Conn v. State

and re- reversed part Affirmed part.

manded RILEY, J., J., concur.

SULLIVAN, CONN, Appellant-Defendant,

Billy J. Indiana, Appellee-Plaintiff.

STATE 24A01-0407-CR-320.

No. of Indiana. Appeals

Court

July28,2005. 6, 2005. Oct.

Transfer Denied

When the truck finally pulled over, Conn ' was still moving. driver,

The truck's Tommy Massey ("Massey"), informed Officer Mitchum that he did not have a license and handed Offi- cer Mitchum an identification card. As Massey was handing Officer Mitchum his identification, Officer Mitchum noticed that Conn's hands were hidden underneath a jacket he was sitting on and asked Conn to remove his hands from underneath the jacket. After several requests, Conn placed his hands where Officer Mitchum them, could see and Officer Mitchum no- Carpenter, Susan K. Public Defender of ticed that one of Conn's hands was band- Indiana, Sauer, J. Michael Deputy Public aged. Defender, Indianapolis, for Appellant. Carter, Steve Attorney General of During stop, Officer Mitchum Indiana, Sherman, George Deputy P. At- dispatcher learned from the Massey's General,

torney Indianapolis, for Appellee. license suspended, was the truck's lHeense plates belonged vehicle, to another and the

OPINION truck reported was as stolen Marion County. While Officer Mitchum ar- was MATHIAS, Judge. resting Massey, Conn complained that his ("Conn") Billy Conn was convicted hurt, hand and Officer Mitchum radioed Franklin Cireuit felony Court Class A for an ambulance. stepped Conn then out dealing in a drug, narcotic felony Class C truck, and Officer Mitchum noticed carrying handgun license, a without a handgun a console, near the center which D felony possession Class marijuana, had previously been hidden and Class B possession misdemeanor of a jacket. Officer Mitchum also noticed a appeals, switchblade. Conn presenting the bag, appeared narcotics, which to contain following dispositive and restated issue for sticking out jacket. of Conn's bags More review: Whether the trial court improper- were jacket. also inside Conn's $700 ly denied Conn's Motion to pursu- Dismiss bags These contained methamphetamine in ant to the Agreement Interstate on De- the amount of grams. 39.58 ("IAD"). tainers Act Concluding Conn was denied his during Officer Mitchum then retrieved the an IAD hearing, we reverse. handgun, which was a Magnum .357 loaded History Facts and Procedural hollow-point bullets, with from the truck's center retrieving console. After the hand-

On November Brookville Police ("Officer gun, Officer marijuana Mitchum noticed Terry Officer Mitchum Mitch- next to um") where Conn was sitting. After an a noticed truck cross the centerline truck, roadway inventory search of police three times and activated emergency narcotics, lights. switchblade, As the truck found more contin- blowtorch, detector, drive, small radar ued to and a Officer Mitchum observed Conn, passenger, move items in police the truck. seanner. of Conn and out of later November

On unilaterally set Shirley, the in a felony dealing A Class charged with beyond February 2004-102 carrying a felony C drug, Class narcotic IAD. Conn 180-day limitation license, felony the D Class handgun without until less than setting learn of this felony did not D Class property, receiving stolen date, B mis- trial on Febru and Class marijuana, one week before of possession 17, 2004.2 ary of a switchblade. possession demeanor en Shirley ("Shirley") Attorney Thomas setting, trial of his learned After Conn Conn, of the behalf appearance an tered for dismissal se motion pro he filed a 31, 2008. March set for jury trial was and 24, February IAD. On to the pursuant for However, appear not did Conn denied, and Conn 2004, was motion Conn's arrest. for his issued a warrant was and 17, May charged.3 On convicted as was County 2003, 17, the Franklin May On fifty-years to 2004, was sentenced Conn notice written received Prosecutor drug narcotic dealing in a for his executed peniten in a federal imprisoned was Conn conviction, consecutive sen eight-year 1 that, Elkton, pursuant tiary in Ohio handgun without carrying tence for his brought to IAD, had Conn to conviction, three-year concurrent license days. 180 trial within marijuana of possession for his sentence concurrent conviction, and a six-month set therefore Jury trial was a switch possession for his sentence 10, for November Franklin Cireuit Court appeals. now conviction. Conn blade for However, appear Shirley did 2003. Summary Chronological Case The trial. and Decision Discussion ("CCS") the trial date notice of indicated motion to dismiss The denial of a Shirley when Shirley, and not sent to was and is of law question the IAD is a was contacted, that he he indicated Hall, v. States de novo. United reviewed not re- and did the trial date unaware of Cir.1992). (9th How 1201, F.2d 1204 ceive notice. the denial ever, underlying findings absence, assert- Conn Shirley's Despite clearly erronce pursuant to are reviewed the IAD's tried within right to be ed his Id; also Birdwell see ous standard. repre- and his 180-day limitation Cir.1993). (5th 1332, Skeen, F.2d court continued The trial sentation. informed indefinitely and Conn's forty-eight Indiana is one that, be determined onee it could Conn who, the District Co along with states him, representing Shirley was still Government, are lumbia, and the Federal set. The promptly trial would be a new Bozeman, IAD.4Alabama v. to the parties they trial court also advised 146, 148, 121 S.Ct. 533 U.S. located. Shirley was reconvene onee would (2001). IAD is an inter The L.Ed.2d 188 proce uniform that creates compact state However, did not reconvene parties executing a detain- lodging and for Rather, thirty-five days dures a trial to set date. felony Class D 3. State dismissed The sen- Conn was 1. On December charge. penitentia- receiving property a federal stolen 270 months in tenced to ry. only two Mississippi Louisiana are 4. by Conn's supported both 2. This assertion the IAD. entered into that have not states 6, pp. Appellant's App. CCS. affidavit and the provides er.5 Id. The IAD expeditious for sition to be indictment, made of the in- delivery of prisoner to the receiving formation or complaint; provided that prior state for trial to the termination of court, cause in open shown his sentence in sending state and seeks prisoner or his counsel being present, to minimize interruption of the in having jurisdiction of the mat- ongoing prison mate's term. Id. ter grant any necessary or reason- able continuance.

