MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2019, 8:19 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amber C. Shaw Curtis T. Hill, Jr. Law Office of Amber C. Shaw Attorney General of Indiana New Albany, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Michael Wilcutt, February 21, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1896 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Joseph L. Appellee-Plaintiff. Claypool, Judge Trial Court Cause No. 31D01-1608-F4-523
Friedlander, Senior Judge.
[1] James Wilcutt appeals the denial of his motion to dismiss. We affirm and
remand.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 1 of 7 [2] On August 15, 2016, the State charged Wilcutt with burglary, a Level 4 felony,
and theft, a Level 6 felony. The State alleged that Wilcutt had broken into a
dwelling in Harrison County and took personal property, including tools. The
Harrison Superior Court, the trial court in this case, found probable cause for
the charges and issued an arrest warrant.
[3] Wilcutt was incarcerated in Crawford County on unrelated charges when the
trial court issued the arrest warrant in this case. On September 21, 2016,
Wilcutt filed a pro se motion with the trial court asking for a hearing and for an 1 order to transport him to the hearing. On September 22, 2016, the trial court
issued an order directing the Harrison County Sheriff to transport Wilcutt from
the Crawford County Jail to the Harrison County Jail for an initial hearing on
October 24, 2016.
[4] The scheduled hearing did not occur because Wilcutt was no longer at the
Crawford County Jail on the day he was to be transported to Harrison County.
It was later revealed that Wilcutt had been granted a medical furlough from the
Crawford County Jail and then failed to return, which resulted in his arrest in
Crawford County on October 28, 2016, and reincarceration in the Crawford
County Jail. The trial court in this case did not schedule a new initial hearing
but instead noted the arrest warrant against Wilcutt remained outstanding.
1 It appears that Wilcutt did not serve copies of this motion and his other pro se filings on the State.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 2 of 7 [5] On November 4, 2016, Wilcutt filed another pro se motion with the trial court.
He again requested an initial hearing and an order to be transported to Harrison
County. In addition, Wilcutt asked the court to appoint an attorney to
represent him. Finally, he requested a “Fast and Speedy Trial.” Appellant’s
App. Vol. II, p. 13. It appears that the trial court did not take any action on
Wilcutt’s motion.
[6] On January 26, 2017, Wilcutt filed another pro se motion with the trial court.
He sent it from the Crawford County Jail. In the motion, Wilcutt asked to be
discharged and to have the case dismissed because he had not received a “fast
and speedy trial” despite his prior request. Id. at 14.
[7] On January 30, 2017, the trial court scheduled an initial hearing for February
22, 2017. The court held the hearing as scheduled and appointed counsel to
represent Wilcutt. Wilcutt, by counsel, filed a jury trial demand and a request
for discovery.
[8] On March 28, 2017, the court issued an order directing the Harrison County
Sheriff to transport Wilcutt from the Crawford County Jail to the Harrison
County Jail for a hearing scheduled for March 29, 2017. That hearing was later
rescheduled for April 5, 2017, and on April 4, 2017, the trial court reissued the
order for transport from Crawford County.
[9] The hearing was held on April 5, 2017. During the hearing, Wilcutt, by
counsel, withdrew his request for a fast and speedy trial. The trial court
scheduled another pretrial hearing for June 28, 2017. In addition, the trial court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 3 of 7 issued another order to transport, directing the Harrison County Sheriff to
transport Wilcutt from the Crawford County Jail to the Harrison County Jail
on or before June 28, 2017.
[10] The trial court held the hearing as scheduled on June 28, 2017 and scheduled a
jury trial for October 17, 2017. The trial court issued another transport order,
on this occasion directing the sheriff to transport Wilcutt from “the Orange
County Jail, or such other place where he/she may be housed, to the Harrison
County Jail on or before September 27, 2017.” Id. at 38.
[11] On October 10, 2017, Wilcutt, by counsel, moved to continue the jury trial.
The trial court granted Wilcutt’s motion and rescheduled the trial for November
14, 2017. On November 1, 2017, the court held a hearing. Wilcutt’s counsel
appeared, but Wilcutt was absent. Counsel was unsure of Wilcutt’s location,
but the trial court noted Wilcutt had a pending case in Orange County with a
sentencing date of November 27, 2017. The trial court indicated it would
prepare a transport order.
