IN THE
Court of Appeals of Indiana FILED Desiree Heitz, Jun 06 2025, 8:53 am
CLERK Appellant-Defendant Indiana Supreme Court Court of Appeals and Tax Court
v.
State of Indiana, Appellee-Plaintiff
June 6, 2025 Court of Appeals Case No. 24A-CR-802 Appeal from the Marion Superior Court The Honorable Jose D. Salinas, Judge Trial Court Cause No. 49D23-2212-F6-033581
Opinion by Judge Weissmann Judge Pyle concurs. Judge Felix dissents with a separate opinion.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 1 of 28 Weissmann, Judge.
[1] The fundamental right to a speedy trial, guaranteed by both the Sixth
Amendment to the United States Constitution1 and Article 1, § 12 of the
Indiana Constitution2, “imposes an affirmative duty on the government to
ensure that criminal defendants receive the swift administration of justice.”
Watson v. State, 155 N.E.3d 608, 611 (Ind. 2020). Indiana Criminal Rule 4(C)
implements this right by setting a strict one-year deadline for the State to bring a
defendant to trial. This deadline may be extended only under limited
circumstances, including when “delays [are] caused by a defendant.” Crim. R.
4(C). Although Criminal Rule 4(C) imposes on the State the burden of bringing
defendants to trial without creating any reciprocal duty by defendants to act to
ensure their own timely trial, these roles were effectively reversed in this case.
[2] As the State struggled for 10 months to first collect and then share documents
essential to its prosecution of Desiree Heitz for identity theft, Heitz repeatedly
declined to request a trial date. The State, seemingly unprepared for trial, also
did not request a trial date. This prompted the trial court, in accordance with its
own policy, to refrain from setting the case for trial. When Heitz eventually
requested a trial and it was scheduled for a date 15 months after she was
1 The Sixth Amendment to the United States Constitution specifies that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” 2 Art. 1, § 12 provides that “[j]ustice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 2 of 28 charged, the trial court determined that Heitz was responsible for the delay and
refused to discharge her under Criminal Rule 4(C). But Heitz’s act of not
seeking a trial date, which the State also did not request, did not extend the one-
year deadline for her trial. This is because her failure to request a trial date did
not constitute “delays caused by a defendant” within the meaning of Criminal
Rule 4(C). Because the State ultimately failed to bring Heitz to trial within the
4(C) period, we reverse and remand with instructions to grant Heitz’s motion to
dismiss.
Facts [3] Heitz was criminally charged in December 2022. Thereafter, at least eight
different deputy prosecutors and one graduate legal intern appeared at various
times and struggled to complete discovery in Heitz’s case. A trial date was not
requested until December 2023—almost a year after the charges were filed—
largely due to the trial court’s policy of not setting a trial date until the case was
ready for trial. When the court finally set Heitz’s trial for March 11, 2024, Heitz
contended the date was outside Criminal Rule 4(C)’s one-year deadline. Heitz
later moved to dismiss the charges under the rule. The trial court denied the
motion, finding that Heitz’s repeated failure to seek a trial date constituted
delay that effectively stopped the clock for purposes of the State’s one-year
deadline for prosecution under Criminal Rule 4(C). Heitz appeals.
[4] As with all Criminal Rule 4(C) cases, we must look closely at the events in
Heitz’s prosecution as it progressed through the date of her motion to dismiss.
The prosecution began on December 14, 2022, when Heitz was charged with Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 3 of 28 two counts of Level 6 felony identity theft for allegedly using someone else’s
identity to both buy a vehicle and obtain medical care in Marion County. Heitz
was arrested three days later, and the trial court conducted an initial hearing on
December 19, 2022. Three days after that hearing, the trial court released Heitz
to home detention with GPS monitoring.
[5] On January 17, 2023, Heitz failed to appear for a pretrial conference because
she was in custody on other charges in Johnson County. Several days later,
Heitz was released by Johnson County and soon returned to custody in Marion
County. On February 14, 2023, Heitz appeared in court in Marion County for
both an attorney’s conference in this case and a separate prosecution in which
she was charged with theft of a catalytic converter.
[6] At the start of the attorneys’ conference, the trial court asked Heitz’s counsel
about the status of this case. The attorney replied:
Not pursuing a trial setting, Judge, just a pretrial in due course. It sounds like the State is considering if there’s additional charges to file, so there is discovery outstanding . . . so we’re not requesting a trial setting.
Tr. Vol. II, p. 30. As the hearing was concluding, Heitz’s counsel reiterated,
“Not requesting a trial date, Your Honor.” Id. at 45. The State also did not ask
for a trial, and the trial court did not schedule one.
[7] On March 28, 2023, Heitz’s counsel described the nature of the discovery
issues:
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 4 of 28 Judge, both these cases got some discovery outstanding. I reached out to the State to talk about the discovery we’re looking for and what’s missing. On the case ending in 581, it’s—there’s going to be some significant discovery, we think. So we’re not in a rush to start negotiating until both sides kind of see kind of more (sic) what the discovery is going to look like.
