MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 01 2020, 8:29 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph C. Gonzalez, Jr., October 1, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2295
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Barbara Crawford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1811-MR-40617
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 1 of 11
Statement of the Case
[1] Joseph C. Gonzalez, Jr. appeals his conviction and sentence following a jury
trial for murder, a felony, and his adjudication as a habitual offender. Gonzalez
raises two issues for our review, which we revise and restate as follows:
1. Whether the trial court erred when it granted the State’s
motion to continue Gonzalez’s trial outside of the
timeframe required by Gonzalez’s speedy-trial request.
2. Whether the trial court improperly participated in plea
negotiations such that Gonzalez’s sentence should be
reduced.
[2] We affirm.
Facts and Procedural History
[3] In late 2018, Gonzalez lived in a “rooming house” in Indianapolis. Tr. Vol. 2
at 223. At that time, Gonzalez was in a relationship with Sarah Brianne Serna,
and Serna would stay with Gonzalez “from time to time.” Tr. Vol. 3 at 19.
Gonzalez and Serna “seemed to fight a lot,” and their relationship was “not
good.” Tr. Vol. 2 at 217.
[4] In the late hours of November 16 and into the early hours of November 17,
Gonzalez’s neighbor, Steven Andrews, heard Gonzalez and Serna argue.
Andrews then heard Serna “scream” for a “long time,” and he “heard a clunk.”
Id. at 225, 246. Andrews did not hear anything further, so he exited his room.
He then saw Gonzalez “[p]acing back and forth” in the hallway, and he noticed
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 2 of 11
that the door to Gonzalez’s room was closed. Id. at 225. Andrews then asked
Gonzalez if Serna was alright. Gonzalez responded: “no.” Id. Gonzalez then
left the rooming house, and Andrews called 9-1-1.
[5] Officers with the Indianapolis Metropolitan Police Department responded to
the scene. When they arrived at Gonzalez’s room, officers saw Serna’s
deceased body on the sofa. There were “defects” on Serna’s head, and there
was blood on the walls. Tr. Vol. 3 at 128. Officers also found a sledgehammer
on the floor that had Serna’s blood on it. The coroner determined that Serna
had died from blunt force trauma to the head. When officers located Gonzalez
later that morning, he was wearing a shirt that had Serna’s blood on it.
[6] On November 20, the State charged Gonzalez with murder, a felony. On April
18, 2019, Gonzalez, while represented by counsel, requested a speedy trial
pursuant to Indiana Criminal Rule 4(B). The trial court granted Gonzalez’s
request and scheduled his trial for June 24.
[7] The State submitted various items to a DNA analyst for testing. On June 12,
the State received the initial results of the DNA testing. The results indicated
the possible presence of male DNA, so the State asked the laboratory to
perform additional testing.
[8] On June 14, Gonzalez filed a motion to continue. At a hearing on his motion
on June 17, Gonzalez requested to proceed pro se. Also at that hearing, the
State informed the court that it believed that the results of the additional DNA
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 3 of 11
testing would be available before the trial date. The court granted Gonzalez’s
motion to proceed pro se but ordered that the trial remain set for June 24.
[9] On June 18, the State filed a motion to continue Gonzalez’s trial pursuant to
Indiana Criminal Rule 4(D). In that motion, the State asserted that, after the
hearing on June 17, the DNA analyst had informed the State that the additional
DNA testing would not be completed prior to the June 24 trial date. The State
further asserted that the DNA analyst had indicated that the testing would be
completed within thirty days.
[10] The trial court held a hearing on the State’s motion on June 20. At the hearing,
the State reiterated to the court that it had initially believed that the additional
DNA testing would be completed prior to trial but that it had recently learned
that the results would not be available by that date. The State also asserted that
the DNA evidence was “necessary” for its case and that it had made a
“reasonable attempt” to get the evidence in time. Tr. Supp. at 7. The trial
court granted the State’s motion and rescheduled Gonzalez’s jury trial to July
29. The State ultimately received the DNA results after that hearing.
[11] On June 28, Gonzalez, pro se, filed a motion for discharge. In that motion,
Gonzalez asserted that more than seventy calendar days had passed without a
trial in violation of Indiana Criminal Rule 4(B) and that he had not caused any
delay. Accordingly, he asserted that he was entitled to a dismissal of the charge
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 4 of 11
against him. The trial court denied Gonzalez’s motion. 1 Thereafter, the State
alleged that Gonzalez was a habitual offender.
