FILED Dec 20 2023, 9:36 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Theodore E. Rokita Fishers, Indiana Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dallas Dale Hoback, December 20, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-411 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Bradley B. Jacobs, Appellee-Plaintiff. Judge Trial Court Cause No. 10C02-1803-F6-540
Opinion by Judge Bailey Judge May concurs. Judge Felix dissents with separate opinion.
Bailey, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 1 of 18 Case Summary [1] Dallas Dale Hoback appeals his convictions and sentence, following a jury trial.
He raises several issues on appeal, but we address only the dispositive issue of
whether the trial court erred when it denied his Criminal Rule 4(C) motion for
discharge.
[2] We reverse.
Facts and Procedural History [3] On March 29, 2018, the State charged Hoback with Level 6 felony possession
of methamphetamine,1 Level 6 felony possession of a narcotic drug, 2 and Class
C misdemeanor possession of paraphernalia.3 The police arrested Hoback for
those charges on April 19, 2018.
[4] At a status conference on January 2, 2019, Hoback informed the court that plea
negotiations were occurring and that he thought the case would get resolved,
but he also asked for a trial date. On January 23, 2019, the trial court scheduled
a jury trial for April 16, 2019. At a pretrial conference on January 24, 2019, a
plea offer was tendered. At a status conference on March 20, 2019, additional
dates were requested and the minute entry sheet, containing the signature of
1 Ind. Code § 35-48-4-6.1. 2 I.C. § 35-48-4-6. 3 I.C. § 35-48-4-8.3.
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 2 of 18 Hoback’s counsel, noted a new status conference date of June 5, 2019. On
April 10, 2019, the CCS noted both the new status conference date and that the
jury trial date of April 16 was cancelled. The record does not disclose on whose
motion the trial date was cancelled or the reason therefor. See App. v. II at 7
(stating, “Reason: Other”).
[5] The case was subsequently continued multiple times due to the non-appearance
of defense counsel and Hoback’s requests for new dates. A plea agreement was
filed on December 20, 2019. The plea hearing was continued multiple times at
Hoback’s request until he ultimately withdrew from the plea on October 1,
2020. After a series of events including defense continuances, the entry of
another plea agreement and another withdrawal of the plea, court congestion
findings, and public health emergency orders, on April 13, 2022, the trial court
set the jury trial for July 12, 2022.
[6] The State subsequently filed two motions for continuance—one on July 5,
2022, and the other on July 21, 2022—both due to the unavailability of an
“essential witness for the State.” App. v. II at 155, 167. The trial court granted
each motion and reset the jury trial for August 2, 2022, and August 23, 2022,
respectively. Hoback did not object to either of the State’s motions for
continuance, the trial court’s decisions to grant them, or the dates on which the
trials were reset. On August 15, 2022, Hoback filed a motion for discharge,
which the trial court denied following an August 16 final motions hearing.
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 3 of 18 [7] Following the trial, the jury found Hoback guilty as charged. The trial court
subsequently sentenced Hoback to “692 days fixed term of imprisonment” on
count 1, “692 days fixed term of imprisonment” on count 2, and “60 days fixed
term of imprisonment” on count 3. Id. The written order stated, “Counts to
run concurrently[,”] and “JTC[4] 2/14/2022 – 1/26/2023 346 actual days.”
Appealed Order. Hoback now appeals his convictions and sentence.
Discussion and Decision [8] Hoback appeals the trial court’s denial of his Indiana Criminal Rule 4(C)
motion for discharge for failure to give him a timely trial—sometimes referred
to as a “speedy trial” claim. In reviewing speedy trial rule claims, we review
questions of law de novo and factual findings under the clearly erroneous
standard. State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App. 2019), trans.
denied.
