Townsend v. State

• Decision Date: 21 November 1996
• Docket Number: No. 71A03-9601-CR-16,71A03-9601-CR-16
• Citation: 673 N.E.2d 503
• Parties: Michael TOWNSEND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 503

673 N.E.2d 503

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

No. 71A03-9601-CR-16.

Court of Appeals of Indiana.

Nov. 21, 1996.

Thomas F. Strickler, Mishawaka, for Appellant-Defendant.

Pamela Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Office of Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

GARRARD, Judge.

Michael Townsend ("Townsend") appeals his convictions of distributing a substance represented to be a controlled substance, a class C felony, possession of a substance represented to be a controlled substance, a class C misdemeanor, and resisting law enforcement, a class A misdemeanor, after a trial by jury. We affirm in part, and reverse in part.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the verdict show that on the afternoon of June 8, 1995, the South Bend Police Department was conducting an undercover drug operation. Townsend waved police over to a curb, pulled out a black plastic baggie which contained several clear plastic baggies of a yellowish rock-like substance, and sold what appeared to be cocaine to police for $20 of marked money. After the transaction, additional police officers approached Townsend, identified themselves as police officers and asked him to stop. Townsend fled on his bicycle and eventually ran into a nearby apartment. He was apprehended and arrested inside the apartment after a brief scuffle. None of the marked money, plastic baggies, or substances which appeared to be cocaine were found on Townsend. After a search of the area in which Townsend fled, police found a black plastic baggie and one clear plastic baggie with a "rock" of what appeared to be cocaine on the ground approximately 25 feet from where the transaction occurred. These were identified as being the same in appearance as the baggies that Townsend possessed during the transaction. The substance purchased from Townsend as well as the substance found near the transaction were both tested by a state police chemist and found to contain no controlled substance.

On June 9, 1995, the prosecutor's office filed an information charging Townsend with possession of a substance represented to be a controlled substance, a class C misdemeanor, distributing a substance represented to be a controlled substance, a class C felony, and resisting law enforcement, a class A misdemeanor. At his initial hearing on June 12, 1995, Townsend entered a plea of not guilty, requested a public defender and made an oral motion for a speedy trial. The initial hearing was continued until June 26, 1995, at which time Townsend appeared with counsel. Townsend's request for a reduction in bail was denied and his case was set for trial on August 22, 1995, 71 days after his request for a speedy trial. Townsend did not object to the trial setting. On July 26, 1995, a hearing was held on the state's July 18, 1995 filing of an habitual offender charge as well as Townsend's motion to compel fingerprints. On August 1, 1995, the trial date was affirmed for August 22, 1995 without objection from Townsend.

On August 17, 1995, Townsend's initial trial counsel withdrew and Townsend appeared with new counsel. For the first time, Townsend moved to dismiss pursuant to Ind.Crim.Rule 4 and the trial court denied his motion. Townsend's trial began on August 22, 1995, as scheduled, at which time he filed a motion to dismiss alleging that the information filed by the state violated his rights of equal protection and due process and that he was denied his right to a speedy trial pursuant to Crim.R. 4. The trial court denied his motion, the trial proceeded, and Townsend was found guilty of all three counts as well as being an habitual offender. Townsend was incarcerated from the time of his arrest through his trial.

Additional facts will be supplied as needed.

ISSUES

Townsend raises four issues on appeal which we restate as follows:

I. Whether the trial court improperly denied Townsend's motion to dismiss based upon a violation of his right to a speedy trial pursuant to Ind.Crim.Rule 4(B)(1).

II. Whether Townsend's trial counsel's failure to object to the setting of the trial date beyond the 70 day period prescribed under Ind.Crim.Rule 4(B)(1) resulted in ineffective assistance of counsel.

III. Whether Townsend's due process rights were violated by a charging information which inadequately alleged the charge of distributing a substance represented to be a controlled substance, a class C felony.

IV. Whether Townsend's separate convictions for distributing a substance represented to be a controlled substance and possession of a substance represented to be a controlled substance violated his right against double jeopardy.

DISCUSSION AND DECISION

I.

Townsend contends that his right to a speedy trial pursuant to Ind.Crim.Rule 4(B)(1) was violated. Crim.R. 4(B)(1) provides, in part:

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 said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar....

