Williams v. State

971 N.E.2d 213

Savane E. WILLIAMS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A04–1106–CR–428.

Court of Appeals of Indiana.

July 23, 2012.

Appeal from the Elkhart Circuit Court; The Honorable Gene R. Duffin, Judge; Cause No. 20C01–9808–CF–40.

Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION–NOT FOR PUBLICATION

MATHIAS, Judge.

Following a jury trial in 2000, Savane E. Williams (“Williams”) was convicted in Elkhart Circuit Court of two counts of Class A felony dealing in cocaine. In this belated appeal, Williams presents six issues for our review, which we restate as:

I. Whether the trial court erred in denying Williams's motion for a change of judge;

II. Whether the trial court's admission of evidence regarding a confidential informant's conduct constituted impermissible hearsay and violated Williams's right to confront witnesses;

III. Whether the State presented sufficient evidence to support Williams's convictions;

IV. Whether Indiana Code section 35–48–4–16 should be retroactively applied to Williams's convictions, thereby reducing his convictions from Class A to a Class B felonies;

V. Whether Williams's habitual offender enhancement constituted an improper double enhancement; and

VI. Whether the trial court erred in sentencing Williams to an aggregate term of eighty years incarceration.

The State concedes that the trial court improperly ordered that Williams serve a separate, consecutive sentence as a result of his habitual offender adjudication. We agree with the State that the trial court erred in the manner in which it imposed the habitual offender enhancement, but we otherwise affirm Williams's convictions and sentence.

Facts and Procedural History

In the summer of 1998, Detective Mark Dagy (“Detective Dagy”) of the Elkhart Drug Task Force received information that Williams was selling cocaine. Dagy decided to use the services of a confidential informant, Chris Thomas (“Thomas”), in his investigation of Williams's suspected drug dealing. Thomas and Williams had been friends since childhood, and Thomas was a reliable, experienced confidential informant.¹

On July 17, 1998, Detective Dagy met Thomas in a motel room where Thomas was living. This motel room is 700 feet from Hayden Park in Elkhart, Indiana. Dagy instructed Thomas to contact Williams and set up a meeting where Thomas could purchase cocaine from Williams. Shortly before the controlled buy, Detective Dagy searched Thomas's motel room, searched Thomas, placed a microphone on Thomas, and gave him $60 in cash that had been photocopied. Detective Dagy then left the motel room and met with another officer to observe the scheduled buy. Other officers were also nearby listening to the audio transmissions coming from the microphone Detective Dagy had placed on Thomas.

Shortly thereafter, Williams drove into the motel parking lot in a large, green car and parked in front of Thomas's motel room. Also inside the car was Williams's adult niece, Ella Davis. Thomas came out of his motel room, approached the driver's side window of Williams's car, and gave Williams $40 in cash. Williams reached into the waistband of his pants, removed a small bag, took two rocks of crack cocaine out of the bag, and handed them to Thomas. ² After speaking with Williams briefly, Thomas stepped away from the car. Williams then drove away from the motel. Minutes later, Thomas approached Detective Dagy's vehicle and handed him the two rocks of cocaine he had purchased from Williams and the remaining $20 in cash. Detective Dagy again searched Thomas and his motel room and found nothing.

Detective Dagy later contacted Thomas and set up another controlled buy to take place on July 23, 1998. Detective Dagy photocopied another $60 in cash, then met Thomas at a nearby restaurant parking lot, searched Thomas, placed a microphone on him, and gave him the photocopied cash. Thomas then walked across the street to the motel parking lot, while Detective Dagy went to a parking lot west of Thomas's motel room. This time, however, another detective was in a car approximately twenty feet away from Thomas's motel room and videotaped the transaction.

Williams arrived in his large, green car shortly before 7:00 p.m. This time, he was accompanied by his friend Jeffrey Fletcher (“Fletcher”), who knew that he and Williams were going to the motel to sell cocaine to Thomas, an acquaintance of Fletcher's. Williams again parked his car in front of Thomas's motel room, and Thomas again approached the driver's side of the car. Thomas handed Williams the buy money, and Williams reached into his pants and removed several rocks of crack cocaine. This time, Williams gave Thomas three rocks of cocaine. After speaking with Thomas, Williams got out of his car and spoke to others nearby. Afterward, Thomas met with Detective Dagy and handed him the cocaine. Dagy then searched Thomas and found no other contraband or money.

As a result of these controlled buys, the State charged Williams with two counts of Class A felony dealing in cocaine within 1,000 feet of a park. The State also alleged that Williams was a habitual offender based on his 1988 conviction for Class D felony criminal recklessness and his 1993 conviction for Class D felony possession of a handgun by a felon.

On February 10, 2000, Williams filed a motion for change of judge, claiming that the trial court judge was biased against him and had previously recused himself in other cases involving Williams. After a pre-trial conference held on February 15, 2000, the trial court denied Williams's motion for change of judge. Sometime before Williams's February 2000 trial, Thomas died. Williams then filed a motion in limine seeking to exclude evidence the State learned from Thomas. The trial court granted this motion “as to hearsay from [Thomas].” Appellant's App. p. 49.

Williams's jury trial was held on February 22 to February 24, 2000. Williams testified on his own behalf and claimed that he only came to the motel to “hang out” with Thomas. Tr. pp. 319, 327. Ultimately, the jury found Williams guilty as charged and also determined that he was a habitual offender. The trial court sentenced Williams to concurrent terms of fifty years on each Class A felony conviction and imposed a consecutive thirty-year sentence as a result of the habitual offender adjudication.

Williams did not file a notice of appeal within thirty days of the trial court's sentencing order. Instead, he filed a petition for permission to file a belated notice of appeal on February 22, 2001, almost a year after his sentencing. The trial court denied this petition without a hearing the same day it was filed. Over a year later, on September 15, 2002, Williams filed another petition for permission to file a belated notice of appeal. For reasons not apparent on the record, this was not entered on the trial court's docket until June 1, 2007, nearly five years later. The trial court held a hearing on this petition on July 20, 2007, and again denied Williams's petition. Undeterred, Williams filed a third petition for permission to file a belated notice of appeal on June 20, 2011. The trial court held a hearing on this petition on August 4, 2011. This time, the trial court granted Williams's petition, ³ and this appeal ensued.

I. Denial of Motion for Change of Judge

Williams first claims that the trial court erred in denying his motion for change of judge. A trial court's ruling on a motion for change of judge is reviewed under the clearly erroneous standard, and the law presumes that a judge is unbiased and unprejudiced. Garland v. State, 788 N.E.2d 425, 433 (Ind.2003).

Indiana Criminal Rule 12 provides in relevant part:

(D) Time Period for Filing Request for Change of Judge or Change of Venue. In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.

(1) Ten Day Rule. An application for a change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial. Provided, that where a cause is remanded for a new trial by the Supreme Court or Court of Appeals, such application must be filed not later than ten (10) days after the party has knowledge that the cause is ready to be set for trial.

(2) Subsequently Discovered Grounds. If the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, the applicant may file the application, which shall be verified by the party specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion.

The law is settled that a defendant is not entitled to a change of judge where the mandates of Criminal Rule 12 have not been followed. Flowers v. State, 738 N.E.2d 1051, 1059 (Ind.2000).

Here, Williams entered a plea of not guilty on August 29, 1998. He did not file his motion for change of judge until February 10, 2000, shortly before his trial and seventeen months after his plea. Clearly, Williams's change of judge motion was untimely. And Williams can find no support for his claim in Criminal Rule 12(D)(2) because he makes no claim that he learned of the basis of his change of judge motion after the expiration of the ten-day ...