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:

TYLER D. HELMOND GREGORY F. ZOELLER

Voyles Zahn Paul & Hogan Attorney General of Indiana

Indianapolis, Indiana

GEORGE P. SHERMAN

Deputy Attorney General

 Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JERMAINE M. LOCKETT, )

)

Appellant-Defendant, )

)

vs. ) No. 02A03-1107-CR-376

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Wendy W. Davis, Judge

Cause No. 02D04-1009-FA-46

May 17, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Jermaine M. Lockett appeals his convictions and the sentences imposed for 

dealing in cocaine, as a Class A felony, and possession of marijuana, as a Class A 

misdemeanor, following a jury trial. Lockett presents four issues for review, which we 

restate as:

1. Whether the trial court abused its discretion when it denied Lockett’s 

motion for a mistrial due to juror misconduct.

2. Whether the trial court abused its discretion when it denied his 

motion to dismiss under Criminal Rule 4(B).

3. Whether the trial court abused its discretion when it identified 

aggravators in support of Lockett’s sentence.

4. Whether Lockett’s sentence is inappropriate in light of the nature of 

the offenses and his character.

We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of August 26, 2010, Officer Douglas Weaver of the 

Fort Wayne Police Department was conducting surveillance, on foot, in a “high drug and 

crime area” in Fort Wayne. Transcript at 159. After watching from a vacant lot in the 

area for almost an hour, the officer noticed that a “[l]arge amount of vehicular and 

pedestrian traffic was coming to and from the [sic] 3715 Oliver Street.” Id. at 161. Two 

males standing in front of the residence would make contact with the pedestrians and 

vehicle occupants who arrived. The males would look back and forth down the street 

before approaching a vehicle that was parked just north of the residence between 3715 

and 3709 Oliver Street, and they would again look back and forth down the street before 
3

returning to the residence. The men would enter the house with those people, who left 

the house again shortly. 

Lockett was one of the two men walking back and forth to the house. Several 

times Officer Weaver observed Lockett approach a green Oldsmobile that was parked in 

front of the residence. Lockett always approached the passenger side of the Oldsmobile 

while the second man stayed back a few feet, looking up and down the street. Lockett 

would reach into the passenger front window each time, but the doors never opened and 

Lockett never sat in the vehicle. 

At one point Officer Weaver saw Lockett retrieve an item from the front passenger 

side, place the item in Lockett’s front pocket, remove another item, and put the removed 

item in his right hand. When Lockett began to walk away from the Oldsmobile, Officer 

Weaver approached and instructed Lockett to show his hands. Instead, Lockett began to 

walk around the back of the Oldsmobile toward the driver’s side. When Officer Weaver 

again ordered Lockett to show his hands, Lockett threw the item from his right hand over 

the Oldsmobile toward the sidewalk. Officer Weaver then ordered Lockett to the ground.

When Officer Weaver looked into the Oldsmobile he observed “two clear plastic 

baggies with a green, leafy substance inside them in plain view on the center con[sole in] 

the front seat area of the vehicle.” Id. at 166-67. Based on his training and experience, 

the officer believed the leafy substance to be marijuana. Officer Weaver then checked 

the sidewalk in the direction where he had seen Lockett throw something to the ground. 

There he found a small clear plastic baggie containing a white chalky substance, which 

the officer believed to be cocaine. 
4

Officer Weaver arrested Lockett. In the search incident to arrest, officers who had 

arrived to assist found in Lockett’s front right pocket a larger clear plastic back that also 

contained “the same off[-]white rocky substance that [Officer Weaver] believed to be 

cocaine.” Id. at 168. Officers also found two additional bags in Lockett’s small front 

right pants pocket and $187 in cash on him. And, in a later search of the vehicle, officers 

found a scale, a pocket knife, and a small container holding a brown substance. 