Id. at 49.
[8] At hearings on May 9 and June 13, 2023, Heitz’s counsel reiterated that the
defense was still waiting for the State’s discovery. Little had changed at the next
hearing on July 25, at which Heitz’s counsel reported:
On [this case], there’s a significant amount of discovery that we haven’t received. We’ve been in contact with three different prosecutors on this one. Ms. Garcin’s (phonetic) the third prosecutor so I understand there’s some turnover, but I’ve consistently heard from prosecutors that there’s going to be a lot of discovery coming my way. Have not yet got it.
Id. at 63.
[9] Also at the July 25 hearing, Heitz’s counsel asked for a discovery deadline. The
following exchange then took place:
[DEFENSE COUNSEL]: I’d like a deadline if the Court will give it to me. The case is getting some age.
THE COURT: Here’s the thing, I’m asking the questions because my view is lawyers should always talk to each other even if there’s -- because there’s turnover on both sides.
[DEFENSE COUNSEL]: Yeah.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 5 of 28 THE COURT: So just remember, what goes one way usually comes back the other way –
[DEFENSE COUNSEL]: I understand.
THE COURT: -- as far as you know, certain requests. I’m going to do -- well, I’ll take anything under consideration. Are you requesting a discovery deadline for that specific discovery or do you still want time to try to work it out with this prosecutor?
[DEFENSE COUNSEL]: I’d like a discovery deadline at a date the Court thinks is reasonable. These cases are getting so old. If we could get maybe in September a discovery deadline that gives us plenty of time –
THE COURT: No, we’re going to do this. We’re going to come back in August, late August. . . . Late August should be plenty of time to get the discovery exchanged.
Id. at 64. The deputy prosecutor then acknowledged, “I’ve spoken with
the victim[,] and I know that we have at least 100 pages of documents
that need to be redacted before they are turned over.” Id. at 64-65.
[10] On August 29, 2023, more than eight months after Heitz was charged, Heitz’s
counsel reported the defense still had not received the State’s discovery:
I just have heard from multiple prosecutor’s [sic] multiple times that there’s lots of information relevant to the charge that they need to either go through and make sure there’s not confidential information that they can’t share with me. So it’s just discovery that they would need to proceed with the trial that I haven’t gotten.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 6 of 28 Id. at 69-70. The State, represented by a graduate intern supervised by a
prosecutor newly assigned to the case, noted that the discovery needed
to be uploaded.
[11] At successive hearings on October 2 and 24, 2023, Heitz’s counsel again told
the court that discovery remained outstanding. The newly assigned prosecutor
acknowledged that the issue of delivering discovery to defense counsel “was the
amount of redactions to be done with this discovery.” Id. at 92.
[12] Defense counsel stated that he was not asking for a trial setting until discovery
was provided and would argue the delay should be charged to the State for
purposes of Criminal Rule 4(C). In response, the trial court explained its policy:
If I say, are you requesting a trial date? And you didn’t request one, then it goes, it doesn’t go against the State, that they’re—I give as far as CR 4 purposes. Now, if you say, Judge, I’m not asking for them, because we’re missing the labs, there may be some nuances there, okay? So State, again, if the record shows that I said, Defense, are you requesting a trial date? They say no. If I have a reason for it, my position is it doesn’t go against the State, okay? If it’s just, you know, Judge, we’re not—we’re still in negotiations, or we’re not requesting a trial date, that should not go against the State.
Id. at 114.
[13] The State did not complete discovery until December 8, 2023, about 10 months
after it was required to do so by the Marion County Local Rules. See Marion
Super. Ct. Crim. R. LR49-CR00-107 (requiring the State “to disclose and
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 7 of 28 furnish all relevant items and information under this Rule to the defendant(s)
within twenty (20) days from the date of the initial hearing,” subject to some
limited exceptions not applicable here). During those 10 months, the case was
handled by eight different deputy prosecutors and at least one graduate legal
intern.
[14] On December 12, 2023, after discovery was finally complete, Heitz requested a
trial date, as the State still had not done so. The trial court set a trial date for
March 11, 2024, and Heitz objected, claiming that the deadline under Criminal
Rule 4(C) was February 5, 2024. On January 10, 2024, the State moved to
advance the trial date, requesting the trial date be set before February 5. It did
not concede, however, that February 5, 2024, was the Criminal Rule 4(C)
deadline.
[15] At the next hearing on January 25, 2024, the trial court denied the State’s
motion to advance the trial date, determining that March 11 was within the
Criminal Rule 4(C) deadline. On February 14, 2024, Heitz moved to dismiss
the charges under Criminal Rule 4(C), arguing that the State failed to bring her
to trial within one year. After a hearing, the trial court denied Heitz’s motion,
leading to this interlocutory appeal. The trial court agreed to stay the
prosecution until this appeal’s conclusion.
