Ulloa v. State

• Decision Date: 11 March 2013
• Docket Number: No. 49A02–1206–CR–463.,49A02–1206–CR–463.
• Citation: 985 N.E.2d 79
• Parties: Carlos ULLOA, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

985 N.E.2d 79

Carlos ULLOA, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1206–CR–463.

Court of Appeals of Indiana.

March 11, 2013.

Appeal from the Marion Superior Court; The Honorable Steven R. Eichholtz, Judge, The Honorable Grant W. Hawkins, Judge, The Honorable Christina R. Klineman, Master Commissioner; Cause No. 49G05–1105–FA–33025.

Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

KIRSCH, Judge.

Carlos Ulloa (“Ulloa”) appeals his convictions on two counts of dealing in cocaine,¹ each as a Class A felony, and one count of dealing in cocaine ² as a Class B felony. On appeal, Ulloa contends that the trial court erred in denying his motion for discharge pursuant to Indiana Criminal Rule 4(B) because he was not brought to trial within seventy days of his pro se request for a speedy trial.

We affirm.

FACTS AND PROCEDURAL HISTORY

A paid confidential informant (the “CI”) for the Indianapolis Metropolitan Police Department made a controlled buy of cocaine from Ulloa on each of the dates of April 26, 2011, May 6, 2011,³ and May 10, 2011. On May 16, 2011, the State charged Ulloa with three counts of Class A felony dealing in cocaine and three counts of Class C felony possession of cocaine. During his initial hearing, Ulloa told the trial court that he intended to hire private counsel, and on May 20, 2011, Ronnie Huerta (“Huerta”) filed his appearance as Ulloa's attorney. Appellant's App. at 8–9. Ulloa's case was set for jury trial on November 9, 2011. On the morning of trial, however, Ulloa fired Huerta because he had failed to file a motion to suppress. The trial court granted Huerta's motion to withdraw and continued the case to allow Ulloa the opportunity to find a new lawyer. Tr. at 302.⁴

Eight days later, on November 17, 2011, Ulloa, who had not yet obtained replacement counsel, sent to the trial judge a letter, which the trial court deemed to be a pro se request for a speedy trial.⁵ During a review of counsel hearing, held on November 21, 2011, the trial court learned that Ulloa needed appointed counsel. Id. at 308. That same day, the trial court appointed Attorney Matt Abels (“Abels”) as Ulloa's public defender. Id. at 309. Abels was not present at the hearing, but filed his appearance the next day. Ulloa then asked the court if he could say a few words. After advising Ulloa that it would be best to first speak to counsel, Ulloa said, “I would like my attorney to do a Motion to Suppress for the credibility of the CI.” Id. The trial court responded, “Okay. Talk to your lawyer about those things.” Id. “[T]o give enough time for the new lawyer to get up to speed,” the trial court proposed a trial date of January 25, 2012—a date that fell within the seventy-day period commencing with the November 17, 2011 letter. Id. at 310. When the prosecutor stated she was going to be out of town, the trial court set the trial for February 8, 2012–a date that fell outside the seventy—day window for a speedy trial. Ulloa did not object, but merely stated, “What about the Motion to Suppress, your Honor?” Id. The trial court responded: “Talk to your lawyer about that. If he thinks it's a good idea, he'll file a motion and we'll set it. So you have enough time to get that done between now and then. And your final pretrial will be February 2nd at 1:30.” Id. Again, Ulloa did not object to the trial date.

Abels and Ulloa attended a pre-trial hearing on both February 2 and February 7, 2012—both dates that fell after the seventy-day deadline. Id. at 12. During the February 7 hearing, the trial court granted the State's motion to amend Ulloa's information “by interlineation,” changing Count I from a Class A to a Class B felony, and changing Count II from a Class C to a Class D felony. Appellant's App. at 12–13, 24–25. When asked by the trial court whether he had any objections, Abels responded, “No.” Id. at 317. Abels neither objected to the trial date, nor did he make a motion for discharge during the pre-trial hearings on February 2 and February 7, 2012.

On February 8, 2012—the day of trial—Abels moved for Ulloa's discharge pursuant to Criminal Rule 4(B). The trial court, finding that Ulloa did not object to the setting of the trial outside the speedy trial window and that Ulloa's counsel was appointed in sufficient time to object to the trial date, concluded that Ulloa was not entitled to discharge. The trial judge recused, and Ulloa's case was reassigned to another court. Id. at 337.

