Kinnaman v. State

141 N.E.3d 397 (Table)

Paul J. KINNAMAN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff,

Court of Appeals Case No. 19A-CR-1035

Court of Appeals of Indiana.

FILED February 4, 2020

Attorney for Appellant: Tara L. Cragen, The Nice Law Firm, LLP, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Benjamin J. Shoptaw, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Robb, Judge.

Case Summary and Issues

[1] Following a jury trial in Johnson County, Paul Kinnaman was convicted of attempted murder, a Level 1 felony; pointing a firearm and resisting law enforcement, both Level 6 felonies; unlawful possession of a firearm by a serious violent felon, a Level 4 felony; and was found to be an habitual offender. The trial court sentenced Kinnaman to forty-seven and one-half years in the Indiana Department of Correction ("DOC") for his crimes, enhanced by fifteen years based on Kinnaman's habitual offender status, for a total sentence of sixty-two and one-half years. Kinnaman appeals, raising two issues for our review, which we restate as: 1) whether the trial court erred in denying his Criminal Rule 4(B) petition for discharge, and 2) whether venue was proper in Johnson County. Concluding the trial court did not err in denying Kinnaman's petition for discharge and venue was proper in Johnson County, we affirm.

Facts and Procedural History

[2] On June 27, 2016, Officer Adam Bandy of the Greenwood Police Department was conducting a traffic stop when he noticed Kinnaman driving by him without a seatbelt on. Kinnaman pulled into a cul-de-sac behind Officer Bandy and after Officer Bandy completed his traffic stop, he waited for Kinnaman to pull out of the cul-de-sac. Approximately five minutes later, Kinnaman drove off and Officer Bandy followed behind him for a period of time, observing Kinnaman commit several traffic infractions. Officer Bandy then attempted to initiate a traffic stop on Kinnaman on State Road 135 at Michelle Lane in Johnson County, Indiana. However, Kinnaman fled Officer Bandy and drove through a red light. Moments later, Officer Bandy's pursuit of Kinnaman ended in "a bad crash" on Shelby Street and Stop 11 Road in Marion County, Indiana. Transcript, Volume 2 at 209. When Officer Bandy arrived at the accident, he saw Kinnaman trying to escape through the driver's side window of his car. Officer Bandy used his vehicle to pin the driver's side door of Kinnaman's vehicle to try to prevent him from escaping. Kinnaman then escaped his vehicle through the passenger's side door and began running. While Kinnaman was running away, Officer Bandy observed Kinnaman reach in his waistband and pull out a firearm. Kinnaman then pointed the firearm towards Officer Bandy and pulled the trigger. Although Kinnaman tried to shoot Officer Bandy, the firearm did not fire any bullets because the trigger on Kinnaman's gun was dysfunctional and prevented it from being fired. See Tr., Vol. 3 at 100. Officer Bandy fired his service weapon striking Kinnaman in his waistline. Kinnaman was escorted to the hospital thereafter.

[3] On July 1, 2016, the Johnson County Prosecutor's Office charged Kinnaman with attempted murder, a Level 1 felony; unlawful possession of a firearm by a serious violent felon, a Level 4 felony; resisting law enforcement and pointing a firearm,¹ both Level 6 felonies; and alleged Kinnaman was an habitual offender. After the charges were filed, the following occurred:

• July 1, 2016 – The trial court issued a warrant for Kinnaman's arrest.

• July 12, 2016 – The arrest warrant was served on Kinnaman.

• July 20, 2016 – A video conference was scheduled for Kinnaman's initial hearing, but it was rescheduled to July 27 due to Kinnaman being housed in Marion County Jail; the trial court issued a transport order for the July 27 hearing.

• July 27, 2016 – The trial court was informed that Kinnaman had to appear for court in Marion County on this date; the initial hearing was reset for August 10.

• August 9, 2016 – The trial court rescheduled the August 10 initial hearing for August 17 because Kinnaman needed to be transported from Marion County Jail; the trial court issued a transport order for the August 17 hearing.

• August 15, 2016 – Kinnaman, pro se , filed a motion for early trial under Criminal Rule 4(B).

• August 17, 2016 – Kinnaman's initial hearing was held via video conference. Kinnaman pleaded not guilty and the trial court appointed him a public defender. Kinnaman's trial was set for November 15.

• August 31, 2016 – The trial court granted Kinnaman's public defender's motion to withdraw.

• September 2, 2016 – Kinnaman's trial date of November 15 was cancelled.

• September 14, 2016 – Kinnaman, pro se , appeared for a pre-trial conference and the trial court appointed him a new attorney. The trial court set his early trial date for October 11, 2016.