Discussion and Decision [16] Heitz challenges the trial court’s denial of her motion to dismiss, arguing that
Criminal Rule 4(C)’s one-year deadline for bringing her to trial expired before
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 8 of 28 she sought discharge by moving to dismiss the charges on February 14, 2024.
“We generally review a trial court’s ruling on a motion for discharge for an
abuse of discretion.” Battering v. State, 150 N.E.3d 597, 600 (Ind. 2020). But
when, as here, “the relevant facts are undisputed and the issue is a question of
law, we evaluate a Criminal Rule 4 motion for discharge de novo.” Id. We
conclude that Heitz was entitled to dismissal/discharge because she was not
tried within the period prescribed by Criminal Rule 4(C). In doing so, we
determine that the trial court’s policy on setting trial dates contravenes Rule
4(C).
A. Criminal Rule 4(C) [17] Criminal Rule 4(C) specifies that “[n]o person can be held on recognizance or
otherwise to answer a criminal charge for a period in aggregate exceeding one
year from the date the criminal charge against such defendant is filed, or from
the date of the arrest on such charge, whichever is later.” The rule further states
that “[d]elays caused by a defendant, congestion of the court calendar, or an
emergency are excluded from the time period.” Crim. R. 4(C).
[18] “The broad goal of Indiana’s Criminal Rule 4 is to provide functionality to a
criminal defendant’s fundamental and constitutionally protected right to a
speedy trial.” Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013) (referring to the
speedy trial guarantees in the Sixth Amendment to the United States
Constitution and Article 1, § 12 of the Indiana Constitution). The speedy trial
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 9 of 28 right is “one of this country’s most basic, fundamental guarantees.” Watson v.
State, 155 N.E.3d 608, 614 (Ind. 2020).
[19] “Criminal Rule 4(C) . . . places an affirmative duty on the State to bring a
defendant to trial within one year from the later of two dates: (1) the filing of
charges or (2) the arrest.” Id. at 615. “The defendant is neither obligated to
remind the court of the State’s duty nor is required to take affirmative steps to
ensure that [the defendant] is brought to trial within the statutory time period."
State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App. 2019). “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).” Hobeck v. State,
225 N.E.3d 208, 212 (Ind. Ct. App. 2023). As this language suggests, Criminal
Rule 4(C)’s central purpose is to ensure “a timely trial, not to create a
mechanism to avoid trial.” Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).
B. The Trial Court’s Policy On Trial Settings [20] The catalyst for this dispute is the trial court’s policy for setting trial dates in
criminal prosecutions. Under the policy, the trial court routinely asked
defendants whether they were requesting a trial setting. If the defendants
declined to request the court set the trial dates—even if the State also had not
sought them—the court generally viewed the defendants’ declinations as delay
caused by the defendants that could not be attributed to the State for purposes
of its one-year prosecution deadline under Criminal Rule 4(C). Although we
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 10 of 28 appreciate the trial court’s effort to manage its considerable docket efficiently,
this approach effectively dismantles the underpinnings of Criminal Rule 4(C) by
transferring to the defendant the State’s duty of timely prosecution.
[21] As this Court recently emphasized, local rules that conflict with the mandate of
Criminal Rule 4(C) are invalid. Ferman v. State, 232 N.E.3d 133, 138 (Ind. Ct.
App. 2024) (observing that “Indiana trial courts are authorized to establish local
rules for their own governance,” but they “must supplement, not conflict with,
‘the rules prescribed by the supreme court or any statute’” in accordance with
Indiana Code § 34-8-1-14). The Ferman Court invalidated a Fayette County
local rule that imposed “a duty on the State and the defendant to file a request
to ‘call a jury.’” Id. at 138. The local rule also attributed delay to the defendant
when neither party filed such a request. Id. at 138. The Court concluded that the
local rule improperly placed an affirmative duty on defendants to ensure their
own timely trial, thereby conflicting with Criminal Rule 4(C)’s imposition of
this burden on the State. Id. Like the local rule invalidated in Ferman, the trial
court’s policy here incorrectly shifts the burden of prosecutorial timeliness from
the State to the defendant.
[22] We come to this conclusion for multiple reasons. First, the trial court’s policy
fundamentally misapprehends Criminal Rule 4(C) by: (1) requiring the
defendant to affirmatively ensure that the defendant’s case is placed on the trial
docket; and (2) attributing delay to the defendant for failing to do so even if the
State has never requested a trial date and a trial date has never been set.
Criminal Rule 4(C) “does not call for any attribution of delay to the State but
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 11 of 28 only for delay attributable to the defendant or insufficient time due to court
congestion or emergency.” Carr v. State, 934 N.E.2d 1096, 1100 (Ind. 2010).
The question therefore is not whether delays should be “attributed” to the State,
but whether the defendant’s actions or inactions affirmatively extended the Rule
4(C) period.
[23] Second, the policy defies the established principle that the State—not the
defendant—bears the obligation to ensure the defendant’s timely prosecution.