[12] At the final pretrial conference on July 22, the following colloquy occurred:
THE COURT: All right. [State], did you—I forgot to ask this.
Did you ever make an offer to Mr. Gonzalez in this case?
[STATE]: Judge, I don’t know if we actually made an offer.
THE COURT: Okay.
[STATE]: Any offer that I would make would be to the murder.
I would offer 50 years in the Department of Correction[] with six
years on the habitual at this point. So a total of 56 years.
THE COURT: All right. So Mr. Gonzalez, you understand that
offer?
MR. GONZALEZ: I understand the offer and I told her once
before I don’t—
THE COURT: You reject it—
MR GONZALEZ: —I don’t want to engage in—I don’t want to
engage in any—
1
Gonzalez filed numerous motions for discharge pursuant to Criminal Rule 4 and motions to dismiss for
“state misconduct” based on the State’s failure to bring him to trial within seventy days. See, e.g., Appellant’s
App. Vol. 2 at 117 (emphasis removed). The trial court denied each of those motions.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 5 of 11
THE COURT: You reject it?
MR. GONZALEZ: Yeah.
THE COURT: Okay. That’s all I need to know.
Tr. Vol. 2 at 67-68.
[13] The court held a bifurcated trial beginning on July 29. Following the first phase
of the trial, the jury found Gonzalez guilty of murder. Prior to the second
phase of the trial, the following conversation occurred between the court and
the parties:
THE COURT: And you were going to say something to Mr.
Gonzalez?
[STATE]: Yes.
THE COURT: You may.
[STATE]: We would—the State would not be opposed if the
Defendant wished to exercise his right to waive the jury trial
portion and have Your Honor hear the case for the habitual
phase. The Defendant also—we would make a plea offer to the
Defendant on the habitual if he wanted to admit to the two
priors. I believe the range is 6 to 20. We would be willing to
offer 15 years on that portion. Then obviously sentencing for the
jury conviction would be at a later date. Or the Defendant could
always plead open to the habitual as well.
MR. GONZALEZ: I do not.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 6 of 11
THE COURT: Okay. So you want to go forward with this
portion of the jury trial?
MR. GONZALEZ: I don’t believe you need to read this to the
jury.
THE COURT: No, . . . this has to be read to the jury.
MR. GONZALEZ: Say that again?
THE COURT: If you want to go forward on this part.
MR. GONZALEZ: Yeah.
Tr. Vol. 4 at 142-43.
[14] Following the second phase of the trial, the jury found that Gonzalez was a
habitual offender. The court entered judgment of conviction accordingly and
sentenced Gonzalez to an aggregate sentence of eighty years in the Department
of Correction. This appeal ensued.
Discussion and Decision
Issue One: Motion to Continue
[15] Gonzalez first asserts that the trial court erred when it granted the State’s
motion to continue his trial date outside of the timeframe required by his
speedy-trial request. The right of an accused to a speedy trial is guaranteed by
the United States and Indiana Constitutions. U.S. Const. amend. VI; Ind.
Const. art. 1, § 12. Indiana Criminal Rule 4 implements those rights and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 7 of 11
generally requires a criminal defendant to be brought to trial within seventy
days of his speedy-trial request. Ind. Criminal Rule 4(B)(1).
[16] However, among other reasons for extension of that time frame, Indiana
Criminal 4(D) provides as follows:
If when application is made for discharge of a defendant under
this rule, the court be satisfied that there is evidence for the state,
which cannot then be had, that reasonable effort has been made
to procure the same and there is just ground to believe that such
evidence can be had within ninety (90) days, the cause may be
continued[.]
[17] As this Court has explained:
Thus, in order to grant a continuance as provided in Rule 4(D),
the trial court must be satisfied that the State made a reasonable
effort to procure the evidence. Whether the requested delay is
reasonable should be judged according to the circumstances of
the particular case. In addition, we evaluate the reasonableness
of the State’s request for a trial delay in light of the information
known or available to it at the time of the request. As a general
rule, a trial court’s decision to grant a Rule 4(D) continuance is
reviewed for an abuse of discretion.