Officers transported Lockett to the police station, where they placed him alone in 

an investigation room, although they monitored him from another room. They observed 

him remove an item from his shoe and then place his hand “down the back of his pants 

toward his buttocks.” Id. at 171. When Officer Weaver then entered the investigation 

room, he asked about the item Lockett had removed. Lockett answered that he had 

placed it in his anus. A subsequent search of Lockett’s anus disclosed a small clear 

baggie containing what later tested to be cocaine. Officers found an additional baggie in 

Lockett’s sock and $460 cash under the sole of his shoe. 

Testing of the contents of the plastic baggies found on Lockett and in his vehicle 

showed that they contained cocaine base. The contents of the bags weighed 1.65 grams, 

7.84 grams, .28 gram, 1.14 grams, and .89 grams respectively. Tests also showed that the 

green leafy substance found in Lockett’s car was marijuana and weighed 1.6 grams. 

The State charged Lockett with dealing in cocaine, as a Class A felony, and 

possession of marijuana, as a Class A misdemeanor. The trial court appointed Gregory 

Fumarolo as defense counsel. Fumarolo represented Lockett at a pre-trial conference on 

November 15, 2010, when the December 1 trial date was confirmed. However, Lockett 
5

and Fumarolo also alerted the trial court that the two had differences of opinion regarding 

Lockett’s representation. And on November 30, Fumarolo filed a motion to withdraw. 

The trial court conducted a hearing the same day, after which the court granted the 

motion to withdraw and, on its own motion, vacated the December 1 trial date. On 

December 2, public defender Michelle Fennessy Kraus appeared for Lockett. The court 

reset the trial date for March 24, 2011.

On March 18, 2011, Lockett filed a motion to dismiss the charges for violation of 

his right to a speedy trial. He also moved for an order in limine as to drug evidence 

collected at the police station. The court denied the motion to dismiss and, over 

Lockett’s objection, continued the trial date to June 15, 2011. 

The jury trial commenced on June 15. The trial court admitted the drug evidence 

over Lockett’s objection. During trial Lockett also filed a motion for a mistrial on the 

ground that one of the jurors had been sleeping. After questioning the juror, the trial 

court denied the motion, and the trial resumed. The jury found Lockett guilty of both 

counts as charged. On July 19, Lockett filed a pro se “[m]otion to [w]ithdraw [c]ounsel.” 

Appellant’s App. at 5. On July 15, the court convened for sentencing, but Lockett 

insisted that he did not want Kraus to represent him. As a result, and due to Lockett’s 

behavior at the hearing, the trial court continued the sentencing hearing. On July 25 the 

court reconvened for sentencing and, following argument by counsel, entered judgment 

of conviction on the verdicts and sentenced Lockett to forty-five years for dealing in 

cocaine and one year for possession of marijuana, to be served concurrently. Lockett 

now appeals. 
6

DISCUSSION AND DECISION

Issue One: Motion for Mistrial

Lockett first contends that the trial court should have granted his motion for a 

mistrial because a juror fell asleep during trial. “[J]uror misconduct is in the first instance 

a question for the trial court and the decision to grant or deny a mistrial is a matter 

committed to the trial court’s discretion, reviewable solely on the issue of abuse of 

discretion.” Smith v. State, 432 N.E.2d 1363, 1367 (Ind. 1982) (citations omitted). 

“[T]here is a two-step approach in determining whether prejudice has resulted from the 

juror’s inattention. First, it must be shown that the juror was actually inattentive.

Second, it must be shown that the juror’s action actually resulted in prejudice to the 

defendant.” Id. at 1367-68 (internal quotation marks and citation omitted). “This 

approach is consistent with our well-settled rule that although a trial may not be free from 

error, every error of the trial court does not require that the case be reversed. Only when 

the error has caused prejudice to the defendant is there cause to reverse.” Id. at 1368 

(citation omitted).

We first consider whether Lockett has shown that a juror was actually inattentive. 