See State v. Black, 947 N.E.2d 503, 507 (Ind. Ct. App. 2011) (ruling that a
“defendant has no obligation to remind the trial court of the State’s duty, nor is
[the defendant] required to take any affirmative action to see that [the
defendant] is brought to trial” by the Rule 4(C) deadline). Placing the sole
burden of timely prosecution on the State without any reciprocal duty on the
defendant is consistent with various due process requirements that safeguard a
defendant’s rights by requiring more of the State than of the defendant.
[24] For instance, the Due Process Clause of the Fourteenth Amendment to the
United States Constitution requires the State to persuade the factfinder “beyond
a reasonable doubt of every fact necessary to constitute the crime charged.” In
re Winship, 397 U.S. 358, 364 (1970). The defendant, on the other hand, is
presumed innocent and will be acquitted without presenting any evidence in the
defendant’s defense if the State fails to meet this burden. Id.; Taylor v. Kentucky,
436 U.S. 478, 483 (1978) (citations omitted); Higgins v. State, 783 N.E.2d 1180,
1185 (Ind. Ct. App. 2003) (noting that due process bars the transfer of the
State’s burden of proof to the defendant). And although due process requires
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 12 of 28 the State to disclose material, exculpatory evidence to criminal defendants who
request it, these defendants have no corresponding duty to reveal incriminating
evidence to the State. Brady v Maryland, 373 U.S. 83, 87 (1963); U.S. Const.
amend. V (“[N]or shall [any person] be compelled in any criminal case to be a
witness against himself”); Ind. Const. art. 1, § 14 (“No person, in any criminal
prosecution, shall be compelled to testify against himself.”).
[25] The Ferman Court’s reasoning underscores the largely one-sided nature of
Criminal Rule 4(C) responsibility. This Court noted that trial courts may not
implement policies that effectively “absolve[] the State of its ‘affirmative duty’
to timely prosecute a defendant.” Ferman, 232 N.E.3d at 139 (adopting
language in the appellant’s brief). And like the trial court in Ferman, the court
presiding over Heitz’s prosecution incorrectly charged Heitz with delay for not
requesting a trial date, given that Criminal Rule 4(C) places no such obligation
on defendants.
[26] Refuting Ferman’s applicability here, the State contends that Heitz’s declination
of a trial date and failure to expedite the discovery process were the functional
equivalent of a motion for continuance that delayed her trial. But Heitz had no
need to seek a continuance. The State never requested a trial date, and Heitz
did not seek one until discovery was complete in December 2023. Nothing in
the record suggests the State was ready to try Heitz before then, given that the
State had struggled to collect and redact the necessary evidence from the victim
and did not complete that task until nearly a year after it initiated the
prosecution. Treating Heitz’s declination of trial dates as defendant-caused
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 13 of 28 delay was improper because this period amounted to no more than the routine
running of the Criminal Rule 4(C) clock while the State prepared its case.
[27] Third, citing the defendant with delay for not requesting a trial date when
discovery remains outstanding is inconsistent with the “discovery exception”
applied in Criminal Rule 4(C) cases. Under this exception, a continuance
sought by a defendant due to the State’s failure to comply with discovery
requests is not considered delay caused by the defendant for purposes of Rule 4.
Carr, 934 N.E.2d at 1101. This principle was reinforced in Wellman v. State, in
which this Court ruled that “[a] defendant should not be forced to either waive
the right to a speedy trial or proceed to trial unprepared” and that this
“‘untenable situation’ can arise with even the most innocent of State discovery
delays.” 210 N.E.3d 811, 816 (Ind. Ct. App. 2023) (quoting Biggs v. State, 546
N.E.2d 1271, 1275 (Ind. Ct. App. 1989)).
[28] Given this discovery exception, if the trial court had set a trial date and Heitz
had moved for a continuance due to the State’s failure to provide discovery, the
delay would not have extended the Criminal Rule 4(C) period. See Marshall v.
State, 759 N.E.2d 665, 670-71 (Ind. Ct. App. 2001) (reversing denial of motion
for discharge after finding delay caused by defendant’s motion for continuance,
which was based on State’s failure to respond to defendant’s discovery request,
was “not chargeable to” defendant for 4(C) purposes). By attributing delay to
Heitz that would not have been chargeable to her under the discovery exception
if she had sought a continuance of a scheduled trial date, the court effectively
creates a catch-22. If Heitz had requested a trial date despite knowing discovery
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 14 of 28 was incomplete, she may have been forced to choose between her speedy trial
rights and adequate preparation for trial—precisely the “untenable position”
our discovery exception is designed to prevent. See Wellman, 210 N.E.3d at 816.
Yet by acknowledging the practical realities of incomplete discovery and
declining to request a trial date before the State sought or the trial court
scheduled trial, Heitz was charged with delaying her own trial. “[B]eing asked
to either waive h[er] rights to a speedy trial or proceed to trial unprepared . . . is
a decision that a defendant should not be forced to make.” Marshall, 759 N.E.2d
at 670.
