Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 28 2013, 5:41 am 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:
JON C. OWEN GREGORY F. ZOELLER Kendallville, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DANA L. BERING, ) ) Appellant-Defendant, ) ) vs. ) No. 57A05-1212-CR-646 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE NOBLE CIRCUIT COURT The Honorable James R. Heuer, Special Judge Cause No. 57C01-1103-FD-1
August 28, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge The appellant-defendant, Dana L. Bering, brings this interlocutory appeal
challenging the trial court’s denial of her motion for discharge under Criminal Rule 4(C).
In support of her contention, Bering claims that the trial court did not properly calculate
the delays that were attributable to the State.
The record supports the trial court’s determination that the delays in bringing
Bering to trial were caused by her motions to continue hearings, trial dates, and her entry
of a guilty plea. When the guilty plea was in effect, no trial was needed. Thus, Criminal
Rule 4 that is designed to bring about a speedy trial had no purpose at that time.
However, when Bering’s guilty plea was vacated, Criminal Rule 4 again became
relevant. When Bering filed her motion for discharge, only 187 days of the allotted 365
days set forth in Criminal Rule 4 had expired. Thus, the trial court properly determined
that Bering was not entitled to be discharged. As a result, we affirm the trial court’s
judgment and remand this cause for trial.
FACTS
On March 8, 2011, the State charged Bering with five counts of theft and one
count of fraud. An initial hearing was conducted that same day, and the trial court set an
omnibus date for May 12, 2011. Although a pretrial conference was to be conducted on
May 12, 2011, Bering moved to continue that conference. Her motion for continuance
was granted and the trial court rescheduled the pretrial conference to June 6, 2011. The
trial court attributed this delay to Bering.
2 On June 6, 2011, the trial court scheduled a jury trial for October 18, 2011, and a
final pretrial conference for September 29, 2011. However, on September 26, Bering
orally moved to continue the final pre-trial conference, as well as the trial date. The trial
court granted Bering’s motion and reset her trial for January 31, 2012. The trial court
also charged Bering with that delay. Bering’s final pre-trial conference was scheduled
for January 12, 2012, the last date on which the trial court would accept a guilty plea
before trial.
On January 12, 2012, the parties submitted a plea agreement to the trial court.
Thereafter, the trial court conducted a guilty plea hearing after which the trial date of
January 31, 2012, was vacated. The trial court scheduled Bering’s sentencing for March
8, 2012.
The State subsequently moved to withdraw the guilty plea on February 3, 2012,
and the trial court set that motion for hearing on March 7, 2012. On March 6, 2012,
Bering filed a motion for the recusal of the trial judge. That motion was granted the same
day and Judge Heuer of Whitley Circuit Court accepted the appointment as special judge
on March 8, 2012.
On May 3, 2012, the State filed a motion for hearing and to set the matter for trial.
On May 7, the trial court set the cause for a pre-trial conference on June 4, 2012. The
hearing was subsequently reset for June 27, 2012. On that day, the trial court heard
argument on the State’s motion to withdraw the guilty plea and took the matter under
3 advisement. The trial court granted the motion on July 31, 2012, and scheduled a pre-
trial conference for August 20, 2012.
On that day, the parties met for a pre-trial conference at which time the trial court,
over Bering’s objection, set a trial date for December 18, 2012. Bering filed a motion for
discharge on August 20, 2012, claiming that the provisions of Criminal Rule 4(C) had
been violated. The trial court subsequently issued an order on November 7, 2012,
denying Bering’s motion for discharge.
The trial court granted Bering’s request on November 26, 2012, that the matter be
certified for interlocutory appeal. We accepted jurisdiction over the interlocutory appeal
on February 4, 2013.
DISCUSSION AND DECISION
In determining whether the trial court properly denied Bering’s motion for
discharge, we note that the right to a speedy trial is guaranteed in accordance with the
Sixth Amendment to the United States Constitution and by Article I, Section 12 of the
Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). The provisions of
Criminal Rule 4 assist in implementing this right by establishing time deadlines by which
trials must commence. Collins v. State, 730 N.E.2d 181, 182 (Ind. Ct. App. 2000).
Criminal Rule 4(C) provides in relevant part that
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
4 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.
Although the duty to bring a defendant to trial within the requirements of Criminal
Rule 4(C) generally rests with the State, the rule explicitly provides that the period of
time under the rule is extended for delays that are caused by the defendant’s own act or a
continuance that is had on the defendant’s own motion. Cook v. State, 810 N.E.2d 1064,
1066-67 (Ind. 2004). In other words, if a defendant “seeks or acquiesces in any delay
that results in a later trial date, the time limitations of the rule are also extended by the
length of those delays.” Wooley v. State, 716 N.E.2d 919, 924 (Ind. Ct. App. 1999).
