MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 26 2016, 9:47 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joseph W. Eddingfield Gregory F. Zoeller Wabash, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bryan N. Myers, April 26, 2016 Appellant-Defendant, Court of Appeals Case No. 17A04-1510-CR-1688 v. Appeal from the DeKalb Superior Court State of Indiana, The Honorable Monte L. Brown, Appellee-Plaintiff Judge Trial Court Cause Nos. 17D02-1406-FA-16, -17
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 1 of 7 Case Summary [1] In this interlocutory appeal, Bryan N. Myers challenges the trial court’s denial
of his motion for discharge of his four class A felony drug dealing charges
pursuant to Rule 4(C) of the Indiana Rules of Criminal Procedure. We reverse
and remand for an evidentiary hearing on his motion.
Facts and Procedural History [2] As best we can discern from the materials before us, the facts and procedural
history are as follows. On June 4, 2014, Myers was charged in DeKalb County
with a total of four class A felony drug dealing offenses in two separate two-
count causes, 17D02-1406-FA-16 (“Cause 16”) and 17D02-1406-FA-17
(“Cause 17”). 1 On June 5, 2014, the trial court made a finding of probable
cause and directed that arrest warrants be issued to the DeKalb County Sheriff.
On June 6, 2014, the trial court clerk issued warrants for Myers’s arrest under
both cause numbers. The warrants included Myers’s street address in Wabash,
which is in Wabash County. That same day, the warrants were received by the
Wabash County Sheriff’s Department. At some point, Myers was arrested by
the Wabash County Sheriff’s Department and incarcerated in the Wabash
County Jail.
1 In both causes, the State charged Myers with class A felony dealing in methamphetamine and class A felony dealing in a controlled substance (heroin). As such, we address them together unless otherwise indicated.
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 2 of 7 [3] On May 19, 2015, the DeKalb County prosecutor filed a motion for transport
order on the basis that it had come to her attention that Myers was currently
incarcerated in the Wabash County Jail. The trial court granted the motion to
transport, and Myers was transported to DeKalb County for his initial hearing
on June 8, 2015.
[4] On June 26, 2015, Myers filed a motion for discharge pursuant to Criminal
Rule 4(C), alleging that he had been in custody in Wabash County since June 6,
2014. On July 27, 2015, the State filed its objections to Myers’s motion,
claiming that (1) no evidence existed to suggest that Myers had ever been
arrested on the warrants issued in either cause; (2) no return on the warrants
was ever filed with the DeKalb Superior Court; (3) nothing in the chronological
case summary (“CCS”) indicated any return on the warrants, and they were
instead listed as active warrants; and (4) the DeKalb County prosecutor became
aware of Myers’s incarceration in Wabash County shortly before she filed the
motion for transport order on May 19, 2015. Appellant’s App. at 1, 6, 31. The
parties jointly requested a hearing on Myers’s motion for discharge. Id. at 30.
[5] On August 7, 2015, without a hearing, the trial court issued an order summarily
denying Myers’s motion for discharge. On August 28, 2015, Myers filed a
motion to certify the trial court’s order for interlocutory appeal, which the trial
court granted on September 21, 2015.
[6] On September 23, 2015, the State filed a motion to reconsider both the
discharge order (for failure to hold a hearing) and the certification order. The
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 3 of 7 trial court set the State’s motion for hearing on October 19, 2015. However, the
CCS indicates that on October 5, 2015, when the parties appeared for a pretrial
conference, the trial court also decided to hear the State’s motion to reconsider.
The CCS also indicates that the trial court vacated the hearing initially
scheduled for October 19, 2015. At the pretrial conference/hearing, Myers
submitted as Exhibit A arrest warrants from the DeKalb County Sheriff’s
Department indicating that the Wabash County Sheriff’s Department had
received them on June 6, 2014. The portion of the warrants indicating the date
of service on Myers and date of return with signature are left blank.
[7] On October 19, 2015, the trial court issued an order which included brief
findings that the arrest warrants were still pending and that no return of the
warrants was entered in the CCS. Id. at 155-56. The order does not include a
ruling on the State’s motion to reconsider the discharge order and is silent
regarding its certification order. The motions panel of this Court accepted
jurisdiction of this interlocutory appeal. 2
Discussion and Decision [8] Myers asserts that the trial court erred in denying his motion for discharge
pursuant to Criminal Rule 4(C), which states,
2 Myers’s notice of appeal includes a request to the DeKalb Superior Court clerk “to transcribe certify, and file … the following hearings of record, including exhibits: Defendant’s Exhibit ‘A’ in Cause [16], [and] Defendant’s Exhibit ‘A’ in Cause [17].”
