MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 10 2017, 9:53 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
State of Indiana, October 10, 2017 Appellant-Defendant, Court of Appeals Case No. 10A04-1704-CR-782 v. Appeal from the Clark Circuit Court Autumn Spears, The Honorable Joseph P. Weber, Appellee-Plaintiff. Judge Trial Court Cause No. 10C03-1506-F6-839
Mathias, Judge.
[1] The State of Indiana appeals the trial court’s grant of Autumn Spears’s motion
for discharge pursuant to Indiana Criminal Rule 4(C).
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 1 of 7 [2] We reverse and remand.
Facts and Procedural History [3] On June 12, 2015, the State charged Spears with Level 6 felony battery. On the
same day, the State issued a criminal summons ordering Spears to appear in
court on July 14 for her initial hearing. On July 13, Spears requested and was
granted a continuance of the initial hearing, and it was moved to August 12. On
August 11, the initial hearing was again rescheduled, this time for September 2.
However, on September 1, Spears appeared in court where she waived the
formal reading of charges. A pretrial conference was set for September 22.
[4] On September 11, Spears requested a continuance of the pretrial conference and
it was rescheduled to October 22. On January 25, 2016, Spears and the State
reached a plea agreement, and a guilty plea hearing was set for April 21. On
April 21, Spears requested a continuance of the plea hearing. It was granted,
and the plea hearing was rescheduled to June 7.
[5] On June 7, the State withdrew from the plea agreement.1 The trial court set the
final pretrial conference for September 26 and the jury trial for October 27. At
the September 26 conference, Spears requested a new status review and a new
jury trial date. The trial court set a status conference for December 6, and
rescheduled the jury trial for January 12, 2017.
1 The State withdrew because “[the State was] contacted by the victim and there was some [] facts alleged that were not contained in the original police report.” Tr. Vol. III, p. 4.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 2 of 7 [6] On December 6, Spears again requested a new status date and that the jury trial
be continued to February 12, 2017.2 Two days later, on December 8, Spears
filed a Motion for Discharge Pursuant to Criminal Rule 4(C). The trial court
granted the motion before the State was able to respond.3 On January 10, 2017,
the State filed a Motion to Vacate the Order for Discharge, which was granted.
Subsequently, the State filed a motion to correct error and a brief in support.
The trial court set a hearing for March 20.
[7] At the March 20 hearing, both sides presented argument relating to the motion
for discharge. Two days later, the trial court reaffirmed its ruling discharging
Spears pursuant to Criminal Rule 4(C). The State now appeals.
Discussion and Decision [8] First, we note that Spears did not file an appellee's brief. In such cases, we will
not develop arguments for the appellee, and we apply a less stringent standard
of review. State v. Miracle, 75 N.E.3d 1106, 1108 (Ind. Ct. App. 2017). “We may
reverse if the appellant is able to establish prima facie error, which is error at
first sight, on first appearance, or on the face of it.” Wharton v. State, 42 N.E.3d
539, 541 (Ind. Ct. App. 2015). “The appellee's failure to provide argument does
not relieve us of our obligation to correctly apply the law to the facts in the
record in order to determine whether reversal is required.” Id.
2 The trial court never ruled on this request. 3 Clark County, Indiana, Local Rule LR10-AR00-7(B) gives opposing parties 10 days to respond to motions.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 3 of 7 [9] The State argues that the trial court erred in discharging Spears because the rule
period provided by Criminal Rule 4(C) had not expired, and moreover, that
Spears waived any request for a trial within the proscribed time period.
Criminal Rule 4(C) provides 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.
We review the trial court’s ruling on a Criminal Rule 4(C) motion de novo.
Baumgartner v. State, 891 N.E.2d 1131, 1133 (Ind. Ct. App. 2008). The one-year
period fixed by the rule will be extended only by the defendant’s own act or a
continuance had on the defendant’s own motion. Johnson v. State, 708 N.E.2d
912, 914 (Ind. Ct. App. 1999), trans. denied. “The purpose of this rule is to
assure criminal defendants of early trials, not to provide them with a technical
means of avoiding trial.” Id. at 915 (internal citations omitted).
[10] The following chronology sets out the delays relevant to our decision and
identifies which delays are attributable to each party.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 4 of 7 Description Date Chargeable to State Chargeable to Spears Initial Hearing Scheduled July 14, 2015 29 days Initial Hearing Continued August 12, 2015 20 days Initial Hearing Held September 1, 2015 10 days Spears's Motion to Continue September 11, 2015 the 41 days Pre-Trial Conference Held October 22, 2015 95 days Plea Agreement Reached January 25, 2016 134 days Plea Agreement Hearing June 7, 2016 State Withdraws Plea 111 days Spears's Motion for Status Review and September 26, 2016 New Jury Trial 73 days Spears's Motion for Discharge December 8, 2016 Total 236 days 277 days Days left to try Spears 129 days
[11] There is no Criminal Rule 4(C) violation here. Spears was first ordered to
appear in court on July 14, 2015, and this is when the Criminal Rule 4(C)
timetable began to run. See Johnson, 708 N.E.2d at 915 (holding that when a
summons is issued instead of an arrest warrant, the timetable of Criminal Rule
4(C) begins on the day the summons orders the defendant to appear in court).
