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: ATTORNEYS FOR APPELLEE:

RICHARD D. MARTIN GREGORY F. ZOELLER

Frankfort, Indiana Attorney General of Indiana

BRIAN REITZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CORNELIO MARTINEZ, )

)

Appellant-Defendant, )

)

vs. ) No. 12A02-1111-CR-1023

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CLINTON SUPERIOR COURT

The Honorable Justin H. Hunter, Judge

Cause No. 12D01-0701-FD-16

May 29, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge 
2

Appellant-Defendant Cornelio Martinez appeals following his conviction for Class D

felony Operating a Vehicle While Intoxicated1(“OWI”) and the determination that he is a 

Habitual Controlled Substance Offender.2 Specifically, Martinez contends that the trial court 

abused its discretion in granting the State’s motion to correct error without first granting him 

the opportunity to respond and in admitting certain evidence at trial. We affirm. 

FACTS AND PROCEDURAL HISTORY

At approximately 11:00 p.m. on January 27, 2007, Clinton County Sheriff’s 

Department Reserve Deputy Rick Sturgess was parked on the side of State Road 28. The 

area was a construction zone with multiple, clearly-displayed signs indicating that the speed 

limit was forty-five miles per hour (“45 mph”). The road, which was normally four lanes and 

had a speed limit of fifty-five miles per hour (“55 mph”), was limited to two lanes and had 

the lower posted speed limit due to the construction and was marked as a no-passing zone.

Deputy Sturgess observed Martinez’s vehicle traveling at a speed that he believed to 

be in excess of the posted speed limit. Deputy Sturgess used his radar to measure Martinez’s 

speed at 55 mph. As Martinez passed Deputy Sturgess’s cruiser, Deputy Sturgess saw 

Martinez’s vehicle drift left of the solid center line on the road. Deputy Sturgess activated 

his headlights and followed Martinez’s vehicle. While following Martinez’s vehicle, Deputy 

Sturgess saw the tires on Martinez’s vehicle drift across the center line for a second time. 

Deputy Sturgess activated his emergency lights and initiated a traffic stop. During the traffic 

 

1

 Ind. Code § 9-30-5-2 (2006).

2

 Ind. Code § 35-50-2-10(b) (2006). 
3

stop, Deputy Sturgess collected evidence which indicated that Martinez was driving while 

intoxicated. 

On January 29, 2007, the State charged Martinez with Class D felony OWI and Class 

D felony operating a vehicle with an alcohol concentration equivalent of .15 or greater. The 

State also alleged that Martinez is a habitual controlled substance offender. On March 27, 

2008, Martinez pled guilty to Class D felony operating while intoxicated and admitted that he 

is a habitual controlled substance offender. The trial court accepted Martinez’s guilty plea, 

and on April 21, 2008, sentenced him to an aggregate five-year term of incarceration.

On October 25, 2010, Martinez filed a petition for post-conviction relief. On January 

3, 2011, the post-conviction court granted Martinez relief and issued an order setting aside 

Martinez’s conviction, finding that the trial court had failed to advise him of his Boykin3

rights and had incorrectly advised him of the minimum possible sentence for the habitual 

controlled substance offender enhancement. The trial court subsequently scheduled trial for 

September 13, 2011. 

On August 18, 2011, Martinez filed a motion for discharge in which he alleged that 

the State had failed to bring him to trial within the one-year time limitation set forth by 

Indiana Criminal Rule 4(C). The trial court conducted a hearing on Martinez’s motion on 

September 6, 2011. The trial court granted Martinez’s motion for discharge on September 7, 

2011. 

 

3

 Boykin v. Alabama, 395 U.S. 328 (1969). 
4

On September 8, 2009, the State filed a motion to correct error in which it alleged that 

the trial court had erroneously granted Martinez’s motion for discharge. Later that day, the 

trial court conducted a telephonic hearing at which both the State and Martinez were 

represented by counsel. This hearing was unrecorded. After considering the arguments 

made by the parties during the telephonic hearing, the trial court granted the State’s motion to 

correct error on September 9, 2009. 