[29] The trial court’s policy contravenes Ferman’s ruling that, when a trial court’s
local practice conflicts with Criminal Rule 4(C), the local practice is invalid,
and delays arising from noncompliance with such practices cannot be charged
to defendants. Ferman, 232 N.E.3d at 138. As this Court recognized in Carr,
Criminal Rule 4(C) establishes a one-year period for prosecution that runs
continuously absent specific qualifying interruptions that extend the period—
none of which occurred here after mid-February 2023. Carr, 934 N.E.2d at
1100-01.
[30] We understand the challenge that trial courts face in efficiently managing their
dockets and the good-faith effort to create clear, consistent procedures. Still,
such procedures must align with the constitutional and statutory rights of
defendants and the corresponding responsibilities of the State.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 15 of 28 C. Disputed Time Periods in the Rule 4(C) Calculation
[31] Having established the troubling vagaries of the trial court’s policy, we turn to
the parties’ respective Criminal Rule 4(C) claims. The parties disagree about
how to categorize three specific periods in this case: (1) February 14 to March
28, 2023 (42 days); (2) September 19 to October 2, 2023 (13 days); and (3)
October 2 to October 24, 2023 (22 days). During each of these periods, the
State’s discovery was outstanding, no trial date had been established, and Heitz
declined to request a trial date.
[32] The State contends these purported delays should be attributed to Heitz because
she explicitly stated she was not requesting a trial date during these periods.
Heitz argues her actions did not extend the Criminal Rule 4(C) deadline
because they resulted from the State’s failure to provide mandatory discovery,
not from any affirmative action on her part. Whether “a particular delay in
bringing a defendant to trial violates the speedy trial guarantee largely depends
on the specific circumstances of the case.” Payton v. State, 905 N.E.2d 508, 511
(Ind. Ct. App. 2009) (quotations omitted).
[33] In this case, the Marion County Local Rules required the State to provide
discovery by January 9, 2023—20 days after Heitz’s initial hearing. Marion LR-
49-CR00-107. But by February 14, 2023, the State was already a month tardy in
fulfilling its discovery obligations. By September 19, 2023, the State still had not
complied, and that failure continued until December 2023—long after the
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 16 of 28 periods now in dispute. Thus, throughout all three disputed periods, discovery
remained outstanding.
[34] As our Supreme Court long ago recognized, the objective of pretrial discovery is
to promulgate justice and prevent surprise by allowing adequate defense
preparation. Biggs v. State, 546 N.E.2d 1271, 1275 (Ind. 1989) (citing Campbell v.
State, 500 N.E.2d 174, 182 (Ind. 1986)). Rules or orders requiring pretrial
discovery are intended to enhance the accuracy and efficiency of the factfinding
process by providing the maximum possible information to each party to enable
their trial preparation. Id. (citing Wiseheart v. State, 491 N.E.2d 985, 990 (Ind.
1986) and Borst v. State, 459 N.E.2d 751, 752 (Ind. Ct. App. 1984)).
[35] The critical question here is not whether Heitz requested a trial date, but
whether her actions or inactions affirmatively extended the one-year period
allowed by Criminal Rule 4(C). The defendant has no duty to bring herself to
trial and need not object before the year period expires if no trial date is set.
Young v. State, 765 N.E.2d 673, 679 (Ind. Ct. App. 2002). Therefore, simply not
requesting a trial date cannot be construed as constituting an affirmative action
that extends Rule 4(C)’s one-year period. And “[t]he direction [in Rule 4] to
discharge is mandatory; nothing will prevent the rule’s operation save its own
exceptions.” See Crosby v. State, 597 N.E.2d 984, 987 (Ind. Ct. App. 1992)
(considering a motion for discharge under Criminal Rule 4(B), which sets a 70-
day period for trial once the defendant files a motion under that rule).
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 17 of 28 [36] After careful review of the record and precedent, we find that both the February
2023 and September-October 2023 delays should not be attributed to Heitz in
line with the policy underlying the discovery exception: that “delay” caused by
the State’s tardy discovery is not chargeable to the defendant for Criminal Rule
4(C) purposes. See Wellman, 210 N.E.3d at 816. The purported delays from
these disputed periods all stem from the same underlying challenge: Heitz’s
inability to properly prepare for trial due to the State’s ongoing failure to
provide discovery.
[37] The dissent mistakenly characterizes the hearing on February 14, 2023, as an
instance when Heitz affirmatively “delayed the proceedings” and “was
affirmatively requesting no trial date.” Slip Op., ¶ ___. While acknowledging the
impropriety of the trial court’s policy, the dissent nevertheless analyzes the
February 14 exchange in isolation, divorced from the context that gives it
meaning. The record, viewed holistically, reveals that this exchange was merely
one instance in a pattern of proceedings conducted pursuant to the trial court’s
improper policy.