Thus, the State was required to bring her to trial by July 14, 2016, barring any
acts by Spears that would extend the time period.
[12] On Spears’s motion for continuance, the initial hearing was rescheduled to
August 12, therefore, these 29 days are attributable to Spears. See Cook v. State,
810 N.E.2d 1064, 1066–67 (Ind. 2004) (holding that “when a defendant takes
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 10 2017, 9:53 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
State of Indiana, October 10, 2017 Appellant-Defendant, Court of Appeals Case No. 10A04-1704-CR-782 v. Appeal from the Clark Circuit Court Autumn Spears, The Honorable Joseph P. Weber, Appellee-Plaintiff. Judge Trial Court Cause No. 10C03-1506-F6-839
Mathias, Judge.
[1] The State of Indiana appeals the trial court’s grant of Autumn Spears’s motion
for discharge pursuant to Indiana Criminal Rule 4(C).
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 1 of 7 [2] We reverse and remand.
Facts and Procedural History [3] On June 12, 2015, the State charged Spears with Level 6 felony battery. On the
same day, the State issued a criminal summons ordering Spears to appear in
court on July 14 for her initial hearing. On July 13, Spears requested and was
granted a continuance of the initial hearing, and it was moved to August 12. On
August 11, the initial hearing was again rescheduled, this time for September 2.
However, on September 1, Spears appeared in court where she waived the
formal reading of charges. A pretrial conference was set for September 22.
[4] On September 11, Spears requested a continuance of the pretrial conference and
it was rescheduled to October 22. On January 25, 2016, Spears and the State
reached a plea agreement, and a guilty plea hearing was set for April 21. On
April 21, Spears requested a continuance of the plea hearing. It was granted,
and the plea hearing was rescheduled to June 7.
[5] On June 7, the State withdrew from the plea agreement.1 The trial court set the
final pretrial conference for September 26 and the jury trial for October 27. At
the September 26 conference, Spears requested a new status review and a new
jury trial date. The trial court set a status conference for December 6, and
rescheduled the jury trial for January 12, 2017.
1 The State withdrew because “[the State was] contacted by the victim and there was some [] facts alleged that were not contained in the original police report.” Tr. Vol. III, p. 4.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 2 of 7 [6] On December 6, Spears again requested a new status date and that the jury trial
be continued to February 12, 2017.2 Two days later, on December 8, Spears
filed a Motion for Discharge Pursuant to Criminal Rule 4(C). The trial court
granted the motion before the State was able to respond.3 On January 10, 2017,
the State filed a Motion to Vacate the Order for Discharge, which was granted.
Subsequently, the State filed a motion to correct error and a brief in support.
The trial court set a hearing for March 20.
[7] At the March 20 hearing, both sides presented argument relating to the motion
for discharge. Two days later, the trial court reaffirmed its ruling discharging
Spears pursuant to Criminal Rule 4(C). The State now appeals.
Discussion and Decision [8] First, we note that Spears did not file an appellee's brief. In such cases, we will
not develop arguments for the appellee, and we apply a less stringent standard
of review. State v. Miracle, 75 N.E.3d 1106, 1108 (Ind. Ct. App. 2017). “We may
reverse if the appellant is able to establish prima facie error, which is error at
first sight, on first appearance, or on the face of it.” Wharton v. State, 42 N.E.3d
539, 541 (Ind. Ct. App. 2015). “The appellee's failure to provide argument does
not relieve us of our obligation to correctly apply the law to the facts in the
record in order to determine whether reversal is required.” Id.
2 The trial court never ruled on this request. 3 Clark County, Indiana, Local Rule LR10-AR00-7(B) gives opposing parties 10 days to respond to motions.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 3 of 7 [9] The State argues that the trial court erred in discharging Spears because the rule
period provided by Criminal Rule 4(C) had not expired, and moreover, that
Spears waived any request for a trial within the proscribed time period.
Criminal Rule 4(C) provides 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.
We review the trial court’s ruling on a Criminal Rule 4(C) motion de novo.
Baumgartner v. State, 891 N.E.2d 1131, 1133 (Ind. Ct. App. 2008). The one-year
period fixed by the rule will be extended only by the defendant’s own act or a
continuance had on the defendant’s own motion. Johnson v. State, 708 N.E.2d
912, 914 (Ind. Ct. App. 1999), trans. denied. “The purpose of this rule is to
assure criminal defendants of early trials, not to provide them with a technical
means of avoiding trial.” Id. at 915 (internal citations omitted).