On September 12, 2011, Martinez filed a motion to correct error and a motion to 

suppress the evidence obtained as a result of the traffic stop. The trial court denied 

Martinez’s motion to correct error.4 On September 13, 2011, the trial court conducted a 

hearing on Martinez’s motion to suppress. The trial court denied the motion. The parties 

agreed to incorporate the evidence from the suppression hearing into trial and proceeded to 

trial. 

Following the conclusion of trial, the trial court found Martinez guilty of OWI and 

operating with an alcohol concentration equivalent of .15 or greater, as Class A 

misdemeanors, enhanced the convictions to Class D felonies, and found Martinez to be a 

habitual controlled substance offender. On November 14, 2001, the trial court sentence 

Martinez to one and one-half years for the OWI conviction, enhanced by three years by virtue 

of the habitual controlled substance offender finding. This appeal follows.

DISCUSSION AND DECISION

 

4

 Martinez does not challenge the trial court’s denial of his motion to correct error or allege that the 

trial court abused its discretion by denying it without first giving the State an opportunity to respond.
5

I. Motion to Correct Error

Martinez contends that the trial court abused its discretion in granting the State’s 

motion to correct error. 

A trial court has wide discretion to correct errors and to grant new trials. De 

Vittorio v. Werker Bros., Inc. (1994), Ind. App., 634 N.E.2d 528, 530; Ind. 

Crim. Rule 16(B). We will reverse only for an abuse of discretion. Id. An 

abuse of discretion will be found when the trial court’s action is against the 

logic and effect of the facts and circumstances before it and the inferences 

which may be drawn therefrom. Id. An abuse of discretion also results from a 

trial court’s decision that is without reason or is based upon impermissible 

reasons or considerations. Id.

Gregor v. State, 646 N.E.2d 52, 53 (Ind. Ct. App. 1994).

The record demonstrates that Martinez’s conviction was overturned and the matter 

remanded for trial after the post-conviction court issued an order granting Martinez relief. 

The matter was subsequently scheduled for trial on September 13, 2011. Martinez filed a 

motion for discharge on August 18, 2011, arguing that the State had failed to bring him to 

trial within one year as required by Indiana Criminal Rule 4(C). The trial court granted 

Martinez’s motion for discharge on September 7, 2011. On September 8, 2011, the State 

filed a motion to correct error. Later that same day, the trial court conducted an unrecorded

telephonic hearing on the State’s motion. It is undisputed that both the State and Martinez 

were represented at this hearing by counsel. After considering the parties’ arguments made 

during the telephonic hearing, the trial court granted the State’s motion on September 9, 

2011, and vacated its prior discharge order.

A. Opportunity to be Heard
6

Martinez argues that the trial court abused its discretion in granting the State’s motion 

one day after it was filed because, in doing so, the trial court denied him the opportunity to 

file a statement in opposition pursuant to Indiana Trial Rule 59(E). Trial Rule 59(E) provides 

in relevant part that “Following the filing of a motion to correct error, a party who opposes 

the motion may file a statement in opposition to the motion to correct error no later than 

fifteen (15) days after service of the motion.” For its part, the State argues that the trial court 

did not abuse its discretion because Martinez was represented by counsel at the telephonic 

hearing conducted by the trial court and, as such, was afforded the opportunity to respond to 

the State’s motion. 