[38] At nearly every hearing, including the February 14, 2023, proceeding, the trial
court pointedly asked defense counsel—and not the State—for the status of the
case or whether defense counsel was seeking a trial setting. These questions
effectively implemented the court’s policy requiring defendants to set their cases
for trial. The questions also invited defense counsel’s response: that Heitz was
not seeking a trial setting. Tr. Vol. II, pp. 45, 49, 52, 55-56, 59, 63-64, 69, 81. By
concurring with the majority’s critique of the policy while still attributing delay
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 18 of 28 to Heitz based on an exchange governed by that very policy, the dissent calls
the foul without curing the harm.
[39] Furthermore, defense counsel’s comments on February 14, 2023, cannot
properly be characterized as an affirmative act causing delay. The record makes
clear that until the State fulfilled its discovery obligations in December 2023,
Heitz consistently raised the issue of outstanding discovery. The State’s
persistent failure to meet its discovery obligations—spanning nearly 11
months—formed the backdrop for every pretrial hearing, including the
February 14 hearing. Some months later, even the trial court recognized that
requesting a trial date before discovery completion would be impractical, stating
“my belief has always [been], you take [care] of the discovery before you ask for
a trial date.” Id. at 101. This acknowledgment by the trial court demonstrates
why defense counsel’s statement on February 14 cannot be viewed as an
independent act causing delay, but rather as a reasonable response to ongoing
discovery issues within the framework of the court’s policy.
[40] The dissent also suggests that we are expanding the discovery exception in a
way that might “subvert our trial rules.” Slip Op., ¶ ___. This analysis, however,
artificially separates the discovery exception from the trial court’s policy—the
very policy the dissent agrees is improper. The discovery exception cannot be
analyzed in isolation when it operates within a system that already misallocates
the burden of ensuring timely trials. Under the trial court’s policy, defendants
face an untenable choice: either request a trial date without complete discovery
and risk being unprepared or decline to request a trial date and have that
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 19 of 28 declination counted as defendant-caused delay. See Wellman, 210 N.E.3d at 816
(ruling that defendants should not be required to make this choice).
[41] Our ruling does not expand the discovery exception; rather, it prevents the trial
court’s improper policy from nullifying the discovery exception altogether. The
dissent’s concern about subverting trial rules overlooks that it was the trial
court’s policy—not our application of the discovery exception—that
undermined Criminal Rule 4(C) by shifting to the defendant the State’s burden
of bringing a prosecution to trial. Addressing one aspect of this burden-shifting
while preserving another would provide no meaningful remedy for this
Criminal Rule 4(C) violation. Nor would it deter prosecutors from dragging
their feet on discovery matters so long that they do not timely bring criminal
prosecutions to trial.
[42] Returning to our Criminal Rule 4(C) calculation, the only delay properly
attributable to Heitz is the agreed 29-day period from January 17 to February
14, 2023, when she was in custody in Johnson County. This extended the
original deadline from December 17, 2023, to January 15, 2024.
[43] When the trial court scheduled the trial for March 11, 2024—a date outside the
one-year Criminal Rule 4(C) deadline—Heitz properly objected. And when the
trial court declined to reschedule the trial, Heitz timely moved for dismissal
under Criminal Rule 4(C) on February 14, 2024. Given that the one-year period
had expired the month before, Heitz was entitled to dismissal and discharge.
The trial court erred in denying Heitz’s motion to dismiss.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 20 of 28 Conclusion
[44] We recognize the practical challenges faced by all participants in our criminal
justice system.3 But Criminal Rule 4(C) establishes clear requirements that
cannot be circumvented by local court policies, no matter how well-intentioned
those policies may be. The rule places an affirmative duty on the State to bring
defendants to trial within one year, with no corresponding obligation for
defendants to facilitate their own prosecution.
[45] In this case, the trial court’s policy of attributing delay to defendants who do
not request trial dates fundamentally misapplies Criminal Rule 4(C) and
improperly shifts the burden from the State to the defendant. Heitz cannot be
faulted for declining to request a trial date while awaiting discovery that the
State was obligated—but repeatedly failed—to provide. The State’s prolonged
3 The challenges facing Indiana prosecutors and trial courts in dispensing timely justice are particularly evident in high-volume jurisdictions like Marion County, which processed approximately 35,000 new criminal filings in 2023 alone. Prosecutors’ offices, as well as their public defender counterparts, are often understaffed, underfunded, and tasked with managing overwhelming caseloads. Similarly, trial courts face congested dockets that require difficult resource allocation decisions—a circumstance that likely led to the trial court’s practice here. These challenges are not merely administrative inconveniences but genuine obstacles to the administration of justice. The Indiana Supreme Court’s recent amendment to Criminal Rule 4 (effective January 1, 2024) reflects an institutional recognition of the practical challenges that the State faces in collecting evidence and timely providing it to the defense. Criminal Rule 4(D) now requires that when the State requests a 90-day extension to obtain evidence after a defendant seeks dismissal under Criminal Rule 4, the State must demonstrate “a reasonable and diligent effort was made to procure the evidence in a timely manner prior to moving for an extension of time.” Crim. R. 4(D)(3). Though inapplicable here because the State never sought such a continuance and had completed discovery before the first trial date was set, the amended rule reflects an effective balancing of defendants’ Rule 4(C) rights with the practical realities facing prosecutors. It creates a clear procedure for managing unavoidable delays while still ensuring diligence on the part of the State.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 21 of 28 failure to meet its discovery obligations, spanning nearly 11 months and
involving eight separate prosecutors, cannot be transformed into “a delay
caused by the defendant” under Rule 4(C).
