MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 30 2017, 9:46 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Appellate Division
Ian McLean
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles A. Allen, October 30, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1609-CR-2241
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable William J. Nelson,
Appellee-Plaintiff. Judge
The Honorable Richard E.
Hagenmaier, Commissioner
Trial Court Cause No.
49F18-1309-FD-60983
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 1 of 12
[1] Following a jury trial, at which Charles Allen represented himself, Allen was
convicted of class D felony battery and class A misdemeanor resisting law
enforcement. He was also adjudicated a habitual offender. On appeal, Allen
argues that he was entitled to discharge pursuant to Ind. Criminal Rule 4(C).
Allen also claims that fundamental error occurred below because he was not
provided with standby counsel at trial and because the trial court quashed his
subpoenas for officer conduct reports.
[2] We affirm.
Facts & Procedural History
[3] At about 2:45 in the morning on September 14, 2013, Officer Timothy Elliot of
the Indianapolis Metropolitan Police Department (IMPD) was working security
for two bars in downtown Indianapolis. He was standing outside the
establishments in full police uniform when citizens alerted him to a fight
between two men on the other side of the street.
[4] Officer Elliot ran to break up the fight, shouting that he was a police officer.
The men, later identified as Aloric Carson and Justin Melton, continued
fighting and eventually Carson was on top of Melton punching him as Melton
appeared to be unconscious on the ground. Officer Elliot crouched down and
attempted to pull Carson off of Melton. At that point, another man came
forward and punched Officer Elliot in the chest, knocking the officer backward
and causing him to lose his grip on Carson. That man then helped Carson up
and the two ran from the scene south down Meridian Street. Officer Elliot gave
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 2 of 12
chase and shouted for them to stop. He then deployed his taser, but only one
probe hit Carson. The men then split up, with Carson heading east and the
other man turning west. Officer Elliot pursued Carson and caught up to and
arrested him.
[5] About ten or fifteen minutes after the fight, two witnesses – both security guards
at the bars – noticed Allen walking with another man on the west side of
Meridian Street and heading northbound away from the scene. Recognizing
Allen as the man who had struck Officer Elliot, the witnesses alerted Officer
Kimberly Evans. Officer Evans then quickly stopped and detained Allen.
Thereafter, Officer Elliot returned to the area with Carson and identified Allen
as his attacker. Officer Christopher Faulds, who had seen Officer Elliot get
punched and also chased the two men, likewise positively identified Allen.
[6] Despite being arrested and charged with class D felony battery and class A
misdemeanor resisting law enforcement on September 14, 2013, Allen’s jury
trial did not take place until August 25, 2016. During this nearly three-year
period, Allen caused or agreed to a number of continuances. Additionally,
Allen was initially represented by a public defender and then fired his public
defender in January 2015, after which he filed an unsuccessful disciplinary
complaint against counsel. A month later, the trial court reappointed defense
counsel. At a hearing on August 26, 2015, a day before the scheduled jury trial,
defense counsel noted his increasing difficulties with Allen. After warning of
the dangers of self-representation, the trial court granted Allen’s request to
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 3 of 12
proceed pro se and reset the trial for October 22, 2015.1 The trial was later
rescheduled on the State’s motion to November 19, 2015.
[7] On November 9, 2015, Allen failed to appear for a pretrial hearing, resulting in
the trial court vacating the upcoming trial. Upon Allen’s request, the trial was
postponed until February 18, 2016. Allen again failed to appear for a pretrial
hearing on February 16, and the trial was reset for April 28, 2016. At a pretrial
hearing on April 25, Judge William Nelson observed that he had been added as
a defendant in a federal lawsuit filed by Allen.2 The judge recused, vacated the
trial date, and began the process for appointment of a special judge. The
Indiana Supreme Court, however, remanded the case to the trial court on June
3, 2016, with instructions for the judge to determine if there was a showing of
bias or prejudice on the judge’s part, in addition to the lawsuit filed, warranting
recusal.
[8] After the remand order, the trial court held a hearing on June 14, 2016, at
which Allen’s jury trial was scheduled for August 25, 2016. In the interim,
several hearings were held and Allen filed a number of motions, discovery
requests, and subpoenas. Allen represented himself at trial, and the basis of his
defense was that he had been misidentified. The jury found him guilty as
1
Also in August 2015, the trial court granted the State’s request to amend the charges and file an information
for the habitual offender enhancement.
2
Allen filed his pro se federal lawsuit in the Southern District of Indiana on September 8, 2015, against
Officer Elliot, several other IMPD officers, other members of law enforcement, and the two bars at which
Officer Elliot was working on the morning in question. On April 4, 2016, he filed a pleading to add
numerous judicial officers of the Marion County Superior Courts as defendants in his federal suit.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 4 of 12
charged and also found him to be a habitual offender. Thereafter, Allen was
sentenced to a total of six years in prison. He now appeals. Additional facts
will be provided below as needed.