Waiver [9] As an initial matter, we must address the State’s assertion that Hoback waived
his Rule 4(C) claim by failing to adequately brief the issue. “When a defendant
files a motion to discharge, it is the defendant’s burden to demonstrate that the
one-year time frame has been exceeded and that he is not responsible for the
delay.” Ratliff v. State, 132 N.E.3d 41, 43 (Ind. Ct. App. 2019) (quotations and
4 The court did not define the acronym “JTC,” but, from context, it appears to stand for “jail time credit.”
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 4 of 18 citation omitted), trans. denied. Moreover, Indiana Appellate Rule 46(A)(6)(a)
requires that the statement of facts in an Appellant’s brief must “describe the
facts relevant to the issues presented for review” and must “be supported by
page references to the Record on Appeal or Appendix.” When a party refers to
facts without citation to the record in support, “we need not consider those
facts.” Reed v. City of Evansville, 956 N.E.2d 684, 688 n.1 (Ind. Ct. App. 2011),
trans. denied.
[10] Similarly, Appellate Rule 46(A)(8)(a) requires that “[e]ach contention [of the
argument] must be supported by citations to the authorities, statutes, and the
Appendix or parts of the Record on Appeal.” When an appellant provides no
citation to legal authority supporting his contentions, those contentions are
waived. E.g., Shields v. Town of Perrysville, 136 N.E.3d 309, 312 n.2 (Ind. Ct.
App. 2019). Thus, under our Appellate Rules, “[i]t is not sufficient for the
argument section that an appellant simply recites facts and makes conclusory
statements without analysis or authoritative support.” Kishpaugh v. Odegard, 17
N.E.3d 363, 373 n.3 (Ind. Ct. App. 2014). This rule “prevents the court from
becoming an advocate when it is forced to search the entire record for evidence
in support of [a party’s] broad statements.” Lane Alan Schrader Trust v. Gilbert,
974 N.E.2d 516, 521 (Ind. Ct. App. 2012) (citing Keller v. State, 549 N.E.2d 372,
373 (Ind. 1990)).
[11] Here, the one-year time limit per Rule 4(C) began to run on April 19, 2018, the
date Hoback was arrested. Thus, it was Hoback’s burden to show that he was
not brought to trial within the following year and that any delay was not caused
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 5 of 18 by him, congestion of the court’s calendar, or an emergency. See, e.g., Ratliff,
132 N.E.3d at 43. Hoback fails to point to any facts or evidence regarding the
relevant one-year time period—i.e., from April 19, 2018, to April 19, 2019.5 He
does not discuss any delays that took place during that time period and to
whom such delays are attributable. Therefore, we could find Hoback’s
discharge argument waived under Appellate Rule 46(A), as the State urges us to
do.
[12] However, it is well-established that we prefer to address claims on the merits
where possible, “instead of on procedural grounds like waiver.” Pierce v. State,
29 N.E.3d 1258, 1267 (Ind. 2015) (choosing to address the merits of the
appellant’s claims despite Appellate Rule 46 inadequacies in briefing). “Thus,
unless we find a party’s non-compliance with … [Appellate Rule 46] sufficiently
substantial to impede our consideration of the issue raised, we will address the
merits of his claim.” Id. (quotations and citations omitted). This is especially
true for claims that have a constitutional dimension, as the speedy trial rule
does. See Peele v. State, 136 N.E.3d 1155, 1158 (Ind. Ct. App. 2019) (citing U.S.
Const. amend. VI; Ind. Const. art. 1, § 12). Here, we are able to, and chose to,
address the merits of Hoback’s Rule 4(C) claim despite the inadequacies of his
briefs.
5 We note that both parties discuss at length delays that occurred after the April 19, 2019, time limit. However, that is not the relevant time-period. To determine whether the one-year deadline for a trial was extended, we must look to any delays that occurred during the one-year period (as extended, if applicable) and to whom those delays are attributable. See Crim. R. 4(C), (F).