Lockett made a timely objection and requested a mistrial when he observed that Juror 36 

was asleep during testimony crucial to the defense.1 Lockett relies on testimony by the 

trial court reporter and the trial court bailiff regarding their observations of Juror 36 to 

show that that juror was actually inattentive. The court reporter testified that Juror 36’s 

eyes were closed for at least fifteen minutes and that he was perfectly still each time she 

 

1

 Juror 36 was seated in Seat 11 in the jury box. 
7

looked at him during the testimony of two chemists. And the trial court bailiff testified 

that he had seen Juror 36’s eyes closed during a two- or three-minute period when both 

attorneys were having a sidebar with the trial court about the sleeping juror.

But the trial court also questioned Juror 36 after Lockett moved for a mistrial:

Court: . . . We’ve noticed [you] closing your eyes and dozing a little 

bit. We don’t know if you’re actually dozing or if that’s just 

the way you listen. My question is, after being here, at the 

close of the evidence, you can render a true and accurate 

verdict?

Juror 36: Yes.

Court: Thank you. Thank you so much. Anything else?

Ms. Kraus [for defense]: You have heard everything?

Juror 36: Yes, ma’am.

Ms. Kraus: All right. Would you agree that you’ve—and I’m not trying 

to pick. I’m just trying to represent my client. It has 

appeared that your eyes have been closed at least for 

approximately 15 minutes during the course of the last, I 

don’t know, it’s two people having testified. Am I accurate 

about that?

Juror 36: Yeah, off and on.

Ms. Kraus: All right. And that you say you’ve heard everything? 

Juror 36: Yes.

Transcript at 224-25. 

Alleged misconduct, such as sleeping by a juror, is a factual issue committed to 

the trial court’s discretion. See Lenover v. State, 550 N.E.2d 1328, 1332 (Ind. Ct. App. 

1990). Although Juror 36 was observed to have his eyes closed during a few minutes of 

testimony, he stated that he had heard everything and could render a true and accurate 
8

verdict. In light of the responses by Juror 36, the trial court did not abuse its discretion 

when it determined that Lockett had not shown actual inattentiveness by that juror. See

id. 

Again, Lockett was required to show both prongs in order to demonstrate an abuse 

of discretion. See Smith, 432 N.E.2d at 1367. Lockett has not proved the first of two 

prongs required to show that he was entitled to a mistrial due to juror misconduct. Thus, 

we need not consider the second prong regarding prejudice. Lockett has failed to show 

that the trial court abused its discretion when it denied his request for a mistrial.

Issue Two: Criminal Rule 4(B) Dismissal

Lockett next contends that the trial court abused its discretion when it denied his 

request to be discharged under Criminal Rule 4(B). Pursuant to Criminal Rule 4(B), a 

defendant

shall be discharged if not brought to trial within seventy (70) calendar days 

from the date of [a speedy/early trial 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.

In other words, “ ‘the State has an affirmative duty to try an incarcerated defendant who 

requests a speedy trial within seventy days.’ ” State v. Jackson, 857 N.E.2d 378, 380 

(Ind. Ct. App. 2006) (quoting McKay v. State, 714 N.E.2d 1182, 1186 (Ind. Ct. App. 

1999)). However, under Criminal Rule 4(F), that seventy-day period may be extended 

where the delay is caused by the act of the defendant. 

Here, the State charged Lockett on September 2, 2010. On September 28, by 

counsel, Lockett requested a speedy trial. At the November 15 pre-trial conference, the 
9

trial court confirmed a December 1 trial date, but Lockett and his counsel informed the 

court of difficulties in the attorney-client relationship. On November 22, the Chief Public 

Defender received a letter from Lockett, asking for a new lawyer and accusing Fumarolo, 

Lockett’s counsel, of “working with the DEA” and “trying to lose [Lockett’s] case.” 

Appellant’s App. at 51. In the letter Lockett also said that the problems in the attorneyclient relationship were personal, not merely a matter of strategy, and he asked for the 

appointment of new counsel. The Chief Public Defender forwarded the letter to the trial 

court.