[46] After factoring in the 29-day period when Heitz was in Johnson County
custody, the Criminal Rule 4(C) deadline was January 15, 2024. The trial date
of March 11, 2024, exceeds this deadline. As “[t]he State bears the burden to
prosecute a given case within the bounds of Rule 4(C)” and failed to do so here,
we reverse the trial court’s denial of Heitz’s motion to dismiss and remand with
instructions to grant the motion.
[47] Reversed and remanded.
Pyle, J., concurs. Felix, J., dissents with a separate opinion.
ATTORNEY FOR APPELLANT Sarah Medlin Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 22 of 28 Felix, Judge, dissenting.
[48] It should be immediately noted that I agree with the majority’s disapproval of
the trial court’s policy of putting the onus on the defendant to request a trial
date. Further, I also agree that “[t]he critical question here is . . . whether
[Heitz’s] actions or inactions affirmatively extended the one-year period
allowed by Criminal Rule 4(C).” Ante at ¶ 35.
[49] Based on this record, I respectfully dissent from the conclusion that Heitz’s
actions did not extend the one-year period. Heitz’s actions at the February 14
proceeding extended the one-year period, and consequently, the trial court’s
denial of her motion for discharge should be affirmed for the reasons set forth
below. “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.” State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App.
2019) (citing Wood v. State, 999 N.E.2d 1054, 1060 (Ind. Ct. App. 2013), trans.
denied, cert. denied). Heitz has failed to do so here.
[50] First, the trial court’s policy does not apply to the February 14 appearance.
There, the trial court asked Heitz about the status of the case, and Heitz told the
trial court, without any prompting from the court, that she wished to delay
proceedings. Almost immediately after the case was identified for the record,
defense counsel stated, “Not pursuing a trial setting, Judge, just a pretrial in due
course.” Tr. Vol. II at 30. At the close of the conference, the trial court asked,
“[Y]ou’re not requesting a trial date, right?” and Heitz confirmed that no trial
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 23 of 28 was being sought; in other words, as I interpret the request, Heitz was
affirmatively requesting no trial date. Id. at 45. Notably, in her Appellant’s
brief, Heitz concedes that, on February 14, she “asked for [an] extension[],”
meaning she delayed the proceedings. Appellant’s Br. at 16.
[51] Second, the discovery exception should not apply to Heitz’s continuance at the
February 14 proceeding. The discovery exception applies when “a trial court
grants a defendant’s motion for continuance because of the State’s failure to
comply with the defendant’s discovery requests.” Carr v. State, 934 N.E.2d
1096, 1101 (Ind. 2010). The majority posits that the underlying challenge on
February 14 was Heitz’s “inability to properly prepare for trial due to the State’s
ongoing failure to provide discovery” and thus, the discovery exception should
apply. Ante at ¶ 36. But the record suggests otherwise.
[52] As discussed above, on February 14, the parties met for an attorneys’
conference in two cause numbers. Heitz attended the conference, and defense
counsel stated, “I’m glad she is here because I didn’t have contact with her.”
Tr. Vol. II at 30. Then when asked about the status, the following exchange
occurred:
[DEFENSE COUNSEL]: Not pursuing a trial setting, Judge, just a pretrial in due course. It sounds like the State is considering if there’s additional charges to file, so there is discovery outstanding that --
THE COURT: On which of the cases, State?
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 24 of 28 [DEFENSE COUNSEL]: It might just be a new --
THE COURT: Oh, a new one?
[DEFENSE COUNSEL]: -- but it involves a victim in one cases [sic], so we’re not requesting a trial setting.
Id. Initially, the record does not clearly show that defense counsel was referring
to the present cause when citing discovery while asking for a continuance. The
parties met for the conference on two cause numbers, and defense counsel
could have been referring to discovery in the other cause number or possibly in
the new charges which had not yet been filed. The record does not provide
clarity either way. Assuming counsel was referring to discovery in this cause,
Heitz concedes that, on top of her discovery concerns, “other factors were in
play.” Appellant’s Br. at 16. Those other factors were defense counsel’s lack of
contact with Heitz at this point due to her recent detention in another county
and the possibility of new charges being filed against her. Thus, it is clear from
the record and Heitz’s own argument that the February 14 continuance was not
solely due to discovery concerns.
[53] Because discovery was not the sole reason for the continuance, the discovery
exception should be unavailable. At the February 14 conference, Heitz sought
a continuance for multiple reasons, including lack of communication and
outstanding discovery. Considering that defense counsel had not been in
contact with Heitz since her detention in another county, it is unlikely that
Heitz would have been prepared for trial but for the outstanding discovery.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 25 of 28 Further, we have held that continuances based on communication issues alone
extend the C.R. 4(C) deadline. Bik v. State, 211 N.E.3d 594, 598 (Ind. Ct. App.
