Taylor v. State, 3--675A107

• Citation: 171 Ind.App. 476,358 N.E.2d 167
• Decision Date: 16 December 1976
• Docket Number: No. 3--675A107,3--675A107
• Parties: Robert Michael TAYLOR, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 167

358 N.E.2d 167

171 Ind.App. 476

Robert Michael TAYLOR, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--675A107.

Court of Appeals of Indiana, Third District.

Dec. 16, 1976.

Rehearing Denied Feb. 2, 1977.

Fergus M. Kear, Peebles, Kear & Rogers, Thomas L. Ryan, Wyss, Mochamer, Roby, Ryan, Myers & Raff, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.

GARRARD, Judge.

Appellant Taylor was convicted of delivering a controlled substance, cocaine, and was sentenced to a determinate term of five years. He challenges the sufficiency of the evidence, a limitation imposed on cross-examination of a police officer, and the timeliness of the sentencing procedure. We affirm.

I. Sufficiency of Evidence

The evidence favorable to the state discloses that on February 26, 1974 Taylor offered to sell cocaine to a police informant. The informant reported the offer to the police and a controlled purchase was arranged. On February 28 the informer and Police Officer Silva went to Taylor's residence. When they were admitted, they asked if Taylor had any cocaine. He replied affirmatively, and went to his refrigerator where he secured two tinfoil wrapped packets. The informant gave Taylor twenty dollars and took the two packets. Subsequently analysis revealed their contents to be cocaine.

In attacking the evidence, Taylor points to several inconsistencies developed at trial between the accounts given by Silva and the informant. While these conflicts relate to collateral matters, Taylor argues that they render the state's case so unsatisfactory as to create a reasonable doubt of Taylor's guilt as a matter of law. We disagree. The incidental inconsistencies did not render the state's evidence wholly unbelievable. Accordingly, while the conflicts serve as a basis for attacking the credibility of the witnesses and the weight to be given their testimony, the resolution of the question was for the jury. We may not now reweigh the evidence. Turner v. State (1972), 259 Ind. 344, 287 N.E.2d 339.

II. Limitation on Cross-Examination

At trial, Officer Silva was subject to vigorous cross-examination regarding the nature of the neighborhood surrounding Taylor's residence. Taylor was permitted to elicit from Silva a description of the street for two blocks north of Taylor's house; a statement that a street intersected defendant's street to the south of Taylor's house and a description of that street; a statement that Silva could recall no large billboards to the south of Taylor's house; a further description of the street which supposedly intersected sought of Taylor's house; a statement that Silva recalled no traffic signs at the intersection; and, finally, a display of Silva's confusion when told that the street upon which Taylor lived came to a dead end slightly south of Taylor's residence. The state then objected to further questioning along this line and was sustained. Later, the court sustained a question positing the existence of the billboard. The court permitted questions which demonstrated that Silva could not recall upon which side of the street Taylor's house was located, but sustained an objection when Silva was asked to again describe the street to the north of Taylor's house.

Taylor argues that the court committed reversible error in limiting the cross-examination of Silva. He correctly asserts that upon cross-examination he is entitled to probe the credibility of the witness, and that in so doing he is not limited to the facts testified to on direct examination. Ray v. State (1950), 228 Ind. 706, 95 N.E.2d 212.

Nevertheless, the trial court is invested with broad discretion in controlling cross-examination. We will not find reversible error unless there is a manifest abuse of that discretion. Franks v. State (1975), Ind., 323 N.E.2d 221; Traylor v. State (1975), Ind.App., 326 N.E.2d 614.

Here the court permitted Taylor to establish for the jury Silva's faulty memory of the neighborhood. Taylor presented the results of Silva's confusion in an effective fashion in final argument. We find no manifest abuse of discretion in the limitations imposed by the court's rulings which precluded questions which were essentially repetitious at that point in the examination. See, Merry v. State (1975), Ind.App., 335 N.E.2d 249 III. Improper Sentencing

The jury returned its verdict on July 25, 1974, and the court entered a judgment of conviction the same day. A presentence investigation was ordered with the report to be filed July 31, 1974. On July 31, Taylor appeared in court, but his counsel was absent due to illness. The court advised Taylor of his right to appeal, and the procedure for perfecting an appeal, but no other proceedings were had on that day. The presentence investigation report was filed August 22. On September 23, 1974, Taylor filed a motion to dismiss and set aside the conviction. On October 11, the court denied Taylor's motion and imposed sentence. The court entered the sentence as a nunc pro tunc entry, apparently as of the date of conviction.