On November 30, Lockett’s counsel filed a motion to withdraw, and the trial court 

held a hearing on the motion the same day. At the hearing, Lockett’s counsel agreed that 

the attorney-client relationship was “in an untenable position.” November 30, 2010, 

Transcript at 4. The trial court noted to Lockett:

You insist on a speedy trial. He [counsel] doesn’t believe that’s in your 

best interest. And certainly you’ve got your right to a speedy trial, but now 

we’ve got a situation where your attorney[-]client relationship has 

deteriorated in such a degree he doesn’t feel that he can properly represent 

you and it doesn’t sound like you want him to represent you either based on 

the letter that you sent Chief Public Defender Hammond.

Id. at 5. The trial court then ruled:

All right, under the circumstances the Court finds that his [Lockett’s] right 

to a fair trial and effective assistance of counsel, I’ll waive his right to a 

speedy trial. Your [Fumarolo’s] motion to withdraw is granted. I’ll order 

the public defender to reassign this case. Cancel the trial tomorrow and 

we’ll have a trial setting and status and all that on December—three weeks 

from today, December 21 at 9:00.

Id. at 6. At the conclusion of the hearing, the court informed Locket that new counsel 

would be appointed, and Lockett said, “Thank you.” Id. at 8. 
10

Our supreme court has addressed the tension between the two rights:

[T]he right to assistance of counsel includes, as a necessary corollary, the 

right to adequate time for preparation. Moreover, Saunders orally 

requested a change of counsel in the first instance and therefore set in 

motion the chain of events which caused him to repeatedly require new 

counsel when conflicts arose. Any delay was for his benefit and was 

intended to insure him his constitutional rights. The chain of events was 

not complete until the day of trial when the trial judge refused to allow 

withdrawal of the same counsel Saunders had been appointed in the first 

place. The delay occasioned by these circumstances is attributable to 

Saunders. We therefore conclude Saunders was not denied his early trial 

right.

Saunders v. State, 562 N.E.2d 729, 736 (Ind. Ct. App. 1990), summarily aff’d in relevant 

part, 584 N.E.2d 1087, 1088 (Ind. 1992). In other words, where the delay is caused by 

change of defendant’s counsel, such will be charged to the defendant only where actual 

delay results. Biggs v. State, 546 N.E.2d 1271, 1275 (Ind. Ct. App. 1989). 

Lockett argues that he “did not have a right to effective assistance of counsel or a 

speedy trial; he had a right to both.” Appellant’s Brief at 11. Lockett is correct that he 

had both rights. But the circumstances in this case, namely the breakdown in the 

attorney-client relationship, prevented both rights from being preserved. Had the trial 

court maintained the trial date and denied the request by Lockett and his counsel to 

remove counsel from the case, Lockett could have later raised a claim of ineffective 

assistance of counsel due to the documented breakdown in the attorney-client 

relationship. The trial court chose instead to allow counsel to withdraw and order the 

appointment of new counsel in order to provide Lockett with effective assistance of 

counsel. 
11

The delay beyond the seventy-day speedy trial date was caused by the breakdown 

in the attorney-client relationship and the request on the eve of trial, by both Lockett and 

his counsel, that the court appoint new counsel to represent Lockett. We conclude that 

the continuation of the trial date is attributable to Lockett and, therefore, that he was not 

denied his right to a speedy trial. 

Issue Three: Identification of Aggravators

Lockett also contends that the trial court abused its discretion when it sentenced 

him. Specifically, he argues that several aggravators found by the trial court are not 

supported by the record. Sentencing decisions rest within the sound discretion of the trial 

court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 

868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

So long as the sentence is within the statutory range, it is subject to review 

only for abuse of discretion. As we have previously observed, “[i]n order 

to carry out our function of reviewing the trial court’s exercise of discretion 

in sentencing, we must be told of [its] reasons for imposing the sentence 

. . . . This necessarily requires a statement of facts, in some detail, which 

are peculiar to the particular defendant and the crime, as opposed to general 

impressions or conclusions. Of course such facts must have support in the 

record.” Page v. State, 424 N.E.2d 1021, 1023 (Ind. 1981). An abuse of 

discretion occurs if the decision is “clearly against the logic and effect of 

the facts and circumstances before the court, or the reasonable, probable, 

and actual deductions to be drawn therefrom.” K.S. v. State, 849 N.E.2d 

538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. 