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 6 of 18 Discharge under Criminal Rule 4(C) [13] “The right of an accused to a speedy trial is guaranteed by the United States and
Indiana Constitutions. U.S. Const. amend. VI; Ind. Const. art. 1, § 12.” Peele,
136 N.E.3d at 1158. Indiana Criminal Rule 4 implements those rights, and
subsection (C) generally requires that a criminal defendant be brought to trial
within one year from the date the criminal charges were filed or the date he was
arrested, whichever is later. Id.; Ind. Crim. Rule 4(C). Thus, Criminal Rule 4
“places an affirmative duty on the State to bring a defendant to trial within one
year.” Gibson v. State, 910 N.E.2d 263, 266 (Ind. Ct. App. 2009).
[14] Furthermore, a “defendant has no obligation to remind the trial court of the
State’s duty, nor is he required to take any affirmative action to see that he is
brought to trial within the statutory time period.” State v. Black, 947 N.E.2d
503, 507 (Ind. Ct. App. 2011). The defendant may waive his “right to be
brought to trial within one year by failing to raise a timely objection if the trial
court, acting during the one-year period, schedules the trial beyond the limit.”
Wood v. State, 999 N.E.2d 1054, 1061 (Ind. Ct. App. 2013), trans. denied.
However, the defendant “has no duty to object to the setting of a belated trial
date if the setting occurs after the year has expired[,]” id., because under those
circumstances “the court cannot reset the trial within the time allotted by
Criminal Rule 4(C)[,]” Young v. State, 765 N.E.2d 673, 679 (Ind. Ct. App.
2002). “In such an instance, the defendant may simply move for discharge after
the expiration of the time limitation of Criminal Rule 4 without making an
objection to the scheduled trial date.” Id.
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 7 of 18 [15] However, when a continuance is had on the defendant’s motion or delay is
caused by the defendant’s acts, congestion of the court, or an emergency, the
time limitation is extended by the amount of time resulting from such delay(s).
Crim. R. 4(C), (F). But we “may not attribute any delays in proceeding to trial
to the defendant where the record is void regarding the reason for the delay.”
Young, 765 N.E.2d at 678 (citing Morrison v. State, 555 N.E.2d 458, 461 (Ind.
1990) (overruled on other grounds by Cook v. State, 810 N.E.2d 1064, 1066 (Ind.
2004)). When “docket entries are absent or missing regarding the reason for a
delay, the delay is not chargeable to the defendant.” Id. As a panel of this
Court noted in Staples v. State:
A trial court speaks through its docket which makes it necessary for the trial court to make a docket entry as to why a defendant’s trial cannot be conducted on the date set…. Furthermore, if the trial court neglected to make a docket entry as to why the defendant could not be tried on the date set, then the State should have requested the trial court to make a docket entry. However the defendant should not be charged with this period of delay because the trial court failed to make a docket entry. A defendant only has a duty to object if the trial court sets a trial date outside of the one-year period.
553 N.E.2d 141, 143 (Ind. Ct. App. 1990) (citations omitted), trans. denied.
[16] Here, it is clear from the record that Hoback was not brought to trial before the
expiration of the one-year time limit, i.e., April 19, 2019. However, the trial
court’s record regarding why the trial did not occur within the one-year time
period is woefully inadequate. On March 20, 2019, a minute entry signed by
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 8 of 18 both Hoback and the State reads: “New dates St: 6-5-19[.]” App. v. II at 57.
The corresponding chronological case summary (“CCS”) entry states: “Status
Conference held. Additional dates requested.” Id. at 7. This entry does not tell
us which party requested the new dates or why the requests for new dates were
made and/or granted. In an entry dated April 10, 2019, the CCS states: “Jury
Trial scheduled for 4/16/2019 at 9:00 a.m. was cancelled. Reason: Other.[,]”
and it notes, “Status Conference scheduled for 06/05/2019 at 9:00 a.m.” Id.
“Other” is an inadequate description to explain why a jury trial is cancelled, as
it does not tell us whether Hoback or the State requested that the trial be
continued or whether the trial court continued the trial sua sponte.