Dilley v. State, 134 N.E.3d 1046, 1049-50 (Ind. Ct. App. 2019) (citations
omitted).
[18] Here, the State filed a motion to continue Gonzalez’s trial pursuant to Criminal
Rule 4(D) based on the unavailability of DNA test results. On appeal,
Gonzalez asserts that the court abused its discretion when it granted that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 8 of 11
motion because the State made no “reasonable effort” to procure the DNA
evidence. Appellant’s Br. at 19. We cannot agree.
[19] Here, the State submitted several items to the laboratory to be tested for DNA,
and the State received the initial results on June 12. Based on the initial results,
which indicated the presence of male DNA, the State requested additional
testing. As of a hearing on June 17, the State believed that the additional test
results would be available before Gonzalez’s June 24 trial date. However,
following that hearing, the DNA analyst informed the State that the testing
would not be done by the trial date but that the results would be available in
thirty days. At that point, the State promptly filed its motion to continue and
asked that the DNA testing be expedited.
[20] Contrary to Gonzalez’s assertion, the fact that the State ultimately received the
test results prior to the initial trial date does not demonstrate that the State
failed to take reasonable steps to procure that evidence. Rather, as discussed
above, the State submitted the items for DNA testing in time to receive the
initial results well before Gonzalez’s trial date. Then, when the State asked for
additional testing, it did so with the understanding that the additional test
results would also be available prior to trial. The State only filed its motion to
dismiss after it had learned that the results would not be ready in time. And the
State filed its motion based on the information known or available to it at that
time. See Dilley, 134 N.E.3d at 1050. It was not until after the hearing on the
State’s motion that the State received the results.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 9 of 11
[21] We hold that, under the facts of this case, the State made a reasonable effort to
obtain the additional DNA results in time for Gonzalez’s initial trial date. The
trial court did not abuse its discretion when it granted the State’s motion to
continue.
Issue Two: Gonzalez’s Sentence
[22] Gonzalez next contends that the trial court improperly inquired into the
“specifics” of the plea negotiations between Gonzalez and the State.
Appellant’s Br. at 25. He also asserts that, because the offers were solicited by
and communicated in front of the court, the court “was aware of what the State
would settle for” and “suggested that he would receive something more if he
went to trial.” Id. And he maintains that, as a result, he received a sentence
that “was significantly in excess of what was offered.” Id. Accordingly,
Gonzalez asks us to reduce his sentence.
[23] We first note that, to the extent we can discern Gonzalez’s argument on this
issue, he has not supported it with cogent reasoning. In addition, Gonzalez has
not cited any case law or other legal authority to support his contention that,
even if the court improperly participated in plea negotiations, the appropriate
remedy would be a reduced sentence. As such, Gonzalez has waived this issue
for our review. See Ind. Appellate Rule 46(A)(8)(a).
[24] In any event, the record does not support Gonzalez’s claim that the trial judge
improperly solicited a plea offer or participated in plea negotiations. On the
contrary, the record demonstrates that, at a pretrial hearing, the court simply
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 10 of 11
asked the State if it had made an offer to Gonzalez. See Tr. Vol. 2 at 67. The
State responded with the specific terms of a plea offer, which Gonzalez rejected.
Similarly, following the first phase of the trial, the court asked the State if it had
“something to say” to Gonzalez. Tr. Vol. 4 at 142. Again, the State responded
by offering Gonzalez a plea deal for the habitual offender enhancement, which
Gonzalez rejected. At no point during either of those conversations did the
court solicit the details of the offers, attempt to convince Gonzalez to accept the
offers, or imply that Gonzalez would receive a harsher sentence if he declined
the offers. As the trial court did not improperly interfere with the plea
discussions, Gonzalez’s argument on this issue must fail. 2
[25] In sum, we affirm Gonzalez’s convictions and sentence.
[26] Affirmed.
Bradford, C.J., and Mathias, J., concur.
2
Gonzalez makes no argument that the trial court abused its discretion when it sentenced him or that his
sentence is inappropriate in light of the nature of the offense or his character.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2295 | October 1, 2020 Page 11 of 11