2023) (concluding seven continuances for communication issues were not
covered by the discovery exception and thus extended the C.R.4(C) deadline).
From this record, there is no way to discern the relative weight that was placed
on each factor at play, but Heitz has failed to demonstrate that discovery was
the only or primary reason that she was unable to prepare for trial and needed a
continuance on February 14.
[54] Even if discovery had been the only reason for the continuance at the February
14 appearance, the discovery exception should not apply here. The record does
not indicate that, when Heitz asked for a continuance on February 14, the State
had failed to comply with discovery requests from Heitz. As the majority notes,
the nature of the discovery issues are not present in the record until March 28.
See ante at ¶ 7. Traditionally, and I believe this is crucially important, we have
applied the discovery exception when defendants have identified the specific
discovery they are asking the State to provide. Bik, 211 N.E.3d at 598
(requesting blood test results); Wellman v. State, 210 N.E.3d 811, 817 (Ind. Ct.
App. 2023) (requesting blood test results); Martin v. State, 984 N.E.2d 1281,
1288–89 (Ind. Ct. App. 2013) (requesting blood test results); Marshall v. State,
759 N.E.2d 665, 670–71 (Ind. Ct. App. 2001) (requesting the State’s DNA test
results). Without the nature of the discovery or the whole scope of the charges
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 26 of 28 being known on February 14, there was no specific request for Heitz to make.4
While describing this hearing in her memorandum supporting her motion for
discharge, Heitz conceded, “Defense noted discovery was still outstanding but
specific discovery outstanding was not discussed.” Appellant’s App. Vol. II at
115. On appeal, Heitz still does not point to specific requests she made for
discovery; rather, she asks us to apply the discovery exception due to
“incomplete discovery.” Appellant’s Br. at 16. Since there is no indication that
Heitz made specific requests to the State at this point in the proceedings, the
trial court did not grant the February 14 continuance “because of the State’s
failure to comply with the defendant’s discovery requests.” Carr, 934 N.E.2d at
1101. As a matter of fact, at this February 14 hearing, Heitz’s counsel only
mentioned the word “discovery” one time—it was a passing comment and is
obviously not the primary basis for Heitz’s request to not set a trial date.
[55] Lastly, the majority’s application of the discovery exception to incomplete
discovery presents concerns as it relates to practice in trial courts. Our trial
rules require parties to first attempt to resolve discovery disputes without trial
court involvement, see Ind. Trial Rule 26(F); Ind. Crim. Rule 2.5(A)(2), while
4 Our new Criminal Rules require trial courts to determine whether a delay is attributable to the Defendant. See C.R. 4.1(A)(4) (2024) (“When granting or ordering a continuance, the court must designate whether the delay is excluded from the Rule 4 time period due to the act of the defendant, court congestion, or emergency.”) The new rule requires that determination to be made upon the happening of the request and not in a holistic way, meaning the trial court makes the determination based on the record before it instead of making the determination months later. Here, defense counsel had not had contact with Heitz until the February pretrial conference; the State was potentially filing new charges against Heitz; and we cannot be certain (until a month later) that the one time the word "discovery" is mentioned at the February hearing had anything to do with the cause number involved in this appeal.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 27 of 28 the majority’s opinion may motivate defendants to avoid this requirement.
Outstanding discovery is distinct from the State’s failure to respond to discovery
requests, and the majority’s extension of the discovery exception to mere
“incomplete discovery” will incentivize defendants to involve the trial court in
discovery disputes without attempting to informally resolves such disputes.
This decision makes the discovery exception the rule instead of an exception.
As an exception, it should not be available without the defendant engaging with
the State to resolve discovery issues informally and being able to specifically
identify the piece or pieces of evidence that are necessary to prepare for trial.
The majority’s application of the rule will provide a tool for defense counsel to
subvert our trial rules and obtain continuances early in the proceedings without
extending the C.R.4(C) deadline.
[56] Based on a determination that Heitz delayed the proceedings on February 14,
the C.R. 4(C) deadline would have been extended by 42 days, moving the
deadline to February 25, 2024. Under this conclusion, the trial court
unquestionably set the trial court past the C.R. 4(C) deadline when it scheduled
the trial for March 11, 2024. However, Heitz stopped the C.R. 4(C) clock when
she filed her motion for discharge on February 14, Ferman v. State, 232 N.E.3d
133, 140 (Ind. Ct. App. 2024), and C.R. 4(C) motions for discharge that are
filed prematurely are properly denied, Stephenson v. State, 742 N.E.2d 463, 487
n.21 (Ind. 2001). In sum, I would conclude that the trial court did not err in
denying Heitz’s motion for discharge.
Court of Appeals of Indiana | Opinion 24A-CR-802 | June 6, 2025 Page 28 of 28