In support of his claim, Martinez relies on a panel of this court’s opinion in Hubbard 

v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998), in which the court concluded that 

the trial court abused its discretion in granting the Appellee’s motion to correct error without 

first giving the Appellant the opportunity to respond to the motion. While this case is similar 

to Hubbard in that, in both cases, the trial court granted the moving party’s motion to correct 

error before the other party had the opportunity to file a written statement in opposition to the 

motion, see Hubbard, 690 N.E.2d at 1220 n.1, Hubbard is distinguishable. Unlike in 

Hubbard, Martinez was given the opportunity to respond to the State’s motion to correct 

error during a telephonic hearing at which he was represented by counsel. Given that Trial 

Rule 59(E) was “designed to expressly create an opportunity for the opponent of the motion 

to respond[,]” see Ralston v. State, 412 N.E.2d 239, 245 (Ind. Ct. App. 1980) (discussing the 

purpose of Indiana Trial Rule 59(F)(1), which has since been recodified as Indiana Trial Rule 
7

59(E)), it would elevate form over substance to rule in Martinez’s favor when such an 

opportunity was, in fact, afforded to him. 

In any event, any error in granting the State’s motion without first giving Martinez the 

opportunity to file a written statement in opposition could, at most, be considered harmless 

because as we discuss next, the relevant controlling authority demonstrates that the trial court 

properly granted the State’s motion.

B. Applicability of Indiana Criminal Rule 4(C)

“The Indiana Supreme Court has held that the time limitations of Indiana Criminal 

Rule 4(C) do not apply on retrial.” State v. Montgomery, 901 N.E.2d 515, 519 (Ind. Ct. App. 

2009) (citing Lahr v. State, 615 N.E.2d 150, 151 (Ind. Ct. App. 1993)). “Instead, where 

retrial is required, a defendant must rely on his constitutional speedy trial right, which 

requires that a defendant be tried within a reasonable time.” Id. 

Here, Martinez’s conviction for Class D felony OWI was set aside by the postconviction court because of trial court error. In light of the post-conviction court’s order 

granting Martinez relief, the trial court scheduled a trial for September 13, 2011. Because the 

September 13, 2011 trial was only necessary after Martinez’s conviction was set aside, we 

believe that the September 13, 2011 trial was equivalent to a retrial following a reversal of an 

individual’s conviction on appeal. Moreover, we do not see why this rule would not apply in 

situations where a conviction following a guilty plea has been set aside. Thus, we conclude 

that the trial court was required to conduct a trial within a reasonable time of the date the 

post-conviction court’s order was issued. See id. 
8

“In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 

(1972), the United States Supreme Court articulated a balancing test to be used 

when evaluating a speedy trial claim under the United States Constitution.” 

Sturgeon v. State, 683 N.E.2d 612, 616 (Ind. Ct. App. 1997), trans. denied. 

Indiana has employed the same balancing test to evaluate speedy trial claims 

pursued under our state constitution. Id. (citing Crawford v. State, 669 N.E.2d 

141, 145 (Ind. 1996); Fortson v. State, 269 Ind. 161, 379 N.E.2d 147 (1978)). 

The balancing involves an evaluation of both the State’s and the defendant’s 

conduct, taking into consideration such factors as: the length of the delay, the 

reason for the delay, the defendant’s assertion of his speedy trial right, and 

prejudice to the defendant. Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. at 

2192).

Id. at 520. 

Whether a particular delay in bringing a defendant to trial is such as to implicate the 

defendant’s constitutional rights to a speedy trial depends largely on the peculiar 

circumstances of the case. Lahr, 615 N.E.2d at 152 (citing Barker, 407 U.S. at 530-31; 

O’Neill v. State, 597 N.E.2d 379, 381 (Ind. Ct. App. 1992)).

“Until there is some delay which is presumptively prejudicial, there is no 

necessity for inquiry into the other factors that go into the balanc[ing test 

which courts should apply in determining whether a particular defendant has 

been deprived of his right to a speedy trial]. Nevertheless, because of the 

imprecision of the right to speedy trial, the length of delay that will provoke 

such an inquiry is necessarily dependent upon the peculiar circumstances of the

case. To take but one example, the delay that can be tolerated for an ordinary 

street crime is considerably less than for a serious, complex conspiracy 

charge.”

Lahr, 615 N.E.2d at 152 (quoting Barker, 407 U.S. at 530-31) (emphasis added).

