records of petitioner at the Utah State Prison. Alternatively petitioner prays that this court assume jurisdiction of the entire cause and enter judgment in accordance with our findings. Both prayers are based on the petitioner's assertion that he is being denied the right to a speedy trial. We hereby deny petitioner's prayers for relief and do so for the reasons set out immediately below.

It had heretofore been the rule in Indiana that a defendant need not be brought to trial on a subsequent charge while incarcerated either in this state or elsewhere on a prior conviction in order to preserve his right to a speedy trial. This was a well-recognized exception in this state to the constitutional right to a speedy trial embodied in both Rule 1--4D, supra, and its predecessor rule on discharge, Ind.Ann.Stat. § 9--1402 (1956 Repl.). State v. Hadden (1967), 248 Ind. 422, 234 N.E.2d 499; Bewley v. State (1966), 247 Ind. 652, 220 N.E.2d 612; Finton v. State (1963), 244 Ind. 396, 193 N.E.2d 134. In Hadden the following quotation appears:

'However, the general rule is that delay caused by the prisoner being imprisoned in another jurisdiction is not a violation of a constitutional right to a speedy trial. 21 Am.Jur.2d, Criminal Law, 250, and this has been held to be true even where the State authorities have failed to request the delivery of the accused to the state court. 22A C.J.S. Criminal Law § 472(2) b, Note 79, and certiorari has been denied by the United States Supreme Court on a case in which this point was in question. State of Minnesota v. Hall, 266 Minn. 74, 123 N.W.2d 116 (1963), cert. den. (1964) 375 U.S. 978, 84 S.Ct. 499, 11 L.Ed.2d 423 (1964).' 234 N.E.2d at 499.

However the United States Supreme Court has by its holding in the recent case of Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, clearly invalidated this long-standing rule of law. In that case the court held that the Sixth Amendment right to a speedy trial made obligatory on the states by the Fourteenth Amendment may not be dispensed with because the accused under a state charge is serving a prison sentence imposed by another jurisdiction. The court held that, under such circumstances, the state, upon the accused's demand, has a constitutional duty to make a diligent good-faith effort to bring him before the trial court.

The case before us falls squarely within the contemplation of Smith v. Hooey, supra. The petitioner is serving a sentence of from five (5) years to life imprisonment in the State of Utah, he has charges pending against him in the State of Indiana, and he has made a request to the Delaware Superior Court in this State that he be brought to trial on those charges. To date no such trial has occurred. Clearly the determination by this court as to whether or not we should mandate a dismissal of the charges in Indiana, turns upon whether or not the appropriate authorities have made a diligent, good-faith effort to bring petitioner to trial in this state.

In determining whether such an effort has in fact been made, we will look at all the facts and circumstances in each case, as well as the following specific indicia:

(1) the length of time which transpires between the demand by the accused for a speedy trial, and the initiation of action by the proper authorities in this State to bring him to trial;

(2) the procedures followed by the State of Indiana in seeking the release of the accused from the jurisdiction in which he is incarcerated; and

(3) the compliance by the officials of the State of Indiana with the pertinent statutory provisions of the law of this state and of the incarcerating jurisdiction.

We hold as a matter of law that a diligent, good-faith effort has been made under the circumstances of this case and that the State of Indiana has fulfilled its constitutional duty.

The record reveals that on May 29, 1969, within six (6) days after petitioner Smeltzer demanded a speedy trial in the Delaware Superior Court, the prosecuting attorney of that county filed a formal petition with the Governor of Indiana, in accordance with Ind.Ann.Stat. § 9--441 (1956 Repl.) requesting that the Governor issue a requisition to the Governor of Utah, for the purpose of bringing petitioner back to Indiana for trial. In addition, the deputy prosecuting attorney of Delaware County communicated by letter the contents of said petition to the Attorney General of Indiana who in turn was in communication with the Warden of the Utah State Prison, the Executive Secretary of the Board of Pardons of the State of Utah, as well as the Extradition Clerk in the office of...