Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1145 | December 28, 2017 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

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

Victoria L. Bailey

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Antuan Harney,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 28, 2017

Court of Appeals Case No.

49A05-1705-CR-1145

Appeal from the Marion Superior 

Court

The Honorable Shatrese M. 

Flowers, Judge

The Honorable James Kevin

Snyder, Commissioner

Trial Court Cause No.

49G20-1509-F2-31979

Crone, Judge.
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Case Summary

[1] Antuan Harney appeals the trial court’s denial of his motion for discharge

pursuant to Indiana Criminal Rule 4(B). On appeal, he argues that the trial 

court abused its discretion in striking his pro se speedy trial motion and 

committed clear error in denying his motion for discharge. Finding no abuse of 

discretion or clear error, we affirm.

Facts and Procedural History

[2] On September 9, 2015, the State charged Harney with level 2 felony dealing in 

a narcotic drug, level 2 felony dealing in cocaine, level 3 felony possession of a 

narcotic drug, level 4 felony possession of cocaine, level 6 felony maintaining a 

common nuisance, and class B misdemeanor possession of marijuana. Harney 

was arrested and taken into custody on September 21, 2015. Harney retained 

attorney Timothy Burns as his trial counsel, and Burns filed his appearance on 

September 23, 2015. At the initial hearing held that same date, the trial court 

set a trial date of February 9, 2016.

[3] Burns filed a motion to withdraw his appearance on November 24, 2015, 

stating that Harney “was incarcerated and unable to pay an attorney fee” and

was “in need of a public defender.” Appellant’s App. Vol. 2 at 40. The trial 

court set a hearing on counsel’s motion to withdraw for December 7, 2015. 

Meanwhile, on December 3, 2015, Harney filed a pro se letter with the trial 

court in which he requested a “fast and speedy trial under rule 4(B).” Id. at 44. 

On December 4, the trial court entered an order striking Harney’s pro se 
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“Motion for Fast and Speedy Trial,” noting that Harney was represented by 

counsel and that the court “does not recognize motions made by non-attorney 

of record.” Id. at 45. At the hearing on Burns’s motion to withdraw on 

December 7, Harney appeared and informed the trial court that he needed the 

services of a public defender. The trial court appointed public defender Kyle 

Cassidy to represent Harney, and Cassidy filed his appearance on that date.

[4] On February 3, 2016, the trial court held a final pretrial conference. During 

that hearing, the State moved to continue the trial date. Over Harney’s 

objection, the trial court granted the motion for continuance and reset the trial 

date for April 5, 2016. In March 2016, a third attorney, Dana Childress-Jones, 

filed an appearance on Harney’s behalf. Then, on March 23, Harney filed a 

motion for discharge pursuant to Indiana Criminal Rule 4(B). Following a 

hearing, the trial court denied the motion. Harney filed a motion for 

certification of interlocutory appeal and an emergency motion for immediate 

release pursuant to Indiana Criminal Rule 4(A).1 The trial court granted 

Harney’s Criminal Rule 4(A) motion, and he was released from custody on 

March 31, 2016. The trial court denied the motion for certification of 

interlocutory appeal on the Criminal Rule 4(B) motion for discharge as moot.

 

1 The trial court concluded that Harney had been in continuous custody from the date of his arrest on 

September 21, 2015, through March 31, 2016, in violation of Criminal Rule 4(A) which provides in relevant 

part that “[n]o defendant shall be detained in jail on a charge, without a trial, for a period in aggregate 

embracing more than six (6) months from the date the criminal charge against such defendant is filed, or 

from the date of his arrest on such charge (whichever is later) ....”
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[5] Harney’s level 6 felony charge was later dismissed, and a jury trial was held on 

March 2, 2017. The jury found Harney guilty of level 2 felony dealing in a 

narcotic drug, level 3 felony possession of cocaine, level 4 felony possession of 

cocaine, and class B misdemeanor possession of marijuana. The trial court 

sentenced Harney to an aggregate term of twelve years, with three years to be 

served in the Department of Correction, five years to be served in community 

corrections, and four years suspended.

Discussion and Decision

[6] This appeal involves motions filed by Harney pursuant to Indiana Criminal 

Rule 4(B). Our supreme court has explained,

The broad goal of Indiana’s Criminal Rule 4 is to provide 

functionality to a criminal defendant’s fundamental and 

constitutionally protected right to a speedy trial. 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.

Subsection B of Criminal Rule 4 provides that “[i]f 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.” Ind. 

