ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES R. LISHER STEVE CARTER
Shelbyville, Indiana Attorney General of Indiana
NANDITA G. SHEPHERD
Deputy Attorney General
COURT OF APPEALS OF INDIANA
MATTHEW J. PHARES, )
vs. ) No. 73A01-0302-CR-063
STATE OF INDIANA, )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Russell J. Sanders, III, Judge
Cause No. 73D02-0103-CM-329
September 23, 2003
OPINION FOR PUBLICATION
Appellant-defendant Matthew J. Phares appeals his conviction for Battery,
See footnote a class A misdemeanor.
Specifically, Phares contends that the conviction may not stand because the juvenile
court should have exercised jurisdiction in this case, he was prejudiced due to
the trial courts delay in entering judgment and imposing the sentence and he
received the ineffective assistance of counsel. Concluding that Phares was properly tried
in adult court, that he was not prejudiced by the trial courts delay
in entering a judgment of conviction and imposing sentence and that he failed
to demonstrate prejudice by his trial counsels failure to have the case withdrawn
from the trial court, we affirm.
On March 20, 2001, the State filed an information charging seventeen-year-old Phares with
battery. Phares, who was incarcerated at the Shelby County Jail on an
unrelated charge, allegedly struck a fellow inmate. The next day, Phares appeared
for his initial hearing and the trial court noted that it had jurisdiction
over the case because Phares had previously been waived to adult court on
another charge. A public defender was appointed to represent Phares, and no
objection was made regarding the trial courts exercise of jurisdiction.
A bench trial commenced on September 7, 2001, and the trial court heard
additional evidence on October 12. At the conclusion of the trial, the
judge took the matter under advisement, and a finding of guilty was ultimately
pronounced nearly one year later on August 7, 2002. That same day,
Phares was sentenced to thirty days in jail, and that term was ordered
to run consecutive to the sentence he was serving on the unrelated charge.
He now appeals.
DISCUSSION AND DECISION
Phares first contends that his conviction for battery may not stand because the
trial court lacked both personal and subject matter jurisdiction over this case. Specifically,
Phares argues that because he was only seventeen years old at the time
of the offense, the battery case should have been heard in juvenile court.
In resolving this issue, we note that when jurisdictional facts are not in
dispute, the question of whether a lower court had jurisdiction is reviewed de
novo. Fuller v. State, 752 N.E.2d 235, 236 (Ind. Ct. App. 2001).
That is, no deference is afforded the trial courts conclusion because appellate
courts independently, and without the slightest deference to the trial courts determinations, evaluate
those issues they deem to be questions of law. Id. Additionally,
our juvenile courts are courts of limited jurisdiction and have subject matter jurisdiction
only over those classes of cases that are authorized by statute. Specifically,
the jurisdiction of a juvenile court must be invoked properly by establishing the
statutory jurisdictional prerequisites. Matter of Lemond, 413 N.E.2d 228, 246 (Ind. 1980).
Although Phares argues that the trial courts previous waiver to adult court is
insufficient for that court to assert jurisdiction in this case, our review of
the relevant statutory provisions, Indiana Code sections 31-30-1 and 31-30-2, reveals that every
provision governing juvenile court jurisdiction refers to the courts jurisdiction over a child
under specified circumstances. Similarly, the waiver provisions set forth in Indiana Code
section 31-30-3 require the juvenile court to consider the specified circumstances regarding the
child and whether the child should remain within the juvenile system. Thus,
it is apparent to us that the waiver by the juvenile court is
over the defendant and not merely the offenses that were alleged in the
motion for waiver.
That said, we recognize that a divided panel of this court recently determined
that a trial court does not acquire jurisdiction over every allegation pending against
a juvenile after a waiver to adult court. Griffith v. State, 791
N.E.2d 235, 240-241 (Ind. Ct. App. 2003) (holding that while the juvenile court
originally waived jurisdiction of all six charges lodged against the defendant, only three
of the alleged acts committed by the defendant were eligible to be waived
to the trial court) (Baker, J. dissenting). We expressly disapprove of the
reasoning espoused by the majority in Griffith and note that the purpose of
our juvenile courts is to provide for the rehabilitation of youthful offenders within
the juvenile justice system. Ind. Code § 31-10-2-1(5). More specifically, it
is our view that when a child has been waived from a juvenile
courts jurisdiction based on the courts determination that the child is beyond rehabilitation
within that system, the rehabilitative purpose of the juvenile courts is not furthered
by requiring a juvenile court to consider repetitive motions to waive the child
for subsequent offenses or to continue to hear cases within the juvenile justice
system. Quite simply, the contrary view results in a cookie cutter approach
and invites piecemeal prosecution that disregards the juvenile courts superior position to evaluate
the specific circumstances of the case. See id. at 242 (Baker,
J. dissenting). Moreover, taxpayer dollars are wasted and further strain is placed
upon our judicial resources. See id. at 243.