[17] We also note that this entry cancelling the jury trial did not reset Hoback’s trial
date and thereby trigger his obligation to object on Rule 4(C) grounds if the new
date was beyond the time limit. Although the trial court did, on that date, set a
status hearing for a date beyond the time limit, neither Rule 4(C) nor relevant
case law indicates that there is a requirement to object to the untimely setting of
anything other than a trial; thus, Hoback did not waive his discharge claim by
failing to object to the order setting a status conference outside the one-year
time period.
[18] Given the deficient trial court record and the State’s failure to request that the
trial court make adequate docket entries, we cannot attribute any of the delays
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 9 of 18 during the relevant one-year time period to Hoback.6 See Young, 765 N.E.2d at
678; Staples, 553 N.E.2d at 143. That is, there is no evidence that the one-year
time limit imposed by Criminal Rule 4(C) was extended by Hoback’s requests
or other actions, yet the State failed to bring Hoback to trial within that one
year period. Therefore, the trial court erred when it denied Hoback’s Rule 4(C)
motion for discharge.7
[19] Reversed.
[20] May, J., concurs
Felix, J., dissents with separate opinion.
6 The dissent infers Hoback acquiesced to a delay in his trial during the Rule 4(C) period by agreeing to a status conference outside the period, with the necessary implication being that the trial would also have to occur outside the Rule 4(C) period. The dissent asserts its position is required by our Indiana Supreme Court’s reasoning in Cook v. State, 810 N.E.2d 1064 (Ind. 2004). In Cook, our Supreme Court decreed that delays caused by the defendant can extend the Rule 4(C) deadline for bringing a defendant to trial even if the trial court has not set a trial date. Id. at 1065. The Court held that delays caused by the unavailability of the defendant’s counsel extended the Rule 4(C) period for bringing the defendant to trial. Id. at 1068. However, Cook did not overrule our holding in Staples that it is the responsibility of the trial court and the State to ensure that the chronological case summary conveys why a defendant’s trial cannot be held on the date set and that the defendant should not be charged with the delay when the trial court failed to make a docket entry. 553 N.E.2d at 143. In Cook, the Court reasserted that its holding did not affect “the proposition that a defendant’s agreement to a continuance sought by the State is not chargeable to the defendant and does not extend the time period of Crim. R. 4(C).” 810 N.E.2d at 1067 n.3. Due to the inadequacy of the trial court’s record, we cannot confidently say Hoback caused the cancellation of the first trial date. 7 Given our holding reversing on the issue of discharge, we do not address the other issues Hoback raises on appeal.
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 10 of 18 Felix, Judge, dissenting.
[21] I respectfully dissent for two reasons. Primarily, I believe Hoback acquiesced in,
if not requested, the delay that causes my colleagues to find a violation of
Indiana Criminal Rule 4(C) (“C.R. 4(C)”). Before I get to the merits of
Hoback’s C.R. 4(C) claim, however, I also disagree with my colleagues
regarding whether Hoback waived this issue for appeal. Hoback’s failure to
comply with Indiana Appellate Rule 46 substantially impedes review of his
C.R. 4(C) claim.
1. Waiver: Hoback’s failure to cite to the record and failure to proffer a cogent argument substantially impedes appellate review.
[22] The majority chooses to address the merits of this issue despite the recognized
inadequacies of Hoback’s briefs. I first observe that the majority strongly
implies that it is choosing to address the merits of Hoback’s C.R. 4(C) claim
because the majority believes that claim has “a constitutional dimension.”
Ante, at ¶ 12. The Indiana Supreme Court has clearly and repeatedly stated that
C.R. 4 “does not cover every aspect of its broader constitutional counterparts,”
id. (citing Cundiff v. State, 967 N.E.2d 1026, 1027 n.2 (Ind. 2012)), so “our
review of a Rule 4 challenge is separate from a claimed constitutional
violation,” id. (citing S.L., 16 N.E.3d at 958); see also Austin v. State, 997 N.E.2d
1027 n.7 (Ind. 2013) (citing Cundiff v. State, 967 N.E.2d 1026, 1027 n.2 (Ind.