[12] On December 18, 2017, Wilcutt, acting pro se although he was represented by
counsel, filed a motion for transport order. He claimed he was “currently
residing in the Orange County Jail,” and that the case that had caused his
incarceration in that county had been resolved. Id. at 51. He asked the trial
court to order the sheriff to transport him to the Harrison County Jail. The trial
court did not act on Wilcutt’s pro se motion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 4 of 7 [13] Next, Wilcutt obtained new counsel, who filed a Motion to Dismiss and a
request for a hearing. The trial court held a hearing. On May 10, 2018, the trial
court issued an order denying the Motion to Dismiss. On June 7, 2018, the trial
court issued findings of fact and conclusions thereon further explaining its
reasons for denying Wilcutt’s Motion to Dismiss. Wilcutt moved the trial court
to certify its order for interlocutory review, and the trial court agreed. Next,
Wilcutt asked this Court to accept review over the case, and the Court agreed.
This appeal followed.
[14] Wilcutt raises three issues, which we consolidate and restate as: whether the
trial court erred in denying his motion to dismiss. He claims the trial court
should have dismissed the State’s charges because the State did not bring him to
trial within seventy days of his request for a fast and speedy trial, in violation of
Indiana Criminal Rule 4(B).
[15] Where the facts are not in dispute, a speedy trial claim presents a question of
law. Cundiff v. State, 967 N.E.2d 1026 (Ind. 2012). We apply a de novo
standard of review to a trial court’s ruling on a question of law. Id.
[16] The Sixth Amendment and article I, section 12 of the Indiana Constitution
protect an accused’s right to a speedy trial. These constitutional provisions are
generally implemented through Indiana Criminal Rule 4(B). Cundiff, 967
N.E.2d at 1027.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2019, 8:19 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amber C. Shaw Curtis T. Hill, Jr. Law Office of Amber C. Shaw Attorney General of Indiana New Albany, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Michael Wilcutt, February 21, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1896 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Joseph L. Appellee-Plaintiff. Claypool, Judge Trial Court Cause No. 31D01-1608-F4-523
Friedlander, Senior Judge.
[1] James Wilcutt appeals the denial of his motion to dismiss. We affirm and
remand.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 1 of 7 [2] On August 15, 2016, the State charged Wilcutt with burglary, a Level 4 felony,
and theft, a Level 6 felony. The State alleged that Wilcutt had broken into a
dwelling in Harrison County and took personal property, including tools. The
Harrison Superior Court, the trial court in this case, found probable cause for
the charges and issued an arrest warrant.
[3] Wilcutt was incarcerated in Crawford County on unrelated charges when the
trial court issued the arrest warrant in this case. On September 21, 2016,
Wilcutt filed a pro se motion with the trial court asking for a hearing and for an 1 order to transport him to the hearing. On September 22, 2016, the trial court
issued an order directing the Harrison County Sheriff to transport Wilcutt from
the Crawford County Jail to the Harrison County Jail for an initial hearing on
October 24, 2016.
[4] The scheduled hearing did not occur because Wilcutt was no longer at the
Crawford County Jail on the day he was to be transported to Harrison County.
It was later revealed that Wilcutt had been granted a medical furlough from the
Crawford County Jail and then failed to return, which resulted in his arrest in
Crawford County on October 28, 2016, and reincarceration in the Crawford
County Jail. The trial court in this case did not schedule a new initial hearing
but instead noted the arrest warrant against Wilcutt remained outstanding.
1 It appears that Wilcutt did not serve copies of this motion and his other pro se filings on the State.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 2 of 7 [5] On November 4, 2016, Wilcutt filed another pro se motion with the trial court.
He again requested an initial hearing and an order to be transported to Harrison
County. In addition, Wilcutt asked the court to appoint an attorney to
represent him. Finally, he requested a “Fast and Speedy Trial.” Appellant’s
App. Vol. II, p. 13. It appears that the trial court did not take any action on
Wilcutt’s motion.
[6] On January 26, 2017, Wilcutt filed another pro se motion with the trial court.
He sent it from the Crawford County Jail. In the motion, Wilcutt asked to be
discharged and to have the case dismissed because he had not received a “fast
and speedy trial” despite his prior request. Id. at 14.
[7] On January 30, 2017, the trial court scheduled an initial hearing for February
22, 2017. The court held the hearing as scheduled and appointed counsel to
represent Wilcutt. Wilcutt, by counsel, filed a jury trial demand and a request
for discovery.
[8] On March 28, 2017, the court issued an order directing the Harrison County
Sheriff to transport Wilcutt from the Crawford County Jail to the Harrison
County Jail for a hearing scheduled for March 29, 2017. That hearing was later
rescheduled for April 5, 2017, and on April 4, 2017, the trial court reissued the
order for transport from Crawford County.