Here, the post-conviction court issued its order granting Martinez relief on January 3, 

2011, and the trial court scheduled the matter for a trial on September 13, 2011. 

Approximately eight months passed between the post-conviction court’s order which 
9

necessitated the need for a trial and the trial date set by the court. It seems reasonable that 

some delay would be necessary as both the State and Martinez would require time to prepare 

for a trial relating to an incident that occurred nearly four and one-half years before 

Martinez’s conviction was set aside. Martinez has not provided any authority suggesting that 

an eight-month delay was presumptively prejudicial, and we find none. 

In addition, Martinez has failed to show that he suffered actual prejudice during the 

intervening eight months between the date his conviction was set aside and the date his case 

proceeded to trial. 

Prejudice, of course, should be assessed in the light of the interests of 

defendants which the speedy trial right was designed to protect. This Court 

has identified three such interests: (i) to prevent oppressive pretrial 

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to 

limit the possibility that the defense will be impaired. Of these, the most 

serious is the last, because the inability of a defendant adequately to prepare 

his case skews the fairness of the entire system. If witnesses die or disappear 

during a delay, the prejudice is obvious. There is also prejudice if defense 

witnesses are unable to recall accurately events of the distant past. Loss of 

memory, however, is not always reflected in the record because what has been 

forgotten can rarely be shown.

Montgomery, 901 N.E.2d at 522 (quoting Barker, 407 U.S. at 532). The burden is on the 

defendant to show he was actually prejudiced by the delay. Id. (citing Sturgeon, 683 N.E.2d 

at 617). 

Martinez has not provided any argument or pointed to any evidence indicating that he 

suffered any actual prejudice during the intervening eight months between the postconviction court’s order setting aside his conviction and the September 13, 2011 trial date. In

addition, Martinez does not claim that the eight-month delay is the result of a deliberate 
10

attempt by the State to delay the trial in order to hamper his defense. As such, he has failed 

to carry his burden of showing that he was actually prejudiced by the eight-month delay. See 

id. 

Because Martinez has failed to show that the eight-month delay was presumptively 

prejudicial or that he was prejudiced by the eight-month delay, we conclude that it was not 

unreasonable. Thus, the eight-month delay did not violate Martinez’s right to a speedy trial.5

See Montgomery, 901 N.E.2d at 519-23; Lahr, 615 N.E.2d at 152-54. 

II. Admission of Evidence

Martinez also contends that the trial court abused its discretion in denying his motion 

to suppress certain evidence obtained during the traffic stop because “no traffic violation was 

committed,” and Deputy Sturgess “did not have reasonable suspicion that a crime was being 

committed.” Appellant’s Br. p. 29. Although Martinez originally challenged the admission 

of the evidence through a pre-trial motion to suppress, he appeals following a completed 

bench trial and thus challenges the admission of such evidence at trial. “Accordingly, ‘the 

issue is more appropriately framed as whether the trial court abused its discretion by 

admitting the evidence at trial.’” Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007) 

(quoting Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003)). 

Our standard of review for rulings on the admissibility of evidence is 

essentially the same whether the challenge is made by a pre-trial motion to 

suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-

75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the 

 

5

 Having concluded that the eight-month delay following the post-conviction court’s order that set 

aside Martinez’s conviction was not unreasonable and did not violate Martinez’s right to a speedy trial, we 

need not consider the parties’ arguments relating to the allocation of days attributable to each party or waiver.
11

evidence, and we consider conflicting evidence most favorable to the trial 

court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), 

trans. denied. We also consider uncontroverted evidence in the defendant’s 

favor. Id.

Id. 

A trial court has broad discretion in ruling on the admissibility of evidence. 

Washington, 784 N.E.2d at 587 (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind. Ct. 

App. 2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of 

evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 

273). An abuse of discretion involves a decision that is clearly against the logic and effect of 

the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 

1095 (Ind. Ct. App. 2000)).