Taylor asserts that the failure of the court to sentence him within thirty days after the verdict of guilty is a violation of Indiana Rules of Procedure, Criminal Rule 11 and requires that he be discharged.

We first point out that the date of Taylor's sentencing was October 11, 1974. The purported nunc pro tunc was of no effect. While such an entry can be made to enable the court's records to speak the truth as to what previously occurred, it cannot supply an action which was not in fact taken. Perkins v. Hayward (1892), 132 Ind. 95, 31 N.E. 670; Smith v. State (1880), 71 Ind. 250.

Criminal Rule 11 provides in part:

'In all courts of superior jurisdiction having general jurisdiction to try felony charges, the trial court shall sentence a defendant convicted in a criminal case on a plea of not guilty within thirty days of the finding or verdict of guilty.'

The rule then continues by specifying what the court should advise a defendant regarding rights of appeal and concludes with the requirement that a record be made of the entire proceeding.

Unlike the provisions of CR. 4, the rule does not call for the discharge of a defendant where the time limits prescribed and not met. As the court stated in Alford v. State (1973), Ind.App., 294 N.E.2d 168, operation of the rule does not affect the guilt determining process and does not involve an accused's constitutional right to speedy trial.

A number of decisions have considered this portion of CR. 11 since its adoption. However, none have directly examined the remedy if the rule is found to have been violated. It has been recognized that the court is excused from exact compliance where there was 'good cause' for the delay. See, Alford, supra; Arnold v. State (1973), Ind.App., 300 N.E.2d 135. Such cause may be presumed where the record is silent as to the reason for delay and the defendant made no objection. Moore v. State (1972), 154 Ind.App. 482, 290 N.E.2d 472. Furthermore, if the defendant sought the delay he may not complain. Moore, supra; Stiles v. State (1973), Ind.App., 298 N.E.2d 466. Nor may he complain if the court set a sentencing date beyond the thirty-day limit and the defendant made no objection. Stout v. State (1974), Ind., 319 N.E.2d 123. However, the court in Stout was careful to point out that it was not holding, nor did the opinion in Arnold stand for the proposition, that the burden is on a defendant to procure sentencing so that he may be said to waive any delay unless he has requested compliance with the rule. In other words, Stout makes clear that it is the duty of the court to impose sentence in a timely fashion.

But what is to be the remedy if the court simply without 'good cause' neglects to sentence a defendant until the thirty-day period has expired and the defendant did nothing to procure the delay?

Since violation of the prompt sentencing requirement is wholly collateral to the guilt finding process, no purpose is served by the grant of a new trial. Since the error concerns only the promptness of the court's action, the case cannot be remanded with instructions to correct the error. It appears there are two potential remedies. ¹

One is to permit the defendant to compel the court to discharge its responsibility without further delay. In cases where the sentence is mandatory that would work no disadvantage upon the defendant. It would fulfill the purpose of the rule enunciated in State ex rel. Stiles v. Hendricks Cir. Ct. (1972), 258 Ind. 318, 281 N.E.2d 89, to expedite the early appeal and final disposition of the case. Furthermore, if initiated by motion to pronounce sentence addressed to the trial court, we do not believe the remedy would be calculated to substantially prejudice the defendant in those cases where sentencing latitude exists. It would not alter the duty of the court to comply with the rule and promptly sentence defendants without the necessity of their requesting the court to act.

The other alternative is to require that the defendant be discharged since a new trial would serve no useful purpose. It appears to us that the impact of this choice is out of proportion to the evil sought to be corrected. It would permit one accused and properly found guilty of committing a crime to escape any penalty for his offense although his constitutional rights were fully adhered to and his only injury consists of the delay which actually occurs. Nevertheless, Taylor urges this is the mandate of a line of decisions construing our prior statutory law. ²

Of these cases discussing the duty of the court to promptly impose sentence, only two have found discharge to be the appropriate remedy.

In Smith v. State (1919), 188 Ind. 64, 121 N.E. 829, a grand jury had returned two indictments against the defendant. On March 19, 1917, the defendant entered guilty pleas to each indictment. The court...