Discussion & Decision
Criminal Rule 4(C)
[9] Allen argues that he was entitled to discharge under Crim. R. 4 (C) – the “one-
year rule.” This rule provides in relevant part:
No person shall be held on recognizance or otherwise to answer
a criminal charge for a period in aggregate embracing more than
one year from the date the criminal charge against such
defendant is filed or from the date of his arrest on such charge,
whichever is later; except where a continuance was had on his
motion, or the delay was caused by his act, or where there was
not sufficient time to try him during such period because of
congestion of the court calendar …. Any defendant so held shall,
on motion, be discharged.
Thus, the State must bring a defendant to trial within one year, excluding any
days attributable to the defendant or court congestion. Griffith v. State, 59
N.E.3d 947, 954 (Ind. 2016). “When a defendant seeks or acquiesces in a
delay, the time limitations set by Criminal Rule 4 are extended by the length of
the delay.” State v. Isaacs, 757 N.E.2d 166, 168 (Ind. Ct. App. 2001), trans.
denied.
[10] We employ a dual standard of review on appeal from Crim. R. 4 rulings.
When the issue involves the application of law to undisputed facts, our review
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 5 of 12
is de novo. Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013). A clearly
erroneous standard applies, however, where the trial court’s ruling was based
on its resolution of disputed facts. Id. at 1040. Under this standard, we will
neither reweigh the evidence nor determine the credibility of witnesses. Id. We
will reverse only upon a showing of clear error, which leaves us with a definite
and firm conviction that a mistake has been made. Id.
[11] On appeal, Allen acknowledges that 637 days of delay are attributable to him or
court congestion.3 Thus, according to Allen’s calculations, he was tried on the
439th day (1076 minus 637), which was 74 days too late. Allen disputes several
additional blocks of time that the State alleges are attributable to him. We need
address only two in order to conclude that Allen was tried within the Crim. R.
4(C) deadline. Both of these occurred early in the case when Allen was
represented by counsel.
[12] The first period in dispute is between November 13, 2013 and January 15, 2014,
amounting to a delay of 63 days. Allen failed to appear for a pretrial hearing on
November 6, 2013, and the trial court issued a bench warrant for Allen’s arrest.
Allen surrendered on November 12, 2013. As a result of Allen’s failure to
appear, the trial court reset the pretrial hearing for January 15, 2014. Relying
exclusively on State v. Isaacs, 757 N.E.2d 166, Allen argues that his failure to
3
These delays are from September 18, 2013 to November 12, 2013 (55 days), March 5, 2014 to July 2, 2014
(119 days), September 3, 2014 to November 5, 2014 (63 days), February 24, 2015 to October 22, 2015 (240
days), and November 19, 2015 to April 28, 2016 (161 days). These delays actually total 638 days.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 6 of 12
appear constituted a delay of only six days and that he cannot be charged with
the delay between November 12 (the day he surrendered) and January 15 (the
date of the rescheduled pretrial hearing). We cannot agree.
[13] Isaacs does not hold, as contended by Allen, that a defendant’s failure to appear
causes delay only for the length of his absence. In that case, Isaacs was charged
with resisting law enforcement on May 19, 1999, and his trial was scheduled for
July 16, 1999. He failed to appear for trial. When he appeared ten days later,
the trial court set a pretrial hearing for August 6, 1999. The record was unclear
regarding what occurred at the August hearing, and a trial date was not set until
after the State filed a motion on October 15, 1999, asking the court to set a trial
date. After additional delays not caused by Isaacs, he filed a motion for
discharge on June 30, 2000, which was granted.
[14] In affirming the discharge, we observed that Isaacs’s failure to appear only
caused a short delay. We noted that it was a matter of days before Isaacs
appeared in court following his failure to appear and that the record did not
reflect any details regarding the pretrial hearing on August 6, 1999. Because the
record was silent concerning the reason for any delay after August 6, 1999, we
held that “delay subsequent to that date should not be attributed to Isaacs.” Id.
at 169. In other words, the delay caused by Isaacs lasted only from July 16 to
August 6, 1999.
[15] Similarly, in the case at hand, Allen’s failure to appear in November 2013
caused a delay up to the rescheduled pretrial hearing on January 15, 2014.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 7 of 12
These 63 additional days of delay attributable to Allen bring us to just eleven
days outside of the Crim. R. 4(C) deadline.
[16] The second disputed period is a delay of 48 days between January 16, 2014 and
March 5, 2014. Allen contends that the record is silent concerning the reason
for delay following the January 15, 2014 hearing. It is not. The trial court’s
minute sheet from this hearing indicates that the parties agreed to a continuance
off the record. Further, the transcript from this very brief hearing reveals that
the continuance was granted off the record prior to the hearing. 4
[17] Allen complains that his attorney did not sign the minute sheet, which bears a
stamp noting the agreed-upon continuance with signature lines and only the
prosecutor’s signature. Allen also notes that the CCS does not make mention
of the continuance. These arguments amount to a request to reweigh the
evidence, which we cannot do.