A state bringing charges against a prisoner custody juris another IAD III(a) § (2004) Ind.Code 35-33-10-4 Art. begins diction IAD process by filing a added).6 (emphasis Hill, detainer. New York v. 528 U.S. The State contends (2000). waived 120 S.Ct. 145 L.Ed.2d 560 right his to the IAD because filed, After a he failed detainer is to the inmate object to February 23, file a the request for final 2004 disposition, trial set and the However, ting. inmate must brought be to trial waiver contemplates within 180 vol days. untary Id. relinquishment of right, a known which did not occur here. When Conn's Indiana's of IAD codification the states attorney did appear not for trial on No part: 10, 2003, Conn, se, vember pro maintained

Whenever a person has upon entered his request to be tried within the IAD's term of imprisonment in a penal or cor- 180-day period. Furthermore, when the rectional state, institution a party of and trial court 23, later set February Conn's during whenever the continuance of the 2004 trial date on December it imprisonment term of there pending is did not inform Conn of setting this until any party other any state untried 17, February 2004, upon and such indictment, notice information complaint or again Conn onee right the maintained his to basis of which a detainer has been IAD the lodged deadline.7 against timely the Conn's prisoner, he shall be brought consistent to trial assertion of rights preserves within one his hundred (180) eighty days Moreover, them on appeal. after he shall have even if Conn caused to be prosecut- properly object, delivered to the did not the failure to noti ing officer and appropriate fy the attorney court of Conn's of trial and the notifica the prosecuting jurisdiction officer's tion to days Conn six hardly before trial written notice of place the of impris- any makes alleged failure attributable to Conn.8 onment request and his dispo- a final conclude