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 4 of 7 No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
[9] Subject to the exceptions listed in Rule 4(C), the State has an affirmative duty to
bring the defendant to trial within one year of being charged or arrested. Wood
v. State, 999 N.E.2d 1054, 1060 (Ind. Ct. App. 2013), trans. denied (2014), cert.
denied (2014). The defendant is neither obligated to remind the court of the
State’s duty nor required to take affirmative steps to ensure that he is brought to
trial within the statutory time period. Id. When a defendant moves for
discharge, he bears the burden of showing that he has not been timely brought
to trial and that he is not responsible for the delay.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 26 2016, 9:47 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joseph W. Eddingfield Gregory F. Zoeller Wabash, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bryan N. Myers, April 26, 2016 Appellant-Defendant, Court of Appeals Case No. 17A04-1510-CR-1688 v. Appeal from the DeKalb Superior Court State of Indiana, The Honorable Monte L. Brown, Appellee-Plaintiff Judge Trial Court Cause Nos. 17D02-1406-FA-16, -17
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 1 of 7 Case Summary [1] In this interlocutory appeal, Bryan N. Myers challenges the trial court’s denial
of his motion for discharge of his four class A felony drug dealing charges
pursuant to Rule 4(C) of the Indiana Rules of Criminal Procedure. We reverse
and remand for an evidentiary hearing on his motion.
Facts and Procedural History [2] As best we can discern from the materials before us, the facts and procedural
history are as follows. On June 4, 2014, Myers was charged in DeKalb County
with a total of four class A felony drug dealing offenses in two separate two-
count causes, 17D02-1406-FA-16 (“Cause 16”) and 17D02-1406-FA-17
(“Cause 17”). 1 On June 5, 2014, the trial court made a finding of probable
cause and directed that arrest warrants be issued to the DeKalb County Sheriff.
On June 6, 2014, the trial court clerk issued warrants for Myers’s arrest under
both cause numbers. The warrants included Myers’s street address in Wabash,
which is in Wabash County. That same day, the warrants were received by the
Wabash County Sheriff’s Department. At some point, Myers was arrested by
the Wabash County Sheriff’s Department and incarcerated in the Wabash
County Jail.
1 In both causes, the State charged Myers with class A felony dealing in methamphetamine and class A felony dealing in a controlled substance (heroin). As such, we address them together unless otherwise indicated.
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 2 of 7 [3] On May 19, 2015, the DeKalb County prosecutor filed a motion for transport
order on the basis that it had come to her attention that Myers was currently
incarcerated in the Wabash County Jail. The trial court granted the motion to
transport, and Myers was transported to DeKalb County for his initial hearing
on June 8, 2015.
[4] On June 26, 2015, Myers filed a motion for discharge pursuant to Criminal
Rule 4(C), alleging that he had been in custody in Wabash County since June 6,
2014. On July 27, 2015, the State filed its objections to Myers’s motion,
claiming that (1) no evidence existed to suggest that Myers had ever been
arrested on the warrants issued in either cause; (2) no return on the warrants
was ever filed with the DeKalb Superior Court; (3) nothing in the chronological
case summary (“CCS”) indicated any return on the warrants, and they were
instead listed as active warrants; and (4) the DeKalb County prosecutor became
aware of Myers’s incarceration in Wabash County shortly before she filed the
motion for transport order on May 19, 2015. Appellant’s App. at 1, 6, 31. The
parties jointly requested a hearing on Myers’s motion for discharge. Id. at 30.
[5] On August 7, 2015, without a hearing, the trial court issued an order summarily
denying Myers’s motion for discharge. On August 28, 2015, Myers filed a
motion to certify the trial court’s order for interlocutory appeal, which the trial
court granted on September 21, 2015.
[6] On September 23, 2015, the State filed a motion to reconsider both the
discharge order (for failure to hold a hearing) and the certification order. The
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 3 of 7 trial court set the State’s motion for hearing on October 19, 2015. However, the
CCS indicates that on October 5, 2015, when the parties appeared for a pretrial
conference, the trial court also decided to hear the State’s motion to reconsider.