In this case, because the juvenile court had previously waived jurisdiction over Phares,
we conclude that the trial court had properly exercised jurisdiction to try Phares
on the battery charge. Thus, there was no error with respect to
II. Delay in Entry of Judgment and Sentence
Phares next contends that his battery conviction must be reversed as the trial
court lost jurisdiction to enter a judgment of conviction and impose sentence because
of the lengthy delay between the trial, judgment and the sentencing. Specifically,
Phares argues that such a lengthy delay deprived him of the rights to
effectively appeal his conviction, and that the delay violated his right to a
speedy trial. Appellants Br. p. 10, 12.
We first note that in accordance with Indiana Trial Rule 53.2, a trial
court is permitted to take a matter under advisement for ninety days before
issuing a final ruling. See Williams v. State, 716 N.E.2d 897, 900
(Ind. 1999). If the matter has not been ruled upon, a
party may file a request for a ruling or lazy judge motion pursuant
to T.R. 53.2. See id. at 899-900. Thereafter, if the judge fails
to provide a ruling by the end of the ninety-day time limit, the
proper remedy is for the complaining party to seek a writ of mandate
from our supreme court to compel the clerk to provide notice and disqualify
the judge. Id. If the party fails to follow this procedure
and permits the case to proceed to a final judgment, the party is
estopped from complaining that the original trial judge maintained jurisdiction over the case.
Here, there is nothing in the record indicating that Phares filed a lazy
judge motion requesting the trial court to enter judgment or impose sentence.
Similarly, he never sought a writ of mandate to have the trial judge
disqualified after the ninety-day time limit had passed. Rather, Phares waited until
this appealafter an adverse ruling had been entered against himbefore complaining of the
delay. As a result, he is estopped from claiming that the original
trial judge maintained jurisdiction over the case. See id.
We also reject Pharess second contention that the trial courts delay violated his
right to a speedy trial. The record reflects that Phares was brought
to trial within one year after the charge had been filed on March
20, 2001. Thus, the requirements set forth in Criminal Rule 4(C) were
satisfied. See State v. Erlewin, 755 N.E.2d 700, 707 (Ind. Ct. App.
2001) (observing that the unreasonable delay where trial judge took the matter under
advisement for 169 days after the close of the evidence before entering judgment
was not the fault of the State). Moreover, a judges refusal to
rule is not a delay caused by the State or the defendant.
Rather, this court has deemed such circumstance as an exigent circumstance that serves
to toll the time period under Criminal Rule 4(C). Id. Accordingly,
Pharess argument that his right to a speedy trial was violated must fail.
III. Ineffective Assistance of Counsel
Phares next contends that he received ineffective assistance of counsel. Specifically, Phares
contends that his trial counsel was ineffective for the following reasons: (1)
he failed to object to the trial courts exercise of jurisdiction over the
case; (2) an objection was not made as to Pharess status as a
person subject to the adult jurisdiction of the court; and (3) harm and
prejudice occurred as a result of trial counsels failure to file a lazy
judge motion under Trial Rule 53.2.
In addressing Pharess claims, we note that pursuant to Strickland v. Washington, 466
U.S. 668, (1984), a claim of ineffective assistance of counsel requires a showing
that: (1) counsels performance was deficient by falling below an objective standard
of reasonableness based on prevailing professional norms; and (2) counsels performance prejudiced the
defendant to the extent that there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been different.
See French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
Failure to satisfy either prong will cause the claim to fail. French,
778 N.E.2d at 824. Indeed, most ineffective assistance of counsel claims can
be resolved by a prejudice inquiry alone. Id.
Turning to the merits of Pharess claims, we have determined that the trial
court properly exercised both subject matter and personal jurisdiction in this case.
Thus, Pharess counsel cannot be deemed ineffective for failing to make any objection
on the basis of jurisdiction.
With respect to counsels failure to file a lazy judge motion in an
effort to have the case ruled upon by the trial court at an
earlier juncture, we note that Phares has failed to demonstrate that counsels inaction
prejudiced him. Specifically, there is no showing that Pharess status would have
changed in the event of an earlier ruling because he was serving the
sentence under the former cause number while awaiting judgment and sentencing in the
instant case. In fact, Phares acknowledged at the sentencing hearing that his
projected release date on the prior charge was February 10, 2003. Tr.
p. 49. Therefore, Phares has failed to show any prejudice by trial
counsels inaction, and we conclude that he was not afforded the ineffective assistance
In light of our disposition of the issues set forth above, we conclude
that the trial court properly exercised jurisdiction in this case and observe that
Phares suffered no prejudice from the trial courts delay in entering the judgment
of conviction and imposing the sentence. Finally, we conclude that Phares did
not receive the ineffective assistance of counsel.
BROOK, C.J., and SHARPNACK, J., concur.
Ind. Code § 35-42-2-1.