5. A possesses prison that the defendant detainer is a notice to the authorities charges that pending against are an inmate burden under the IAD.Id. requesting prison elsewhere and the custodi- notify an to the sender of the detainer before 7. The State also asserts the trial court did not releasing Crozier, the inmate. United States v. upon have to rule Conn's motion because it (6th Cir.2001). 259 F.3d 513 pro argument was filed se. This fails because pro Conn raised through his motion se no 6. Both the IAD and Indiana's codification of fault of his own and the trial court addressed the IAD are silent as to who bears the burden Conn's motion. Had the trial court not done proving necessity reasonableness or so, attorney Conn's could-and should-have § continuance. Ind.Code 35-33-10-4 rights. asserted Conn's III; Torres, Art. United v. States 2001 WL (E.Dist. 2001 U.S. Dist. LEXIS 9669 N.Y.2001). However, only Supreme 8. The recognize Court because the federal case to Speedy generally places Trial Act waiver under IAD burden did so when the defen- defendant, proof logical on the it party to responsible dant was the for the contin- not why trial could as to ordered properly court Here, days. See Johnson than 102 in less be set Shirley did when continuance indefinite Cir.1986) (9th F.2d Stagner, 781 v. However, court did the trial appear. not reassign cases (trial actively must courts to assurance its through with not follow case within a defendant's expedite to so as reconvene would parties IAD); Clark limitations of This de- located. be Shirley could once cf. (Ind.1995) State, 551-52 N.E.2d of his prived comply to (trial reassign cases must courts necessity of or the reasonableness when 4 provisions). Rule Criminal deter- with his continuance length of Birdwell, at 13839 F.2d mined. See at notify to Conn's the failure Whether the trial (dismissal necessary where may constitute trial date of his torney continuance a one-week granted properly under the for a continuance cause IAD, later extended but a trial held IAD and outside weeks for two continuance ade limitation is 180-day the IAD's after attorney). or his defendant un issues cognizable compliance are quate However, reach need not IAD does we the IAD. der codification Indiana's issues, requires IAD as the these preju to establish a defendant require requires be reversed convictions indeed, authori dismissal; there is dice the beyond when continuances dismissal supporting jurisdictions other ty from not conducted 180-day period are not dem need that defendant proposition attorney. his or of the defendant presence Ind. IAD. under prejudice onstrate 340, 352, Mauro, 436 U.S. v. States United III(d); v. People Art. § 35-33-10-4 Code (1978); Ind. 1834, L.Ed.2d 329 56 98 S.Ct. (Colo.1984); P.2d 679 Sevigny, III(g). Art. § 35-33-10-4 668, 669, Johnson, 301 Code 278 S.C. State (S.C.1983). But, regardless S.E.2d 138 thoughtful dissent Judge Crone's While in required is not is or prejudice whether an IAD continu length claims that demonstrated amply Indiana, is prejudice and subject good-cause to the not ance is at bar. in the case IAD, at requirements open-court issue this has considered least one court or reasonable that it was possible It is Roberson v. See otherwise. and concluded schedule court to trial necessary for the (Ky.1994) 314 Kentucky, 913 S.W.2d IAD's days beyond 102 Conn's ("the But, the reason did not address limitation. 180-day length of the for the good cause there was his attor- or defendant requires the IAD added).9 continuance") In addi (emphasis a reason- granting while ney present to be if beyond the tion, perspective, a common sense necessary continuance from or able than "nothing more" required the IAD defendant so the 180-day limitation is indefinite setting of an for the good cause earliest at to trial assert his court, would the State open of the continuance apprised and be moment possible trial at its to set Conn's have been free con- length factors that render continuance. indefinite Here, after leisure necessary. or tinuance reasonable rights IAD not waive his Clearly, did query opportunity was denied emphasis the con- places Judge Crone Hill, 9. 120 S.Ct. at 528 U.S. uance. We paragraph. opening junction "or" in its continu- for the responsible Conn was acknowledge a continuance ance. reasonable, necessary only "or'" be IAD need otherwise. opinion not hold does and our by being simply recipient the unintentional that the defendant is unable to meet this burden. Importantly, the difficulties asso- of an indefinite continuance. clated with learning the reason for the The dissent also claims that we length of a very continuance is the reason have failed to reach the issue of whether for the IAD's "in the presence defendant's good there was cause to extend Conn's requirement." Miller, State v. 299 N.J.Su days beyond trial 102 the IAD deadline. (1997) ("The per. 691 A.2d 377 (1) holding Our is that the defendant's purpose of the requirement IAD's presence during the setting of a continu continuances be set the defendant's independent ance is an IAD requirement, presence is to ensure there is a record for Crozier, United States v. 259 F.3d review") added). appellate (emphasis (6th Cir.2001) (the defendant's finally The dissent asserts that our opin IAD), (2) requirement and Conn's places ion the defendant in the "driver's inability to learn of the trial court's reason seat" when it comes to determining the length for the of his continuance at the necessity or reasonableness of a continu precludes time of its issuance an honest respectfully ance. disagree. We We fail good review of whether there was cause to to see requiring how a court to allow the extend days beyond defendant during the setting IAD deadline. Because the trial court de of the length of his places continuance length termined the of Conn's continuance defendant in the "driver's seat." Either outside of presence, Conn was forced to there is or is not length cause for the reconstruct the reason length for the of his of a Allowing defendant, continuance. nearly continuance it after was extension a court on we, review such as given, court, as a reviewing are ours, a opportunity fair to know of left this with little evidence to determine what reason a ery is far from depriving a trial attempt was made to bring Conn to trial court of its discretion.11 Johnson, IAD closer to the deadline. See (courts 781 F.2d at 768 actively must reas Onee attorney Shirley located, was IAD).10 sign cases to conform to the trial court was required expediently to set assertion, In trial date in Shirley's presence. a related Conn or Judge Crone also notes that Conn failed to Roberson, ("The meet his burden Nee at SW.2d of most lenient proving good reading the absence of of the IAD cause. We does not However, agree. require court, proceeding when neither a formal in defen- but dant require, least, nor counsel for does prisoner defendant is allowed at that the or counsel, to present during be judge determination his and a present."). be and announcement length of the of Such a requirement hardly burdensome continuance, it should come as no surprise and would provided op- have Conn a fair footnote, places In its second the dissent 11. The IAD seeks to minimize interference significance length prison in the with the fact that defendant's other of sentence programs and the pur- rehabilitative offered by continuance was determined Regardless indefinite continuance. of wheth- suant to that sentence. Bozeman, 533 U.S. at 148, 121 S.Ct. 2079. The IAD does not seek previous er a trial court extends a continu- to minimize State interference with the defen- ance outside the defendant's or sets liberty. purpose justifies dant's Whether this length of an indeterminate continuance remedy the IAD's of dismissal was a matter of presence, outside the defendant's a defendant public policy by decided our General Assem- equal difficulty learning assessing has of and bly agreed when it to abide the terms of length the reason for the of the continuance. the IAD. required that is That is all delay essary. and contest to consider