We initially observe that the State correctly maintains that Bering waived her right
to a speedy trial when she pleaded guilty. Branham v. State, 813 N.E.2d 809, 811 (Ind.
Ct. App. 2004). Indeed, Bering pleaded guilty and signed an agreement, which included
as one of its advisements, that she had a right to proceed to trial and that by entering the
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 28 2013, 5:41 am 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:
JON C. OWEN GREGORY F. ZOELLER Kendallville, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DANA L. BERING, ) ) Appellant-Defendant, ) ) vs. ) No. 57A05-1212-CR-646 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE NOBLE CIRCUIT COURT The Honorable James R. Heuer, Special Judge Cause No. 57C01-1103-FD-1
August 28, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge The appellant-defendant, Dana L. Bering, brings this interlocutory appeal
challenging the trial court’s denial of her motion for discharge under Criminal Rule 4(C).
In support of her contention, Bering claims that the trial court did not properly calculate
the delays that were attributable to the State.
The record supports the trial court’s determination that the delays in bringing
Bering to trial were caused by her motions to continue hearings, trial dates, and her entry
of a guilty plea. When the guilty plea was in effect, no trial was needed. Thus, Criminal
Rule 4 that is designed to bring about a speedy trial had no purpose at that time.
However, when Bering’s guilty plea was vacated, Criminal Rule 4 again became
relevant. When Bering filed her motion for discharge, only 187 days of the allotted 365
days set forth in Criminal Rule 4 had expired. Thus, the trial court properly determined
that Bering was not entitled to be discharged. As a result, we affirm the trial court’s
judgment and remand this cause for trial.
FACTS
On March 8, 2011, the State charged Bering with five counts of theft and one
count of fraud. An initial hearing was conducted that same day, and the trial court set an
omnibus date for May 12, 2011. Although a pretrial conference was to be conducted on
May 12, 2011, Bering moved to continue that conference. Her motion for continuance
was granted and the trial court rescheduled the pretrial conference to June 6, 2011. The
trial court attributed this delay to Bering.
2 On June 6, 2011, the trial court scheduled a jury trial for October 18, 2011, and a
final pretrial conference for September 29, 2011. However, on September 26, Bering
orally moved to continue the final pre-trial conference, as well as the trial date. The trial
court granted Bering’s motion and reset her trial for January 31, 2012. The trial court
also charged Bering with that delay. Bering’s final pre-trial conference was scheduled
for January 12, 2012, the last date on which the trial court would accept a guilty plea
before trial.
On January 12, 2012, the parties submitted a plea agreement to the trial court.
Thereafter, the trial court conducted a guilty plea hearing after which the trial date of
January 31, 2012, was vacated. The trial court scheduled Bering’s sentencing for March
8, 2012.
The State subsequently moved to withdraw the guilty plea on February 3, 2012,
and the trial court set that motion for hearing on March 7, 2012. On March 6, 2012,
Bering filed a motion for the recusal of the trial judge. That motion was granted the same
day and Judge Heuer of Whitley Circuit Court accepted the appointment as special judge
on March 8, 2012.
On May 3, 2012, the State filed a motion for hearing and to set the matter for trial.
On May 7, the trial court set the cause for a pre-trial conference on June 4, 2012. The
hearing was subsequently reset for June 27, 2012. On that day, the trial court heard
argument on the State’s motion to withdraw the guilty plea and took the matter under
3 advisement. The trial court granted the motion on July 31, 2012, and scheduled a pre-
trial conference for August 20, 2012.
On that day, the parties met for a pre-trial conference at which time the trial court,
over Bering’s objection, set a trial date for December 18, 2012. Bering filed a motion for
discharge on August 20, 2012, claiming that the provisions of Criminal Rule 4(C) had
been violated. The trial court subsequently issued an order on November 7, 2012,
denying Bering’s motion for discharge.
The trial court granted Bering’s request on November 26, 2012, that the matter be
certified for interlocutory appeal. We accepted jurisdiction over the interlocutory appeal
on February 4, 2013.
DISCUSSION AND DECISION
In determining whether the trial court properly denied Bering’s motion for
discharge, we note that the right to a speedy trial is guaranteed in accordance with the
Sixth Amendment to the United States Constitution and by Article I, Section 12 of the
Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). The provisions of
Criminal Rule 4 assist in implementing this right by establishing time deadlines by which
trials must commence. Collins v. State, 730 N.E.2d 181, 182 (Ind. Ct. App. 2000).
Criminal Rule 4(C) provides in relevant part that
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
4 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.