[10] The following chronology sets out the delays relevant to our decision and
identifies which delays are attributable to each party.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 4 of 7 Description Date Chargeable to State Chargeable to Spears Initial Hearing Scheduled July 14, 2015 29 days Initial Hearing Continued August 12, 2015 20 days Initial Hearing Held September 1, 2015 10 days Spears's Motion to Continue September 11, 2015 the 41 days Pre-Trial Conference Held October 22, 2015 95 days Plea Agreement Reached January 25, 2016 134 days Plea Agreement Hearing June 7, 2016 State Withdraws Plea 111 days Spears's Motion for Status Review and September 26, 2016 New Jury Trial 73 days Spears's Motion for Discharge December 8, 2016 Total 236 days 277 days Days left to try Spears 129 days
[11] There is no Criminal Rule 4(C) violation here. Spears was first ordered to
appear in court on July 14, 2015, and this is when the Criminal Rule 4(C)
timetable began to run. See Johnson, 708 N.E.2d at 915 (holding that when a
summons is issued instead of an arrest warrant, the timetable of Criminal Rule
4(C) begins on the day the summons orders the defendant to appear in court).
Thus, the State was required to bring her to trial by July 14, 2016, barring any
acts by Spears that would extend the time period.
[12] On Spears’s motion for continuance, the initial hearing was rescheduled to
August 12, therefore, these 29 days are attributable to Spears. See Cook v. State,
810 N.E.2d 1064, 1066–67 (Ind. 2004) (holding that “when a defendant takes
action which delays the proceeding, the time is chargeable to the defendant and
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 5 of 7 extends the one-year time limit, regardless of whether a trial date has been set at
the time or not.”). The initial hearing was again rescheduled to September 2,
however, Spears appeared in court on September 1. Although the record is not
clear, we find these 20 days attributable to the State.4 Ten more days are
attributable to the State up until September 11 when Spears filed a motion for
continuance for the pretrial conference. The pretrial conference was held on
October 22, and the 41 days in between are attributable to Spears. See id.
[13] On January 25, 2016, Spears and the State reached a plea agreement. The 95
days from the pretrial conference to the date a plea agreement was reached are
attributable to the State. At this point, the State had accrued 125 of its 365 days.
Therefore, as of January 25, 2016, the State had 240 more days, until
September 21, 2016, to bring Spears to trial.
[14] The plea hearing was held on June 7. The time period under Criminal Rule
4(C) was extended for the 134 days between January 25 and June 7. See Miller v.
State, 650 N.E.2d 326, 329 (Ind. Ct. App. 1995) (holding the time period under
Criminal Rule 4(C) is delayed between the time a court is informed of a plea
agreement and the trial court’s hearing on the plea agreement). When the State
withdrew from the plea agreement on June 7, the State still had 240 more days,
4 It is unclear from the record who filed for this continuance. The only note in the CCS states, “Reason: By Request.” Appellant’s App. pp. 110, 122. However, it is likely that this continuance is attributable to the State because the State did not file its response to discovery until August 13. Id. at 22–23. Further, there is no motion for continuance from Spears in the record to account for this delay.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 6 of 7 or until February 2, 2017, to bring Spears to trial. After the June 7 hearing, the
trial court set a trial date of October 27, 2016.5
[15] At the final pretrial conference on September 26, Spears requested a new status
review and a new jury trial date. The 111 days between the State’s rejection of
Spears’s plea and the September 26 conference are attributable to the State. On
Spears’s motion, the new trial was set for January 12, 2017. The 108 days from
the September 26 conference to the new trial date are attributed to Spears. See
Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999) (explaining that the time
between a defendant’s motion for continuance and a new trial date is
chargeable to the defendant).
[16] On December 8, 2016, when Spears filed a Motion for Discharge Pursuant to
Criminal Rule 4(C), the State still had 129 days, until April 16, 2017, to bring
Spears to trial. The trial was already set for January 12, 2017, which was well
within the adjusted Criminal Rule 4(C) deadline. Therefore, it was error for the
trial court to discharge Spears pursuant to Criminal Rule 4(C).
[17] Reversed and remanded.
Vaidik, C.J., and Crone, J., concur.
5 At the June 7 hearing, the trial date was set for a date beyond the original date required by Criminal Rule 4(C), July 14, 2016. Therefore, even if none of the delays were chargeable to Spears, it was at this June 7 hearing that Spears was required to object to the October 27, 2016, trial date if she believed it was outside the prescribed one-year period. State v. Black, 947 N.E.2d 503, 509 (Ind. Ct. App. 2011). Failure to object at the earliest opportunity results in Spears’s waiver of her right to be discharged under Criminal Rule 4(C). Id. At no point did Spears’s counsel object to a trial date.
Court of Appeals of Indiana | Memorandum Decision 10A04-1704-CR-782 | October 10, 2017 Page 7 of 7