[18] There is evidence in the record to support the trial court’s determination that
Allen, by counsel, agreed to the continuance off the record. With this period of
delay attributed to Allen, the trial court correctly determined that Allen was
tried within the Crim. R. 4(C) deadline. Thus, the trial court properly denied
Allen’s various motions for discharge.
4
The transcript of this hearing is two pages long and is comprised of a discussion between the trial court and
Allen, during which Allen acknowledged that his attorney “just told me that my court date was continued.”
Supp. Transcript Vol. II (filed March 21, 2017) at 21.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 8 of 12
Standby Counsel
[19] Allen argues that the trial court erred in not providing him with standby counsel
at trial. Acknowledging that he did not preserve the issue below, he claims the
error was fundamental. The fundamental error doctrine is extremely narrow
and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error
denies the defendant fundamental due process. Brown v. State, 929 N.E.2d 204,
207 (Ind. 2010). This exception to the waiver rule is available only in egregious
circumstances. Id.
[20] Allen began representing himself on August 26, 2015, because he disagreed
with decisions made by his appointed attorney. He represented himself in
about a dozen hearings, before various judicial officers, prior to his jury trial a
year later. During one such hearing on June 14, 2016, Allen indicated that he
would like the assistance of standby counsel at trial. Judge Nelson granted the
request for standby counsel, but then Allen raised questions about having co-
counsel rather than standby counsel. Judge Nelson indicated that an attorney
acting as co-counsel was not an option. Allen was informed that only three
options existed: pro se, represented by counsel, or pro se with standby counsel.
Allen responded, “I’m not sure about this right now.” Supp. Transcript Vol. II
(filed June 16, 2017) at 101. Judge Nelson then set a trial date and advised Allen
that he needed to make up his mind quickly regarding whether he wanted a
public defender to represent him at trial.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 9 of 12
[21] At the following hearing on June 27, 2016, Judge Nelson indicated that Allen
had still not signed the waiver of counsel and declaration of desire to proceed
pro se. Allen then indicated that he had spoken with “Mr. Ford from the PD’s
office” and had decided that he wanted to have standby counsel. Transcript Vol.
II at 117. Later in the hearing, the following discussion occurred:
[Court]: And I wish Mr. Ford hadn’t left, because I think I’m
going to appoint him as standby counsel.
[Defendant]: Excuse me?
(Whereupon, Court Staff confers with the Court.)
[Court]: The State is under the impression that you did not
want standby counsel? Mr. Ford relayed to the Court staff that
you did not want standby counsel. Did he misunderstand you?
[Defendant]: I don’t think he misunderstood me. He know [sic] I
wanted standby counsel.
[Court]: He did? Well, evidently he did misunderstand you
because he told the Court staff you stated you did not.
[Defendant]: That’s not true.
[Court]: Okay. So you want standby counsel? Yes?
[Defendant]: Yes.
Id. at 120-21.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 10 of 12
[22] Although there were three subsequent pretrial hearings, the issue of standby
counsel did not come up again. In fact, at the final pretrial hearing before
Commissioner Richard Hagenmaier, Allen was generally advised of how the
upcoming trial would proceed. After indicating that Allen was not required to
present evidence at trial, Commissioner Hagenmaier stated, “I just want to
make sure you [understand] because you’re representing yourself and there is
no attorney here to help you. Okay? There’s not going to be any attorney here
during trial. You understand that? All right.” Transcript Vol. II at 156 (emphasis
supplied). At no point during this hearing did Allen reassert his desire for
standby counsel. At his jury trial two days later, over which Commissioner
Hagenmaier presided, Allen similarly did not mention the lack of standby
counsel.
[23] Appointment of standby counsel is discretionary, and a defendant who
proceeds pro se has no right to demand the appointment of standby counsel for
his assistance. Sherwood v. State, 717 N.E.2d 131, 135 n. 2 (Ind. 1999). Here, it
is not even clear that Allen still desired the assistance of standby counsel when
the trial occurred. Under the circumstances, the trial court was entitled to
accept Allen’s apparent readiness on the day of trial and did not have an
obligation to sua sponte ensure that Allen did not want standby counsel. Allen
has failed to establish fundamental error in this regard.
Subpoenas
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 11 of 12
[24] Allen filed a number of subpoenas below, many of which were granted by the
trial court. He challenges the denial of two handwritten subpoenas, which are
not file stamped in the record before us. These were directed to “IMPD
Internal Affairs” and “IMPD Citizens Complaint Office” and sought,
respectively, all conduct reports for Officer Elliot and all citizen complaints
regarding Officer Elliot. Appellant’s Appendix Vol. III at 31, 33. The trial court
denied these subpoenas as “already quashed” on April 6, 2016. Id. Allen did
not challenge this action below. Now, on appeal, Allen contends that the trial
court committed fundamental error by quashing the subpoenas. We summarily
conclude that Allen has failed to establish fundamental error.
[25] Judgment affirmed.
Baker, J. and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2241 | October 30, 2017 Page 12 of 12