2012)). Hoback challenges the trial court’s denial of his motion for discharge
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 11 of 18 under only C.R. 4(C); he does not challenge it under either the United States
Constitution or the Indiana Constitution nor does he analyze his speedy trial
claim under the relevant provisions of those constitutions. Consequently, I do
not believe Hoback’s C.R. 4(C) claim is grounded in a dimension of either the
Indiana or the United States Constitutions. It is purely a claimed rule violation
worthy of no exceptions to a waiver analysis.
[23] The Indiana Supreme Court has made clear that if a party fails to make or
develop an argument on appeal, that argument is waived. Isom v. State, 170
N.E.3d 623, 634, 637–39, 641, 642, 645, 646, 648, 649, 651, 653, 656 (Ind.
2021) (holding approximately 21 of defendant’s arguments waived for failure to
provide cogent argument in violation of Appellate Rule 46(A)(8)(a)); Owen v.
State, 210 N.E.3d 256, 264 (Ind. 2023). This includes any claim that the
appellant fails to raise in the opening brief. Davidson v. State, 211 N.E.3d 914,
925 (Ind. 2023) (citing Monroe Guar. Ins. v. Magwerks Corp., 829 N.E.2d 968, 977
(Ind. 2005)). Accordingly, if a party’s failure to comply with the Appellate
Rules is “sufficiently substantial to impede our consideration of the issue
raised,” we will not address the merits of that issue. Pierce v. State, 29 N.E.3d
1258, 1267 (Ind. 2015) (quoting Guardiola v. State, 375 N.E.2d 1105, 1105 (Ind.
1978)).
[24] “When a defendant files a motion to discharge, it is the defendant’s burden to
demonstrate that the one-year time frame has been exceeded and that he is not
responsible for the delay.” Ratliff v. State, 132 N.E.3d 41, 43 (Ind. Ct. App.
2019) (citing Here, Hoback’s C.R. 4(C) one-year period began on April 19,
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 12 of 18 2018—the date of his arrest—and concluded, absent any delays, on April 19,
2019. See ante, at ¶ 11. To determine whether Hoback’s original one-year
period was extended, we must look to any delays that occurred during this
period and determine to whom those delays are attributable. Id. at ¶ 11 n.5
(citing Crim. R. 4(C), (F)).
[25] We know that Hoback was not brought to trial until August 23, 2022. However,
Hoback failed to include any facts in his Statement of the Facts regarding any
delays that occurred before April 19, 2019. This is a violation of Appellate Rule
46(A)(6)8. In his opening brief’s Argument section, Hoback notes only that his
April 16, 2019, trial was cancelled on April 10, 2019. Without more, this is a
violation of Appellate Rule 46(A)(8)(b)9. Consequently, Hoback also failed to
provide cogent argument in his opening brief regarding why the delay resulting
from the cancellation of his April 16 trial date was not attributable to him, 10
which is a violation of Appellate Rule 46(A)(8)(a)11.
8 The Statement of Facts “shall describe the facts relevant to the issues presented for review.” App. R. 46(A)(6). 9 “[T]he argument must include a brief statement of the procedural and substantive facts necessary for consideration of the issues presented on appeal, including a statement of how the issues relevant to the appeal were raised and resolved by any Administrative Agency or trial court.” App. R. 46(A)(6)(a). 10 Hoback’s incorrect application in his opening brief of C.R. 4(C)—namely that his C.R. 4(C) one-year period began on the date he was charged instead of the date he was arrested—likely led to him not providing cogent argument concerning the delay after his April 16 trial was cancelled. Nevertheless, it is not the job of this court to rectify Hoback’s errors, especially when he had the opportunity do so in his reply brief and still chose not to. 11 “The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.” App. R. 46(A)(8)(a).