[9] The hearing was held on April 5, 2017. During the hearing, Wilcutt, by
counsel, withdrew his request for a fast and speedy trial. The trial court
scheduled another pretrial hearing for June 28, 2017. In addition, the trial court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 3 of 7 issued another order to transport, directing the Harrison County Sheriff to
transport Wilcutt from the Crawford County Jail to the Harrison County Jail
on or before June 28, 2017.
[10] The trial court held the hearing as scheduled on June 28, 2017 and scheduled a
jury trial for October 17, 2017. The trial court issued another transport order,
on this occasion directing the sheriff to transport Wilcutt from “the Orange
County Jail, or such other place where he/she may be housed, to the Harrison
County Jail on or before September 27, 2017.” Id. at 38.
[11] On October 10, 2017, Wilcutt, by counsel, moved to continue the jury trial.
The trial court granted Wilcutt’s motion and rescheduled the trial for November
14, 2017. On November 1, 2017, the court held a hearing. Wilcutt’s counsel
appeared, but Wilcutt was absent. Counsel was unsure of Wilcutt’s location,
but the trial court noted Wilcutt had a pending case in Orange County with a
sentencing date of November 27, 2017. The trial court indicated it would
prepare a transport order.
[12] On December 18, 2017, Wilcutt, acting pro se although he was represented by
counsel, filed a motion for transport order. He claimed he was “currently
residing in the Orange County Jail,” and that the case that had caused his
incarceration in that county had been resolved. Id. at 51. He asked the trial
court to order the sheriff to transport him to the Harrison County Jail. The trial
court did not act on Wilcutt’s pro se motion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 4 of 7 [13] Next, Wilcutt obtained new counsel, who filed a Motion to Dismiss and a
request for a hearing. The trial court held a hearing. On May 10, 2018, the trial
court issued an order denying the Motion to Dismiss. On June 7, 2018, the trial
court issued findings of fact and conclusions thereon further explaining its
reasons for denying Wilcutt’s Motion to Dismiss. Wilcutt moved the trial court
to certify its order for interlocutory review, and the trial court agreed. Next,
Wilcutt asked this Court to accept review over the case, and the Court agreed.
This appeal followed.
[14] Wilcutt raises three issues, which we consolidate and restate as: whether the
trial court erred in denying his motion to dismiss. He claims the trial court
should have dismissed the State’s charges because the State did not bring him to
trial within seventy days of his request for a fast and speedy trial, in violation of
Indiana Criminal Rule 4(B).
[15] Where the facts are not in dispute, a speedy trial claim presents a question of
law. Cundiff v. State, 967 N.E.2d 1026 (Ind. 2012). We apply a de novo
standard of review to a trial court’s ruling on a question of law. Id.
[16] The Sixth Amendment and article I, section 12 of the Indiana Constitution
protect an accused’s right to a speedy trial. These constitutional provisions are
generally implemented through Indiana Criminal Rule 4(B). Cundiff, 967
N.E.2d at 1027. Rule 4(B) states, in relevant part:
If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 5 of 7 motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.
Rule 4(B) places an affirmative duty on the State to bring a defendant to trial,
but at the same time the rule is not intended to be a mechanism for providing
defendants a technical means to escape prosecution. Austin v. State, 997 N.E.2d
1027 (Ind. 2013).
[17] The State does not dispute that Wilcutt filed a request for a speedy trial on
November 4, 2016. Instead, the State claims Rule 4(B) is inapplicable here.
“[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge for
which he seeks a speedy trial, and as long as that requirement is met, the
availability of Rule 4(B) is not affected if the defendant is also incarcerated on
other grounds.” Cundiff, 967 N.E.2d at 1031.
[18] In Wilcutt’s case, he was not in custody in Harrison County when he filed his
request for a speedy trial. To the contrary, he conceded during a trial court
hearing in this case that he was never incarcerated in the Harrison County Jail
during the period of time relevant to this case. Tr. Vol. 2, p. 5. Wilcutt was
instead incarcerated in Crawford County on unrelated charges. He remained
incarcerated in Crawford County until at least April 5, 2017, when he withdrew
his request for a speedy trial in this case.
[19] Following the Indiana Supreme Court’s holding in Cundiff, we conclude
Wilcutt’s November 4, 2016, request for a speedy trial did not trigger Rule
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 6 of 7 4(B)’s seventy-day deadline because he was not incarcerated on the charges in
this case. Further, after he waived his right to a speedy trial, he did not renew
his request once he was in custody in Harrison County to answer for the current
charges.
[20] For the reasons stated above, we affirm the judgment of the trial court and
remand for further proceedings.
[21] Affirmed and remanded.
Mathias, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019 Page 7 of 7