portunity should present statute, to convictions court and and Conn's trial involved thereof, stand. therefore reasons, as or lack with this court beyond set trial was why his to resetting of the court's The trial deadline. the IAD resetting, not that-a simply date As continuance. of a second granting

Conclusion his counsel was such, nor neither Conn its discretion was within The open court." present to be required indeterminate the initial it granted when not have followed might The trial court However, had the continuance. to to Conn its assurance through with determina- during the right located, counsel was once his reconvene continuance length of the actual tion a violation amount to that does not but close tried as right to be press and to that majority suggests IAD. The 180-day limita- IAD's to the possible as "query" the to has defendant convictions Accordingly, Conn's tion. necessity or reasonableness court as to reversed. must be continuance, I find but of a length Reversed. in the IAD. suggestion for this support no solely rests I that determination believe J., DARDEN, concurs. court's discretion. the trial within Cf. (Ind. J., separate opin- CRONE, State, with dissents 765 N.E.2d Young trial con (stating speedy that Ct.App.2002) ion. must be congestion due to court tinuance Ind. pursuant dissenting. time" CRONE, Judge, for "a reasonable 4(B) "de that trial court's Rule Crim. "for the IAD states Article 3 delay is re aof reasonable termination court, pris in open good cause shown stan an abuse of discretion viewed under present, being his counsel oner or dard."). shown, I have has the matter jurisdiction of having court here. found, of that discretion no abuse continu necessary reasonable or grant any that a defendant majority suggests The (emphasis § Ind.Code 85-33-10-4 ance." unreason proving bears the burden added). record indicates The op. at 831 See of a continuance. ableness for the open shown cause was failed to meet that Conn has n. 6. I believe continuance on the indefinite granting of here. burden present, 10,12that Conn was November that defendants to note important It is the jurisdiction of had the pursuant expedited an who seek was nee- matter, the continuance and that granted continu- as to a one-week evidence is contested the trial court 12. The open hearing court on the motion ance of a date was sent 10 trial of the November notice and then Birdwell's counsel set- presence of Regardless, it is well to Conn's counsel. keep duty "to attorney an has tled that by two weeks postponement extended pending matters be- apprised of the status Here, hearing. the trial without N. v. Ins. Co. Ind. Ins. Co. the court." fore of Conn's granted indefinite continuance Am., (Ind.Ct.App.2000), 734 N.E.2d deter- date once it set a trial trial and then (2001). denied trans. represent- counsel was still that Conn's mined Also, specifically Fifth Circuit ing him. majority's by reli- unpersuaded 13. amI post- good cause existed for the no found that Birdwell, reaching 983 F.2d ance majority hearing; case, ponement of Birdwell's Bird- opposite In conclusion. indictment; that issue here. not reach does to dismiss well filed a motion

$35 already the IAD have been guilty found imprisoned jurisdiction, in another many request

whereas defendants who

speedy pursuant to Criminal Rule 4 only jailed recently

have been and have yet any been convicted of crime.

Thus, respective liberty interests at substantially different,

stake are as are the

purposes of respective rules. The de-

cision reached majority contravenes purposes IAD by placing defen-

dants in the driver's seat when it comes to

determining necessity or reasonable-

ness of continuance. For all these rea-

sons, I respectfully dissent.

In the Matter of the Trust Under

Last Will Testament of Edwin

NOBBE, Deceased, Petitioner, Nobbe,

Herman Susan Nobbe Munson Meyer,

and Marlene Nobbe

Appellants, Nobbe, Young, J.

Walter Delores E. Rob- Nobbe, Eugene Nobbe, Betty

ert A. O. Nobbe,

Nobbe and Appellees Leon W.

(Respondents).

No. 16A04-0411-CV-627.

Court of Appeals of Indiana.

July

Rehearing Denied Oct.

Case Details

Case Name: Conn v. State

Court Name: Indiana Court of Appeals

Date Published: Jul 28, 2005

Citation: 831 N.E.2d 828

Docket Number: 24A01-0407-CR-320

Court Abbreviation: Ind. Ct. App.