The CCS also indicates that the trial court vacated the hearing initially
scheduled for October 19, 2015. At the pretrial conference/hearing, Myers
submitted as Exhibit A arrest warrants from the DeKalb County Sheriff’s
Department indicating that the Wabash County Sheriff’s Department had
received them on June 6, 2014. The portion of the warrants indicating the date
of service on Myers and date of return with signature are left blank.
[7] On October 19, 2015, the trial court issued an order which included brief
findings that the arrest warrants were still pending and that no return of the
warrants was entered in the CCS. Id. at 155-56. The order does not include a
ruling on the State’s motion to reconsider the discharge order and is silent
regarding its certification order. The motions panel of this Court accepted
jurisdiction of this interlocutory appeal. 2
Discussion and Decision [8] Myers asserts that the trial court erred in denying his motion for discharge
pursuant to Criminal Rule 4(C), which states,
2 Myers’s notice of appeal includes a request to the DeKalb Superior Court clerk “to transcribe certify, and file … the following hearings of record, including exhibits: Defendant’s Exhibit ‘A’ in Cause [16], [and] Defendant’s Exhibit ‘A’ in Cause [17].”
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 4 of 7 No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
[9] Subject to the exceptions listed in Rule 4(C), the State has an affirmative duty to
bring the defendant to trial within one year of being charged or arrested. Wood
v. State, 999 N.E.2d 1054, 1060 (Ind. Ct. App. 2013), trans. denied (2014), cert.
denied (2014). The defendant is neither obligated to remind the court of the
State’s duty nor required to take affirmative steps to ensure that he is brought to
trial within the statutory time period. Id. When a defendant moves for
discharge, he bears the burden of showing that he has not been timely brought
to trial and that he is not responsible for the delay. Id.
[10] In reviewing a challenge to a trial court’s ruling on a Rule 4(C) motion for
discharge, the standard of review depends upon whether the case involves
application of the law to undisputed facts or the trial court’s issuance of findings
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 5 of 7 resolving disputed facts. Austin v. State, 997 N.E.2d 1027, 1039-40 (Ind. 2013).
We review the former cases de novo and the latter cases using a clearly
erroneous standard. Id.
[11] Unfortunately, this case does not fall neatly into either category. The parties
appear to dispute the fact of whether and when the warrants were served and
Myers was placed in custody. However, the record is silent on this important
factual issue. In this vein, we note the following: (1) the order being appealed
by Myers is the trial court’s summary order denying discharge; (2) the appealed
order contains no findings and was issued without an evidentiary hearing
despite both parties’ requests for hearing; 3 (3) when the trial court eventually
conducted a hearing, it was on the State’s motion to reconsider and was rolled
into the pretrial conference; 4 (4) the only order including findings is the order on
the State’s motion to reconsider, and even at that, the findings are not
comprehensive and reference the incomplete warrants; (5) the order on the
State’s motion to reconsider does not include an actual ruling on the motion;
3 Criminal Rule 4(C) is silent concerning a defendant’s right to a hearing before the trial court rules on his motion for discharge. Nevertheless, because the defendant moving for discharge bears the burden to show that he has not been timely brought to trial and that he is not responsible for the delay, Wood, 999 N.E.2d at 1060, we believe that a hearing typically should be granted upon request before the trial court rules on the motion. Here, both parties requested a hearing. 4 We have before us no transcript from that conference/hearing, nor should we, as it occurred after the trial court denied Myers’s discharge motion. Curiously, however, exhibits from both causes were requested and included in the materials before us even though those exhibits were apparently admitted during the hearing on the State’s motion to reconsider, which postdated the appealed order denying discharge.
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 6 of 7 and (6) the State did not seek an interlocutory appeal of the order implicitly
denying its motion to reconsider.
[12] Simply put, the salient information included in the materials before us consists
of incomplete warrants and a CCS and trial court orders that shed no light on a
critical and seemingly easily ascertainable fact: the date on which Myers was
actually taken into custody in Wabash County. The parties requested an
evidentiary hearing on Myers’s motion for discharge but did not receive any
hearing until after the order was issued, when the State requested
reconsideration for that very reason. We cannot conduct a full and fair review
on the materials submitted. As such, we reverse the denial of defendant’s
motion for discharge and remand for an evidentiary hearing on Myers’s motion
for discharge pursuant to an order to be issued contemporaneously with this
memorandum decision. We retain jurisdiction of this appeal pursuant to
Indiana Appellate Rule 37(B).
[13] Reversed and remanded.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016 Page 7 of 7