Although the duty to bring a defendant to trial within the requirements of Criminal
Rule 4(C) generally rests with the State, the rule explicitly provides that the period of
time under the rule is extended for delays that are caused by the defendant’s own act or a
continuance that is had on the defendant’s own motion. Cook v. State, 810 N.E.2d 1064,
1066-67 (Ind. 2004). In other words, if a defendant “seeks or acquiesces in any delay
that results in a later trial date, the time limitations of the rule are also extended by the
length of those delays.” Wooley v. State, 716 N.E.2d 919, 924 (Ind. Ct. App. 1999).
We initially observe that the State correctly maintains that Bering waived her right
to a speedy trial when she pleaded guilty. Branham v. State, 813 N.E.2d 809, 811 (Ind.
Ct. App. 2004). Indeed, Bering pleaded guilty and signed an agreement, which included
as one of its advisements, that she had a right to proceed to trial and that by entering the
guilty plea, she was waiving that right. Appellant’s App. p. 41.
At the guilty plea hearing, the trial court orally advised Bering of her right to a
trial and reminded her that she was waiving that right by pleading guilty. Bering
acknowledged that she understood those rights and the consequences of pleading guilty.
As a result, Bering has waived her right to a speedy trial. Id. at 811.
5 Waiver notwithstanding, we note that the period of time embodied in the rule
commenced on March 8, 2011, which was the date that the charges were filed and the
date Bering was arrested. Appellant’s App. p. 3. However, that initial segment ended
sixty-five days later on May 12, 2011, when Bering moved to continue the pre-trial
conference that had been set for that day. The next pre-trial conference was scheduled
for June 16, 2011, that resulted in a thirty-five day delay in setting a trial date for
Bering’s case.
As noted above, a trial date was set for October 18, 2011, and the trial court
scheduled a final pre-trial conference for September 29, 2011. However, as noted above,
Bering moved to continue both dates on September 26, 2011. The trial court granted
Bering’s motion, and her trial was reset for January 31, 2012, with a final pre-trial
conference set for January 12, 2012. That said, the 102 days from the June 16, 2011, pre-
trial conference until September 26, 2011, properly accrue against the rule period. Time
beyond the filing of Bering’s motion to continue the trial date, however, does not accrue
against that period. In other words, this was a delay that Bering clearly caused by her
motion and the next 108 days—from September 26, 2011, until January 12, 2012—fall
outside the period set forth in the rule. That said, only 167 days of the allotted 365-day
period had expired.
The next delay occurred on January 12, 2012, when Bering pleaded guilty and
waived her right to proceed to trial. The trial court questioned Bering in detail, and after
knowingly and voluntarily entering a guilty plea, it vacated the existing trial date. That
6 said, the delay following Bering’s guilty plea is chargeable to her because the delay was
caused by her decision to plead guilty. Cook, 810 N.E.2d at 1066-67.
The delay after the vacation of the trial date because of the guilty plea did not end
until July 31, 2012, which was the date that the trial court granted the State’s motion to
reject the guilty plea. Until that point, there was no need for a trial because Bering had
pleaded guilty and waived her right to a trial.
Although Criminal Rule 4 is designed to assure a speedy trial, it is not to be used
as a technical means to avoid a trial. Cundiff v. State, 967 N.E.2d 1026, 1028 (Ind.
2012). Indeed, Bering was afforded earlier trial settings so there is no question that the
trial court was attempting to bring Bering to trial as quickly as possible. However, as
noted above, Bering moved to continue the first trial date and pleaded guilty immediately
before the second. Therefore, the purpose and spirit of Criminal 4(C) were fulfilled. In
other words, during the existence of the otherwise valid guilty plea, there was no need for
a trial, thus removing any practical application of Criminal Rule 4.
On the other hand, the period of time embodied in the rule came back into effect
when the trial court vacated the guilty plea. At that point, a trial was again required and
the provisions of Criminal Rule 4 were needed to protect Bering’s right to a speedy trial.
To reiterate, the trial court vacated Bering’s proposed guilty plea on July 31, 2012, and
set the case for a pre-trial conference on August 20, 2012. On that date, Bering filed the
motion for discharge. The twenty days (from July 31, 2012, until August 20, 2012)
would accrue against the rule period and, added to the already-expired lapse of 167 days,
7 results in only 187 days of the 365 days allotted to the State having expired when Bering
filed the motion for discharge.
In conclusion, the delays were caused by Bering’s various motions for
continuances that delayed the proceedings. Bering’s initial decision to plead guilty
rendered any need for a trial, speedy, or otherwise, moot. And because the period set
forth in the rule had not yet expired at the time of the discharge motion, Bering was not
entitled to relief.
The judgment of the trial court is affirmed and this cause is remanded for trial.
FRIEDLANDER, J., and VAIDIK, J., concur.