App. 1985)).

One way in which a trial court may abuse its discretion is failing to 

enter a sentencing statement at all. Other examples include entering a 

sentencing statement that explains reasons for imposing a sentence—

including a finding of aggravating and mitigating factors if any—but the 

record does not support the reasons, or the sentencing statement omits 

reasons that are clearly supported by the record and advanced for 

consideration, or the reasons given are improper as a matter of law. Under 

those circumstances, remand for resentencing may be the appropriate 
12

remedy if we cannot say with confidence that the trial court would have 

imposed the same sentence had it properly considered reasons that enjoy 

support in the record.

Id. at 490-91. In reviewing sentences in non-capital cases we examine both the written 

and the oral sentencing statements to discern the findings of the trial court. McElroy v. 

State, 865 N.E.2d 584, 589 (Ind. 2007).

Lockett contends that the trial court improperly identified certain aggravators. 

Specifically, he first argues that the trial court abused its discretion when it identified the 

use of a firearm as an aggravator in this case. At the sentencing hearing, after detailing 

Lockett’s criminal history, the trial court summarized other aggravators. As one of the 

aggravators, the court stated, “Candidly, looking at your history and the facts and 

circumstances of this, drugs and guns together I will find as an aggravating 

circumstance.” July 25, 2011, Sentencing Transcript at 7. The written sentencing 

statement also includes a similar statement of the aggravator: “Defendant involved with 

drugs and guns[.]” Appellant’s App. at 142. 

The trial court’s reference to guns is indeed curious. There was no evidence at 

trial that Lockett used or possessed a gun when committing the instant offenses. Nor did 

the prosecutor argue that Lockett used or possessed a firearm when committing the 

offenses in this case, although he did mention Lockett’s 1996 conviction for carrying a 

concealed weapon. The record does not support the trial court’s reference to “guns” as an 

aggravator. 

Lockett also complains that the sentencing statement is inadequate to the extent his 

sentence is based on the facts and circumstances of the case. In this regard he argues that 
13

“nothing about the facts and circumstances of the allegations against Lockett were out of 

the ordinary.” Appellant’s Brief at 14. He further asserts that the trial court’s sentencing 

statement is deficient because it does not set out the “ ‘particularized account of the 

aspects of the crime which illustrated to the court the defendant’s deservedness of an 

enhanced sentence.’ ” Id. (quoting Wethington v. State, 560 N.E.2d 496, 509-10 (Ind. 

1990)). A court may consider the facts and circumstances of the offenses when 

sentencing. Ind. Code § 35-38-1-7.1. But in such cases the trial court must explain why 

the manner of committing the offenses warrants the sentence imposed. Wethington, 560 

N.E.2d at 509-10. Here, the trial court did not explain why the facts and circumstances of 

the offenses warrant the sentence imposed. 

Lockett has met his burden to show that the trial court abused its discretion when 

it identified the two aggravators discussed above. However, the trial court also detailed 

Lockett’s significant criminal history and his “disdain” for the court based on his conduct 

at the failed sentencing hearing as aggravators. For the same reasons discussed below in 

Issue Four, we can say with confidence that the trial court would have imposed the same 

sentence even without the aggravators Lockett appeals. See Trusley v. State, 829 N.E.2d 

923, 927 (Ind. 2005). “[E]ven if the trial court is found to have abused its discretion in 

the process it used to sentence the defendant, the error is harmless if the sentence 

imposed was not inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 

2007), trans. denied. Thus, we consider whether Lockett’s sentence is inappropriate 

under Appellate Rule 7(B). 
14

Issue Four: Appellate Rule 7(B)

Although a trial court may have acted within its lawful discretion in determining a 

sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize [] 

independent appellate review and revision of a sentence imposed by the trial court.” 

Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This 

appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of 

a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his 

sentence is inappropriate in light of the nature of his offenses and his character. See App. 

R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the 

trial court's recognition or non-recognition of aggravators and mitigators as an initial 

guide to determining whether the sentence imposed was inappropriate. Gibson v. State, 

856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the 

appellate court that his or her sentence has met th[e] inappropriateness standard of 

review.” Roush, 875 N.E.2d at 812 (alteration original).

The Indiana Supreme Court more recently stated that “sentencing is principally a 

discretionary function in which the trial court’s judgment should receive considerable 

deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible 

sentencing scheme allows trial courts to tailor an appropriate sentence to the 

circumstances presented. See id. at 1224. The principal role of appellate review is to 

attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as 

inappropriate at the end of the day turns on “our sense of the culpability of the defendant, 
15

the severity of the crime, the damage done to others, and myriad other facts that come to 

light in a given case.” Id. at 1224.

We first observe the nature of the offenses. When Lockett was arrested, he had 

been observed walking to and from his parked car while meeting with people who had 

approached on foot or by car. When Officer Weaver instructed him to show his hands, 

Lockett attempted to hide evidence by throwing it away. Upon his arrest, he was found 

to possess more than eleven grams of cocaine as well as more than one gram of 

marijuana. And in his car officers found a scale and other devices commonly used in 

dealing drugs, and Lockett had hidden in his shoe a substantial amount of cash. While 

the details of Lockett’s conduct leading up to his arrest seem rather ordinary as far as 

drug-dealing offenses go, the amount of cocaine he possessed was substantial. 

We also consider Lockett’s character. Excluding the aggravators discussed above, 

the trial court found the following aggravators, all of which relate to Lockett’s character:

9 misdemeanor convictions; 8 felony convictions, including battery twice, 

domestic battery, bank robbery, 3 resisting law enforcement charges; multistate offender. In Wayne County, active warrant; domestic violence 

charge; felony probation revoked once; on parole when present offenses 

occurred; active warrant from Franklin County, Ohio; . . . prior attempts at 

rehabilitation have failed and Defendant’s actions and outbursts in this 

Court on July 15, 2011[,] show[] disdain for this Court’s authority.

Appellant’s App. at 142. Lockett is clearly a career criminal. His behavior leading up to 

trial and at the first sentencing hearing could be interpreted as manipulative at the very 

least and was definitely disruptive. 

The sentence range for a Class A felony is twenty to fifty years, with an advisory 

sentence of thirty years. Ind. Code § 35-50-2-4. The trial court sentenced Lockett to an 
16

aggregate sentence of forty-five years. Considering both the nature of the offenses and 

Lockett’s character, especially his criminal history, failed attempts at rehabilitation, and 

the fact that the offenses were committed while he was on parole, Lockett has not shown 

that his sentence is inappropriate. 

Conclusion

The trial court did not abuse its discretion when it denied Lockett’s motion for a 

mistrial due to juror misconduct. Lockett did not show that the juror whose eyes had 

been closed was actually inattentive during trial. The trial court also did not abuse its 

discretion when it denied his motion to dismiss under Criminal Rule 4(B). On the eve of 

trial, Lockett placed the court in the untenable position of hearing requests by Lockett 

and his counsel for his counsel to withdraw. Thus, the delay in the trial date is 

attributable to Lockett. Regarding Lockett’s sentence, the record does not support two 

identified aggravators. However, in light of the nature of the offenses and Lockett’s 

character, we cannot say that the forty-five-year aggregate sentence is inappropriate. 

We affirm. 

RILEY, J., and DARDEN, J., concur.