Martinez argues that the trial court abused its discretion in admitting the evidence 

stemming from the traffic stop because he did not commit a traffic infraction and Deputy 

Sturgess lacked reasonable suspicion to stop his vehicle. “‘It is well-settled that a police 

officer may briefly detain a person whom the officer believes has committed an infraction or 

an ordinance violation.’” Datzek v. State, 838 N.E.2d 1149, 1154 (Ind. Ct. App. 2005)

(quoting Peete v. State, 678 N.E.2d 415, 419 (Ind. Ct. App. 1997)). Where no traffic 

infraction has been committed, the police officer may initiate an investigatory stop if the 

officer has reasonable suspicion of criminal activity at the time he makes the stop. See 

Barrett v. State, 837 N.E.2d 1022, 1027 (Ind. Ct. App. 2005). 

Here, Deputy Sturgess initiated the traffic stop after he measured Martinez’s vehicle 
12

traveling at a speed of 55 mph. It is undisputed that the normal speed limit for the stretch of 

road on which Martinez was traveling was 55 mph. However, due to the ongoing road 

construction and lane restrictions, signage indicated that the posted speed limit on the road 

was 45 mph. Indiana Code section 9-21-8-41 indicates, in relevant part, that:

(a) A person who drives a vehicle or street car may not disobey the instructions 

of an official traffic control device placed in accordance with this article unless 

otherwise directed by a police officer.

****

(c) All traffic shall observe and obey traffic control devices including signals, 

signs, and warnings, and all directions, signs, or warning devices that may be 

given or displayed by a police officer or flagman to safely control traffic 

movement at a worksite and promote safety at a worksite.

In arguing that the traffic stop was not proper, Martinez concedes that he was driving 

at a rate of 55 mph at the time of the stop, but claims that his speed did not constitute a traffic 

violation. Martinez argues that he was not obligated to follow the posted 45 mph speed limit 

because there were no construction workers present at the time of the traffic stop and the 

State has failed to prove that the establishing authority had determined that the safety of the 

traveling public required enforcement of the worksite speed limit. See Indiana Code section 

9-21-5-11(c) (providing that reduced speed is only required when construction workers are 

present or when the establishing authority determines that the safety of the traveling public 

requires enforcement of the worksite speed limit). We disagree and conclude that the 

placement of a sign imposing a 45 mph speed limit indicates that the establishing authority

had deemed the lower speed limit necessary. As such, Martinez was required to follow the 

posted 45 mph speed limit, and he committed a traffic violation by traveling in excess of the 
13

posted speed limit. In addition, Deputy Sturgess testified that he pulled Martinez’s vehicle 

over after he saw the tires on the left side of Martinez’s vehicle twice cross the solid yellow 

center line in violation of Indiana Code section 9-21-8-2(a). Accordingly, because Martinez 

committed a traffic violation by admittedly traveling at a rate in excess of the posted 45 mph 

speed limit and by twice crossing the solid the yellow center line in violation of Indiana Code 

section 9-21-8-2(a), the traffic stop was justified and the trial court did not abuse its 

discretion in admitting the evidence that stemmed from the traffic stop.6 See Datzek, 838 

N.E.2d at 1154 (providing that “[i]t is well-settled that a police officer may briefly detain a 

person whom the officer believes has committed an infraction”); Osborne v. State, 805 

N.E.2d 435, 439 (Ind. Ct. App. 2004) (providing that the “decision to stop a vehicle is 

reasonable where the police have probable cause to believe that a traffic violation has 

occurred”), trans. denied.

The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.

 

6

 Having concluded that the traffic stop was justified because Martinez was traveling in excess of the 

posted 45 mph speed limit and because his tires twice crossed the solid yellow center line in violation of 

Indiana Code section 9-21-8-2(a), we need not consider whether, if no traffic violation occurred, whether 

Deputy Sturgess had the reasonable suspicion of criminal activity necessary to conduct an investigatory stop.