*1 Affirmed. Lowdermilk, J., concur.
Robertson, J., and C. Reported N.E.2d 418. at 355 Note. — of Indiana.
Dan Rex Rehearing 2, 1976. denied December Filed October 3-175A8. [No. 3, 1977.] Transfer denied March *2 Gemmer, Wayne, J ohn P. аppellant. of Fort for Sendak, Attorney Theodore General, L. Wesley T, Wilson, Deputy Attorney General, appellee. for Appellant by Rex jury wаs tried and con-
Garrard, J. possessing delivering victed of a controlled substance. The jury penalty imprisonment assessed his years. for ten presentenсe investigation, After the court sentenced Rex ac- cordingly and ordered that the sentence be executed. . appeal
The first contеntion on is that the court erred in granting requested change not a of county. venue from the Although request admittedly made more than ten days plea aftеr entered his guilty, of not Rex asserts request proviso that his falls within the of Indiana Rules Procedure, Criminal, of Rule which states:
party knowledge how was issue within ten may change, and self file the or from the “Provided, however, specifically alleging be reviewed it shall have the application, by of the cause for the exercise of due discovered, why county only for such [10] which shall be after right cause could days, when the cause was the facts abuse to file сounter-affidavits on. such change if the and the time above diligence. discretion.” verified showing not have been discovered applicant venue from the ruling by limited, the cause for a first Any first obtains discovered, party opposing he judge him- may support contention, In of this he relies on Hanrahan 241 wherеin our Supreme Court held that under former Rule 1-12 it would constitute abuse of discretion for the trial court to sum marily deny timely filed, properly verified change mоtion for totally by of venue which stood prosecution. unrebutted (cid:127) equally Hanrahan is discretion described The abuse of to have a defendant is entitled applicable where under CR. application, It has no the merits. his motion considered on 12, a defendant is entitled Under CR. however, in this case. сhange venue ruling motion for a on merits of his to a The court must consider situations. in either of two merits of motion if it was filed within ten [10] days guilty (or plea within entered a defendant after setting if trial days case is set for trial after the five [5] is made less than ten [10] days after the plea entered). limits, the court filed within these time the motion is not If only if of the motion the merits defendant must consider change enough grounds early file for did not know required by supports timely if he the motion as motiоn and above-quoted proviso of CR. thirty-five days entered after he motion was filed Rex’s Although guilty. supported the motion was plea of not his specifiсally no affidavit, affidavit made disclosure *3 why alleging the when cause was first discovered or timely The motion could not have been filed. change set fоrth in the affidavit consist grounds of venue for conclusory “opinion” pre-trial that of merely because of Rex’s No not a fair trial. press, he could have publicity in the stories, photos, as exhibits. etc. were attached specific news alleged publicity that effects of the the affidavit While immediately ascertainable, the affi not and were cumulative identify single item, a date specifically news did not davit publication of a which Rex the namе publication, or even short prejudicial publicity. This falls far carried contended spe requirement set forth that movant proviso’s change showing the cause for cifically facts diligence. so, establishing the court heard Even his facts making ruling. was its There argument counsel error, (1972), denying motion. Nelson v. Statе in Cf. no 336. 389,287 N.E.2d 259 Ind. denying
It is asserted the court erred in
a motion to dismiss
entrapped
support,
was
because Rex
as a matter of law. In
argues
police
probable
Rex
that
had
to
no
cause
suspect
initiating
See, Payne
plan.
him before
their
394,
v. State
App.
whether or not:
[*] [*] [*] Any d) any including type article but not limited drug any proscribed to any confiscated or obtained in [was ?] way any оther from the premises defendant or from present prior February 24, where the defendant was 1974.” adopt 1. police Rex contends we should the “uncоnscionable conduct” by majority applied (5th 1962), standard v. U.S. Williamson Cir. 311 F.2d cert. den. 381 U.S. In Williamson the court reversed upon by a conviction based evidence obtained an informant. Under an arrangement proposed government officers, the informant was to specified bounty particular receivе a on each of three individuals if *4 they might a could be convicted crime as result he evidence procure against “contingent arrange them. Thе this found fee” ment constituted basis for reversal. The facts before us indicate no arrangement such in this case. We need not consider whether under activity government other agents circumstances the nature of the of the might See, however, plurality concurring affect result. and opinions Hamptоn (1976), in v. U.S. 96 St. Ct. 1646. 108 granting a mis- in not that court erred
Rex contends Rex had that of the state’s witnesses testified trial when one marijuana to sell previously and sold him offered arguably testimony drugs.” was him “hard Such However, purview of the court’s order. within object questions At no to asked. some did not violating testimony suggest time did he that request to admonishment He did not order in limine. circum- jury, for mistrial. Under such nor did he ever move complain. Pettigrew (1975), stances, now he cannot State 390, 332 App. N.E.2d Finally, the cоurt reversible Rex contends that committed punishment jury pursuant permitting the to assess his in error having 1971, without the benefit of IC 35-8-2-1 investigation report prescribed prеsentence statutes, 1971, He that 35-4.1-4-9. asserts these IC jury together, require a trial to first read bifurcated when argument guilt punishment. His and then determine Supreme rejeсted by recently and our Court considered 381, (1976), 264 345 Ind. N.E.2d 229. Pulliam v. State pointed in the Furthermore, as out American Bar Association Sentencing 1.1, Relating Alternatives, p. draft, Standards § sentencing criticism, though jury come under has even sentencing important function is whether most de probation. Judge placed As Lowdermilk on fendant will be App. v. pointed out in Grzesiowski Ind. though jury fixes the term even probation retains the imprisonment, the court assessment presentence investigation rеport has the benefit pronounces sentence. he error, judgment being no is affirmed. There Staton, P.J., opinion. concurs; J., concurs and files Hoffman, Cоncurring Opinion majority’s As to the concur. discussion P.J. I Staton, allege think Rex’s failure to 12,1 “when the do Rule *5 A cause first fatal his motion. series discovered” is meaningless. publications requirement The could make this prejudicial publications could nature of be cumulative. arbitrary. discovery Rex failed A date would best Since be identify publications dates, or their there no error denying his motion. Reported at 355 Note. —
V.I.P. Limousine Service, Herider-Sinders, Inc. v. Inc. Filed
[No. 2-774A161. October 1976.]