Crim. Rule 4(B)(1). Exceptions to this requirement include where 

the defendant seeks a continuance or the delay is otherwise the 

result of the defendant’s conduct, “or where there was not 

sufficient time to try him during such seventy (70) calendar days 

because of the congestion of the court calendar.” Crim. R. 

4(B)(1). 

Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013) (some citations omitted).
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Section 1 – The trial court did not abuse its discretion in 

striking Harney’s pro se speedy trial motion.

[7] We first address the trial court’s decision to strike Harney’s pro se speedy trial 

motion. The trial court struck Harney’s pro se motion because he was 

represented by counsel at all relevant times. Harney asserts that the trial court 

abused its discretion in doing so. We disagree.

[8] When a defendant is represented by an attorney and attempts to file a pro se 

motion, it is “within the trial court’s discretion to accept and respond to it or to 

strike it.” Kindred v. State, 521 N.E.2d 320, 325 (Ind. 1988); see Ind. Trial Rule 

11. Indeed, it is well settled that once “counsel is appointed, a criminal 

defendant speaks to the court through his or her attorney.” Schepers v. State, 980 

N.E.2d 883, 886 (Ind. Ct. App. 2012). A request to proceed pro se is a waiver 

of the right to counsel. Id. Consequently, there are several requirements to 

successfully invoke the right of self-representation. Id. Specifically, “the 

defendant must make a ‘clear and unequivocal’ request within a reasonable 

time prior to trial.” Id. (quoting Stroud v. State, 809 N.E.2d 274, 279 (Ind. 

2004)). Also, a defendant’s choice must be knowing, intelligent, and voluntary. 

Id.

[9] The record indicates that attorney Burns filed an appearance as Harney’s trial 

counsel on September 23, 2015. On November 24, 2015, Burns filed a motion 

to withdraw his appearance. The trial court set a hearing on the motion for 

December 7, 2015. On December 3, 2015, Harney sent a pro se letter to the 

trial court requesting a speedy trial under Criminal Rule 4(B). On December 4, 
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the trial court entered an order striking the pro se motion, noting that Harney 

was represented by counsel. Following the hearing on December 7, 2015, the 

trial court granted Burns’s motion to withdraw and appointed attorney Kyle 

Cassidy. At no relevant time was Harney unrepresented by counsel, nor did he 

ever unequivocally invoke his right of self-representation.2

[10] Harney concedes that the trial court clearly had the discretion to strike his pro 

se speedy trial motion under the circumstances but that the question remains as 

to “whether the trial court should have struck the motion.” Reply Br. at 4. 

This is merely a request for us to reweigh the evidence, which we will not do. 

The trial court did not abuse its discretion.

Section 2 – The trial court did not clearly err in denying 

Harney’s motion for discharge.

[11] We next address the trial court’s denial of Harney’s motion for discharge 

pursuant to Criminal Rule 4(B). Appellate review of a trial court’s denial of a 

Criminal Rule 4(B) motion for discharge is only for clear error. Austin, 997 

N.E.2d at 1040. This Court neither reweighs the evidence nor determines the 

credibility of witnesses. Id. “We consider only the probative evidence and 

reasonable inferences supporting the judgment and reverse only on a showing 

 

2 Both Harney and the State question why the trial court’s December 4 order striking Harney’s pro se motion 

and referencing the appointment of new counsel was apparently not served on the parties or entered into the 

chronological case summary until December 14, 2015. The State suggests a typographical error regarding the 

date, while Harney suggests lack of diligence or “confusion” on the trial court’s part. Appellant’s Br. at 19. 

Regardless, we agree with the State that any “irregularities” in the trial court’s order do not change the fact 

that Harney was represented by counsel at all relevant times and at no time did he unequivocally invoke his 

right of self-representation.
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of clear error. Clear error is that which leaves us with a definite and firm 

conviction that a mistake has been made.” Id. (citation omitted).

[12] As we concluded above, the trial court did not abuse its discretion in striking 

Harney’s pro se speedy trial motion. Thus, at the time Harney’s counsel filed a 

motion for discharge on March 30, 2016, there was no speedy trial motion 

pending. In denying the motion for discharge, the trial court noted that Harney 

was represented by counsel when he attempted to file the pro se motion for 

speedy trial. Because Harney did not properly request an early trial pursuant to 

Criminal Rule 4(B), the trial court did not clearly err in denying his motion for 

discharge. See Jenkins v. State, 809 N.E.2d 361, 368 (Ind. Ct. App. 2004), trans. 

denied. The trial court’s rulings are affirmed.

[13] Affirmed.

Robb, J., and Bradford, J., concur