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 13 of 18 [26] In addition to Hoback’s multiple failures to comply with Appellate Rule 46 in
his opening brief, Hoback also failed to provide cogent argument on multiple
issues in his reply brief, including whether the delay until June 5, 2019, was
attributable to the State. Hoback’s significant noncompliance with Appellate
Rule 46, especially Appellate Rule 46(A)(8)(a), substantially impedes a review
of his C.R. 4(C) claim. I would therefore hold that Hoback waived his C.R.
4(C) claim on appeal and refuse to address the merits of that claim.
2. Merits: Hoback extended his C.R. 4(C) one-year period by acquiescing in or requesting the cancellation of his trial date and the setting of a status conference outside the initial one-year period.
[27] As stated previously, my dissent grows from my belief that there is no C.R. 4
violation. Criminal Rule 4(C) states in relevant part:
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 . . . .
[28] If during the C.R. 4(C) one-year period the trial court sets the defendant’s trial
date outside that period, the defendant must “offer a timely objection” to those
trial dates; if the defendant fails to make such an objection under these
circumstances, then he has waived his rights under C.R. 4(C). Battering v. State,
150 N.E.3d 597, 601 (Ind. 2020) (quoting Pelley v. State, 901 N.E.2d 494, 498
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 14 of 18 (Ind. 2009), declined to follow on other grounds by Austin v. State, 997 N.E.2d 1027,
1039 (Ind. 2013)). As noted by the rule, a defendant can extend the C.R. 4(C)
one-year period “by seeking or acquiescing in delay resulting in a later trial
date.” Id. (quoting Pelley, 901 N.E.2d at 499).
[29] When a defendant delays a task which must be completed before trial—such as
a status conference—the defendant can and often does delay the setting of the
case for trial and thereby the trial itself. Cook v. State, 810 N.E.2d 1064, 1068
(Ind. 2004) (quoting State ex rel. O’Donnell v. Cass Superior Court, 468 N.E.2d 209,
211 (Ind. 1984) (DeBruler, J., dissenting)). Recognizing this reality, the Indiana
Supreme Court has repeatedly held that “delays caused by action taken by the
defendant are chargeable to the defendant regardless of whether a trial date has been
set.” State v. Larkin, 100 N.E.3d 700, 705 (Ind. 2018) (emphasis added) (quoting
Cook, 810 N.E.2d at 1067).
[30] When Hoback’s counsel signed the minute entry sheet setting another status
conference beyond the one-year C.R. 4 period, Hoback not only acquiesced but
also, arguably, agreed to a delay in his trial. See Cook, 810 N.E.2d at 1068
(citing Andrews v. State, 441 N.E.2d 194, 199 (Ind. 1982); Epps v. State, 192
N.E.2d 459, 463–64 (Ind. 1963)) (holding that the actions of defendant’s
counsel are attributable to defendant for purposes of C.R. 4). A defendant
cannot reasonably assert that trial was somehow going to occur before the next
scheduled status conference. Here, Hoback either acquiesced to or requested
the setting of a status conference (by his counsel signing the minute entry sheet
requesting new dates) beyond the one-year period—which means that the trial
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 15 of 18 date would be set beyond the next status conference. Based on the docket and
the record, it should have been clear and obvious to Hoback that he was not
going to be tried until after the next status conference, which was scheduled for
June 5, 2019.
[31] Nevertheless, the majority’s two-pronged argument is that the docket and
record here are devoid of any reasons for the delay in Hoback’s trial, ante, at ¶
18, and that Hoback did not have an obligation to object because the court did
not reset a trial date, id. at ¶ 17. In support of this argument, the majority cites
to Young v. State, in which a previous panel of this court held that when a delay
occurs and the “docket entries are absent or missing regarding the reason for
delay, the delay is not chargeable to the defendant.” 765 N.E.2d 673, 678 (Ind.
