Pursuant to Ind.Appellate Rule 65(D), Oct 29 2013, 5:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK I. COX GREGORY F. ZOELLER
The Mark I. Cox Law Office, LLC Attorney General of Indiana
Richmond, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHAD MALONE, )
)
Appellant-Defendant, )
)
vs. ) No. 89A01-1302-CR-71
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WAYNE CIRCUIT COURT
The Honorable David A. Kolger, Judge
Cause No. 89C01-1109-FA-24
October 29, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Chad Malone was convicted of two counts of Class A felony attempted murder.
He now appeals, arguing that the trial court erred in denying his request for a seventh
continuance just before trial. Malone also argues that his seventy-five-year sentence is
inappropriate in light of the nature of the offenses and his character. We conclude that
the trial court did not err in denying Malone’s request for a seventh continuance and
Malone’s sentence is not inappropriate. We affirm.
Facts and Procedural History
One afternoon in September 2011, Valerie Grubbs had a disagreement with Carey
Parkhurst and Corey Groce. Valerie told Malone about it, and they drove around looking
for Carey and Corey. They found the pair sitting in a gray sedan in the drive-through
lane of a nearby McDonald’s in Richmond. As Valerie pulled her car alongside the
sedan, Malone pulled out a gun and fired six shots at Carey and Corey. Valerie and
Malone fled the scene.
Carey and Corey were treated for gunshot wounds at a local hospital. Carey had
been shot in the chest and right arm. Corey had also been shot in the arm. Corey’s
wounds required surgery in which veins from his leg were used to repair veins in his arm.
Both eventually recovered, though Corey has numbness in his arm and limited use of his
hand.
The State charged Malone with two counts of Class A felony attempted murder.
Malone was represented by a series of attorneys from the local public defender’s office.
The first two public defenders represented Malone until their departure from the office.
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The third public defender was assigned to Malone’s case in March 2012. In their
preparations, the three attorneys were granted a total of six continuances.1 See
Appellant’s App. p. 98.
In November 2012, two weeks before Malone’s jury trial, a new attorney
unexpectedly entered his appearance on Malone’s behalf. Id. at 89. The attorney
requested a seventh continuance, stating that Malone’s family had recently acquired
funds to hire private counsel. Id. at 90. The trial court denied the request for a seventh
continuance.
After a three-day trial, a jury found Malone guilty on both counts. The trial court
sentenced Malone to thirty-five years on Count I and forty years on Count II, to be served
consecutively, for a total executed sentence of seventy-five years.
Malone now appeals.
Discussion and Decision
Malone makes two arguments on appeal: (1) the trial court erred in denying his
request for a seventh continuance and (2) his sentence is inappropriate in light of the
nature of the offenses and his character.
I. Continuance
Malone argues that the trial court erred in denying his motion for a seventh
continuance. Determining whether to grant a continuance for a motion that is not based
on statutory grounds is within the discretion of the trial court. Evans v. State, 855 N.E.2d
378, 386 (Ind. Ct. App. 2006), reh’g denied, trans. denied. We will not reverse the trial
1
An additional continuance was required in December 2011 due to court-calendar congestion.
See Appellant’s App. p. 3 (CCS).
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court’s decision unless there is a clear showing that the trial court has abused its
discretion and that the defendant has been prejudiced by the denial. Id.
Malone sought a seventh continuance in November 2012, just two weeks before
his jury trial, because he wished to be represented by private counsel rather than a public
defender. The Sixth Amendment guarantees a criminal defendant’s right “to have the
assistance of counsel for his defense.” Lewis v. State, 730 N.E.2d 686, 689 (Ind. 2000).
A corollary of this right is the right to choose counsel when a defendant has the financial
means to do so. See id. (citations omitted). But the right to counsel of choice is not
absolute—it must be exercised at the appropriate stage of the proceeding. Id. (citations
omitted). “Continuances sought shortly before trial to hire a new attorney are disfavored
because they cause substantial loss of time for jurors, lawyers, and the court.” Id.
Here, Malone was granted six continuances. He sought a seventh because he
preferred to have private counsel, rather than his public defender, represent him at trial.
But the charges against him had been pending for fourteen months, and trial was two
weeks away. And there is no indication that private counsel did not receive all of
previous counsels’ material—counsel filed no motions to that effect. Furthermore,
Malone fails to explain how he was prejudiced by the denial of his motion for a
continuance. While Malone argues that private counsel “may have” been able to conduct
additional discovery, this is merely speculation. We find no error here.2
2
Malone also argues that the trial court should have advised him that if he hired a new attorney,
the court would not grant a continuance to allow the new attorney time to get up to speed. Appellant’s Br.
p. 10. He cites Robinson v. State, 724 N.E.2d 628 (Ind. 2000), as support for his claim. We do not read
Robinson to require such an advisement. Even so, it is not clear how the trial court could have advised
Malone about future continuances because it does not appear that Malone gave any warning that he
planned to hire a new attorney.
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II. Sentence
Malone also contends that his seventy-five-year sentence is inappropriate in light
of the nature of the offenses and his character.
Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences through Indiana Appellate Rule 7(B), which
provides that a court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Reid v. State, 876
N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). When assessing the nature of the
offense and the character of the offender, we may look to any factors appearing in the
record. Stetler v. State, 972 N.E.2d 404, 408 (Ind. Ct. App. 2012), trans. denied. The
defendant has the burden of persuading us that his sentence is inappropriate. Reid, 876
N.E.2d at 1116 (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
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crime, the damage done to others, and a myriad of other factors that come to light in a
given case. Id. at 1224.
Malone was convicted of two counts of Class A felony attempted murder. The
sentencing range for a Class A felony is twenty to fifty years, with thirty years being the
advisory term. Ind. Code § 35-50-2-4. The trial court sentenced Malone to thirty-five
years on Count I and forty years on Count II, to be served consecutively. Both sentences
are within the statutory range.
Regarding the nature of the offenses, there is nothing in the record that indicates
that Malone’s sentences are inappropriate. Malone tracked his victims to a local
McDonald’s—where children were playing nearby—and shot them numerous times at
close range while they were waiting in the drive-through line. The nature of the offenses
is serious.
Regarding Malone’s character, he has a juvenile history that includes arrests for
offenses that would be felonies if committed by an adult, including burglary and sexual
battery.3 His criminal history includes misdemeanor convictions for theft and possession
of marijuana. Just before he committed the instant offenses, Malone was arrested and
charged with Class D felony criminal recklessness for firing a gun inside Valerie’s home.
After that incident, Valerie obtained a protective order against Malone, which Malone
disregarded. And Malone was released on bond when his violence escalated—he
obtained a new gun illegally and shot Carey and Corey. Malone later explained that he
3
The trial court was careful to identify these as arrests because “there’s [no] kind of disposition
available” in the presentence investigation report. Tr. p. 857. “When evaluating the character of an
offender, a trial court may consider the offender’s arrest record in addition to actual convictions.”
Johnson v. State, 837 N.E.2d 209, 218 (Ind. Ct. App. 2005), trans. denied.
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got the gun to protect himself because he was a marijuana dealer who made $14,000 a
month. Since he has been incarcerated, Malone has been written up for intimidation and
other violations. Tr. p. 818. Although Malone argues that he is still young and can be
rehabilitated, he acknowledged that he received second chances in the past, id. at 799,
and he has since demonstrated that he has no regard for the rule of law. His character
does not warrant reducing his sentence.
After due consideration, we cannot say that Malone’s sentence is inappropriate in
light of the nature of the offenses and his character.
Affirmed.
BAKER J., and FRIEDLANDER, J., concur.
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