Crim.R. 4(B)(1). ¹ Our supreme court has held that "a defendant must object at the earliest opportunity when his trial is set beyond the time limitations of Crim.Rule 4. [citation omitted]. If an objection is not timely made, the defendant is deemed to have acquiesced to the later trial date." Wright v. State, 593 N.E.2d 1192, 1195 (Ind.1992), cert. denied. 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540 (1992). See also Pasha v. State, 524 N.E.2d 310, 312 (Ind.1988); Smith v. State, 477 N.E.2d 857, 861-62 (Ind.1985).

In Wright, the court held that the defendant's delay in waiting nearly a month before filing an objection to the trial date allowed a reasonable assumption that he abandoned his request for a speedy trial pursuant to Crim.R. 4(B)(1). Wright, 593 N.E.2d at 1195. When a movant for an early trial date on a date within the 70 day period does not then object to a trial date which falls outside the limit, he has abandoned his request. James v. State, 622 N.E.2d 1303, 1306 (Ind.Ct.App.1993). In recognizing the defendant's obligation to call to the trial court's attention a trial date which had been set outside the time frame allowed by Crim.R. 4(B), our supreme court noted in Utterback v. State, 261 Ind. 685, 310 N.E.2d 552 (1974), that "[t]he purpose of the rules is to assure early trials and not discharge defendants." Id. at 553-54.

Townsend orally requested a speedy trial at his initial hearing on June 12, 1995. The initial hearing was continued to June 26, 1996 at which time the trial court set a trial date of August 22, 1995, 71 days from Townsend's request. Townsend failed to object to the trial court's setting of the trial date which fell outside of the 70 day period. Townsend contends that his motion to dismiss filed on August 17, 1995, was an implied objection to the trial date. However, even if this court accepts Townsend's contention, his motion to dismiss was filed almost two months after the trial court set the trial date. Townsend failed to object at the earliest opportunity. An earlier objection would have allowed the trial court to reset the trial for a date within the proper period. Pasha, 524 N.E.2d at 312. Therefore, he acquiesced to the later trial date. We find no error.

II.

Townsend argues, in the alternative, that he was denied effective assistance of counsel in that his counsel failed to explicitly object to the scheduling of the trial date beyond the 70 day period provided in Crim.R. 4(B)(1). "In order to succeed on a claim of ineffective assistance of counsel, an appellant must show that: 1) his counsel's performance fell below an objective standard of reasonableness; and 2) but for counsel's deficient performance the result of the proceedings would have been different." Fugate v. State, 608 N.E.2d 1370, 1372 (Ind.1993). We find that Townsend's claim fails both prongs of the Strickland test.

As to the first prong, it would certainly appear reasonable for defense counsel to object to a setting beyond the prescribed seventy days. Yet it is not objectively unreasonable for counsel to accept a firm trial setting beyond but close to the seventy day date. As already noted, the purpose of the rule and the motion is to secure an early trial. Counsel accepted the setting and is presumed competent. At least in the absence of evidence that the court and the defense were ready and available for trial at an earlier date, such an acceptance cannot be deemed unreasonable.

In Rhoton v. State, 575 N.E.2d 1006 (Ind.Ct.App.1991), trans. denied, the defendant contended that he was denied effective assistance of counsel because his trial attorney failed to object to the trial court's rescheduling of his trial beyond the prescribed limits of Ind.Crim.Rule 4(C). ² We found that the defendant failed to demonstrate that but for counsel's conduct, the result of the proceeding would have been different. Although Rhoton involved Crim.R. 4(C), the holding is still applicable to the case at bar.

If timely objection to the scheduling of his trial outside the proscribed time limit had been made, then, the court would have been put on notice that it was scheduling [the defendant's] trial beyond the one-year limit. Thus, the trial court could have either reaffirmed the March 6, 1984 trial date, rescheduled [the defendant's] trial to a date no later than [the end of the one year period], or on its own motion entered an order continuing the trial due to a congested calendar. In either event, [the defendant] would not have been automatically discharged.

Id. at 1011. Additionally, if Townsend's counsel had objected, the...