Ulloa's case proceeded to trial on April 19, 2012, and the jury found him guilty of two Class A felonies with their respective lesser-included two Class C felonies, and one Class B felony with its respective lesser-included Class D felony. At sentencing, the trial court merged the lesser included convictions for possession of cocaine into their respective counts of dealing in cocaine and sentenced Ulloa to an aggregate executed sentence of twenty years in the Department of Correction. Ulloa now appeals.⁶

DISCUSSION AND DECISION

Ulloa contends that the trial court erred in denying his motion for discharge because he was not brought to trial within seventy days of his pro se request for a speedy trial. The speedy-trial issue before us involves a pure question of law; accordingly, the appropriate standard of review is de novo. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind.2012).

The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. Id. This fundamental principle of constitutional law has long been zealously guarded by our courts. Id. “Indiana Criminal Rule 4 generally implements the constitutional right of an accused to a speedy trial.” Id.Indiana Criminal Rule 4(B)(1) provides in pertinent part that a defendant:

shall be discharged if not brought to trial within seventy (70) calendar days from the date of [a speedy/early trial 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.

Under Criminal Rule 4(B), “the State has an affirmative duty to try an incarcerated defendant who requests a speedy trial within seventy days.” McKay v. State, 714 N.E.2d 1182, 1186 (Ind.Ct.App.1999). “The defendant does not have an obligation to remind the State of this duty or to remind the trial court of the State's duty.” Staples v. State, 553 N.E.2d 141, 143 (Ind.Ct.App.1990) (referring to one-year limit of Indiana Criminal Rule 4(C)), trans. denied. Once the time period under Criminal Rule 4(B)(1) has elapsed, a defendant need only move for discharge. See State v. Jackson, 857 N.E.2d 378, 380 (Ind.Ct.App.2006).

Criminal Rule 4(B), however, “was designed to assure criminal defendants speedy trials, not to provide them with a technical means of avoiding trial.” Smith v. State, 802 N.E.2d 948, 951 (Ind.Ct.App.2004). Therefore, “a defendant waives his right to a speedy trial if he is aware or should be aware of the fact that the trial court has set a trial date beyond the applicable time limitation, and he does not object to the trial date.” Todisco v.. State, 965 N.E.2d 753, 755 (Ind.Ct.App.2012) (referring to one-year limit of Indiana Criminal Rule 4(C)), trans. denied. “[I]t is the defendant's ‘obligation to object at the earliest opportunity so the court can reset the trial for a date within the proper period. Failure to voice a prompt objection is deemed a waiver of the issue.’ “ Id. (quoting Hood v. State, 561 N.E.2d 494, 496 (Ind.1990)).

Ulloa retained Huerta as private counsel on May 20, 2011—four days after Ulloa had been charged with the six felony counts. Prior to the commencement of trial, Ulloa expressed dissatisfaction with Huerta's failure to file a motion to suppress. The trial court stated: “[I]f you're not happy with your lawyer, don't have faith in him, even though I think he's advised you properly, I'll grant you a continuance to find a new lawyer. Is that what you want to do?” Tr. at 302. Ulloa responded, “Yes.” Id. At that point, it was clear that Ulloa still intended to be represented by counsel.

Eight days later, on November 17, 2011, Ulloa, who had not yet obtained replacement counsel, sent a letter to the trial judge. This letter provided:

Honorable Judge

I would like to address to the court a “ Judicial Notice ” concerning my legal defense of my attorney filing a Motion to Sup[p]ress in my behalf challenging the Credible [sic] and Reliability of the CI that was used in the alleged Drug Buy that CI had done a Control Buy.

[I]n my case, the CI citing under Methene v. State also Gates v. Illinois was not searched befor[e] being used under control circumstances when the officer sent the CI to purchase alleged drug in my case for which I'm charged with Dealing in Cocain[e].

Also the affidavit failed to show CI was Credible and Reliable and that the CI was properly search [sic] for drugs befor[e] and after the alleged control buy.

In my case and the legality for these strict procedure [sic] that were not proper under my 4th Amend[ment] Const. After my own research in Methene v. State the Ind[iana] Supreme Court ruled that the Probable Cause Affidavit failed to show the Control Buy were adiquit [sic] and in that the Information in the Affidavit was stale in showing Probable Cause in my case. Wherefor[e] I ask that my attorney be informed that this is my decision and respectfully ask this court to suppress evidence in this motion.

If this motion is denied by this court, I request a fast and speedy jury trail [sic] on my behalf.

Appellant's App. at 35. While Ulloa never...