Ct. App. 2002) (citing Morrison v. State, 555 N.E.2d 458, 461 (Ind. 1990),
overruled on other grounds by Cook, 810 N.E.2d at 1067). That is, such
unsupported delays are chargeable to the State. See id.
[32] In Young, the defendant’s trial was initially set within the C.R. 4(C) one-year
period but was later reset outside of that period. 765 N.E.2d at 677. The record
did “not contain an order by the court explaining why [the defendant]’s trial did
not commence on” the original trial date, and the CCS did not “provide any
insight as to why the case was reset.” Id. There was also no evidence that
either the State or the defendant filed a motion for continuance prior to the
original trial date. Id. This court therefore reversed the defendant’s conviction
based upon a complete and utter lack of any record explaining the delay in the
defendant’s trial. Id. Here, by contrast, we have one minute entry sheet signed
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 16 of 18 by both counsel and at least three docket entries from the court explaining,
albeit not in great detail, why the trial was cancelled and a status conference
reset. While I would strongly prefer for the trial court here to have at least
provided more detail than “Other” in its CCS entry,12 the record is sufficient to
satisfy the test set forth in Young.
[33] In addition, the majority holds that a defendant does not have an obligation to
object when the trial court does not reset a trial. Ante, at ¶ 17. The majority’s
holding is quite similar to the repudiated reasoning in the following cases:
1. State v. Hurst, 688 N.E.2d 402 (Ind. 1997); 2. Morrison v. State, 555 N.E.2d 458 (Ind. 1990); 3. Carr v. State, 790 N.E.2d 599 (Ind. Ct. App. 2003); 4. Nance v. State, 630 N.E.2d 218 (Ind. Ct. App. 1994); 5. Solomon v. State, 588 N.E.2d 1271 (Ind. Ct. App. 1992); 6. Harrington v. State, 588 N.E.2d 509 (Ind. Ct. App. 1992); and 7. Miller v. State, 570 N.E.2d 943 (Ind. Ct. App. 1991).
Cook, 810 N.E.2d at 1067 (overruling Hurst and Morrison to the extent
inconsistent; disapproving of Carr, Nance, Solomon, Harrington, and Miller).
[34] The holdings in Hurst, Morrison, Carr, Nance, Solomon, Harrington, and Miller
stand in part for the proposition that “any delay, regardless of who requested it,
cannot be charged to the defendant unless a trial date had already been set.”
12 A review of the merits here would have been substantially aided by a transcript of the status conference that led to the relevant docket and CCS entries. However, the court reporter averred in her affidavit attached at the end of the transcript in this case that the March 20, 2019, status conference was not recorded. Tr. Vol. III at 78. We therefore are left to make reasonable inferences from the docket and record as to what transpired during that status conference.
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 17 of 18 Cook, 810 N.E.2d at 1066 (citing all seven cases). In Cook v. State, our Supreme
Court specifically rejected that reasoning and held, as expressed above, that
“delays caused by action taken by the defendant are chargeable to the defendant
regardless of whether a trial date has been set.” Id. at 1067. I acknowledge that
in Cook, the Indiana Supreme Court was addressing an issue related to delays
when a case had not yet been set for its first trial setting, id. at 1065, 1068;
however, the reasoning in Cook is fairly extended to the situation here. I think it
is too strict of a reading of Young and its progeny to find a violation of C.R. 4(C)
simply because the trial court here did what the parties asked it to do—set a
status conference beyond the initial one-year period and not set a trial date.
[35] Accordingly, I dissent.13
.
13 Because it finds Hoback’s C.R. 4(C) claim dispositive, the majority does not reach the other issues Hoback raises on appeal. Based on a cursory review of Hoback’s other claims, I would affirm Hoback’s convictions.
Court of Appeals of Indiana | Opinion 23A-CR-411 | December 20, 2023 Page 18 of 18