Dennis Burgher v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 8, 2017
• Docket: 49A02-1608-CR-1823
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 08 2017, 6:09 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Dennis Burgher Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dennis Burgher, September 8, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1608-CR-1823 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff. Judge Trial Court Cause No. 49G03-1602-F3-7208

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 1 of 4 Case Summary [1] Dennis Burgher, pro se, appeals the trial court’s denial of his motion for

discharge under Indiana Criminal Rule 4. We dismiss.

Issue [2] Burgher raises several issues, but we address only a dispositive issue raised by

the State, which we restate as whether Burgher’s appeal should be dismissed

because it is moot.

Facts [3] In 2016, the State charged Burgher with Level 3 felony rape, Level 5 felony

battery, Level 5 felony criminal confinement, and Level 5 felony strangulation.

On March 2, 2016, Burgher filed a request for a speedy trial, and the trial court

set his trial for May 5, 2016. The State filed a request for DNA testing, which

the trial court granted. On April 14, 2016, the State filed a motion for a

continuance under Indiana Criminal Rule 4(D), which the trial court granted.

The trial court then set the trial for July 14, 2016. On July 7, 2016, Burgher

filed a motion for discharge pursuant to Criminal Rule 4(B), which the trial

court denied.

[4] On July 14, 2016, Burgher sought to add a witness, but his trial counsel had

been unaware of the witness or the substance of her testimony. The trial court

reset the trial for July 21, 2016, and charged the delay to Burgher. On July 21,

2016, because an essential witness was not present, the State moved to dismiss

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 2 of 4 the charges against Burgher, which the trial court granted. Burgher now

appeals.

Analysis [5] On appeal, Burgher argues that the trial court erred by denying his motion for

discharge, that the cause should have been dismissed with prejudice on July 21,

2016, and that his trial counsel was ineffective. However, the State argues that

Burgher’s appeal is moot and that we should dismiss. We agree.

[6] Our courts have held:

“[W]here the principal questions at issue cease to be of real controversy between the parties, the errors assigned become moot questions and this court will not retain jurisdiction to decide them. Stated differently, when we are unable to provide effective relief upon an issue, the issue is deemed moot, and we will not reverse the trial court’s determination where absolutely no change in the status quo will result.”

Breedlove v. State, 20 N.E.3d 172, 174 (Ind. Ct. App. 2014) (quoting Bell v. State,

1 N.E.3d 190 (Ind. Ct. App. 2013)), trans. denied. The trial court here dismissed

the charges against Burgher at the State’s request. Even if we were to address

Burgher’s arguments, “absolutely no change in the status quo” would result. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 3 of 4 Consequently, we are unable to provide effective relief to Burgher on his

arguments, and the issue is moot.1

[7] We acknowledge that, “although moot cases are usually dismissed, Indiana

courts have long recognized that a case may be decided on its merits under an

exception to the general rule when the case involves questions of ‘great public

interest.’” Id. (quoting In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991)). “‘Cases

in this category typically raise important policy concerns and present issues that

are likely to recur.’” Id. (quoting Mosley v. State, 908 N.E.2d 599, 603 (Ind.

2009)). This case does not present an important policy question, and we

decline to address Burgher’s arguments on their merits.

Conclusion [8] Burgher’s appeal is moot, and we dismiss.

[9] Dismissed.

Baker, J., and Crone, J., concur.

1 To the extent Burgher argues that the State could refile the charges, we conclude that the issue is not ripe for review. “Ripeness relates to the degree to which the defined issues in a case are based on actual facts rather than on abstract possibilities, and are capable of being adjudicated on an adequately developed record.” Indiana Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). The possibility that the State could refile charges against Burgher is an abstract possibility not capable of being adjudicated at this time.

Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 4 of 4