• September 26, 2016 – Kinnaman filed a petition for discharge pursuant to Criminal Rule 4(B) and a motion to transfer venue to Marion County.

• September 28, 2016 – The trial court held a hearing on Kinnaman's petition for discharge and motion to transfer venue and denied both motions.

[4] On September 29, 2016, Kinnaman filed a motion for continuance to prepare for trial and filed seventeen motions for continuance thereafter. A jury trial commenced on March 19, 2019, and the jury found Kinnaman guilty as charged. Kinnaman waived his right to jury for the habitual offender phase of the trial, and the trial court found Kinnaman to be an habitual offender. The trial court sentenced Kinnaman to an aggregate sentence of sixty-two and one-half years to be served in the DOC. Kinnaman now appeals.

Discussion and Decision

I. Criminal Rule 4(B)

[5] Both the Sixth Amendment to the United States Constitution and Article 1, section 12 of the Indiana Constitution protect the right of an accused to a speedy trial. Cundiff v. State , 967 N.E.2d 1026, 1027 (Ind. 2012). Indiana Criminal Rule 4 implements this constitutional right.² Id. When a defendant moves for speedy trial, he invokes the procedures and deadlines of Criminal Rule 4(B). Jenkins v. State , 809 N.E.2d 361, 366 (Ind. Ct. App. 2004). As relevant to this case, Criminal Rule 4(B) provides:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion , except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Ind. Crim. Rule 4(B)(1) (emphasis added). The overall goal of Criminal Rule 4 "is to provide functionality to a criminal defendant's fundamental and constitutionally protected right to a speedy trial." Austin , 997 N.E.2d at 1037. "It places an affirmative duty on the State to bring the defendant to trial, but at the same time is not intended to be a mechanism for providing defendants a technical means to escape prosecution." Id. "The determination of whether a particular delay in bringing a defendant to trial violates the speedy trial guarantee largely depends on the specific circumstances of the case." Wheeler v. State , 662 N.E.2d 192, 193 (Ind. Ct. App. 1996). When we review Criminal Rule 4 claims, we review questions of law de novo and the trial court's factual findings for clear error. Mefford v. State , 51 N.E.3d 327, 333 (Ind. Ct. App. 2016). "Clear error is that which leaves us with a definite and firm conviction that a mistake has been made." Austin , 997 N.E.2d at 1040 (quotation omitted). In reviewing for clear error, we neither reweigh the evidence nor judge the credibility of the witnesses; instead we consider only the probative evidence and reasonable inferences supporting the judgment. Id. Kinnaman contends that the trial court erred in denying his petition for discharge pursuant to Rule 4(B), claiming that he was not brought to trial within the seventy-day time limit.

[6] It is well established that when a defendant files a petition under Rule 4(B), he is required to maintain a position which is reasonably consistent with his speedy trial request; therefore, he must object at the earliest opportunity to a trial setting that is beyond the seventy-day time period. Hill v. State , 777 N.E.2d 795, 797-98 (Ind. Ct. App. 2002) (opinion on reh'g), cert. denied , 540 U.S. 832 (2003). If an objection is not timely made, the defendant is deemed to have acquiesced to the trial date. Hampton v. State , 754 N.E.2d 1037, 1039 (Ind. Ct. App. 2001), trans. denied .

[7] Kinnaman is not entitled to discharge under Rule 4(B). Kinnaman was arrested on July 12, 2016. On August 15, Kinnaman made his first written demand for a speedy trial by filing a letter with the trial court; therefore, the seventy-day clock would have expired on October 24, 2016. On August 17, Kinnaman had his initial hearing and the trial court, without objection, set Kinnaman's trial date for November 15, 2016. Because Kinnaman did not object when he learned of the November 15 trial date (a date that exceeded the seventy-day time period), he waived his right to a speedy trial. See Goudy v. State , 689 N.E.2d 686, 691 (Ind. 1997) (holding that the defendant waived his right to a speedy trial by failing to object to a pre-trial hearing set beyond the seventy day limit); see also Sumner v. State , 453 N.E.2d 203, 206-07 (Ind. 1983) (holding the defendant acquiesced in the delay when he failed to object to the scheduling of a pre-trial conference for a date after the expiration of the seventy-day period).

[8] Waiver notwithstanding, Kinnaman would still not prevail on his claim that the trial court erred in denying his petition for discharge. Kinnaman's initial counsel withdrew on August 31 and Kinnaman's November 15 trial date was cancelled. The trial court then appointed...