State of Indiana v. Luke Bryon Fahringer

• Court: Indiana Court of Appeals
• Decided: September 12, 2019
• Docket: 18A-CR-2985
• Status: Published

Opinion

FILED Sep 12 2019, 11:04 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Jonathan A. Bont Attorney General of Indiana Thomas D. Perkins Mackenzie E. Skalski Justin F. Roebel Paganelli Law Group Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

State of Indiana, September 12, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CR-2985 v. Appeal from the Tippecanoe Superior Court Luke Bryon Fahringer, The Honorable Randy Williams, Appellee-Defendant. Judge Trial Court Cause No. 79D01-1610-F3-39

Riley, Judge.

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Plaintiff, State of Indiana (the State), brings this interlocutory appeal

of the trial court’s Suppression Order.

[2] We dismiss.

ISSUE [3] Although the State presents us with two issues on appeal, Appellee-Defendant,

Luke Fahringer (Fahringer), filed a motion to dismiss the instant appeal in

which he presented one issue, which we find dispositive and restate as:

Whether the trial court abused its discretion when it certified its Suppression

Order for interlocutory appeal.

FACTS AND PROCEDURAL HISTORY [4] On November 19, 2015, a detective with the Tippecanoe County Sheriff’s

Department took a statement from an alleged victim, C.B., who reported that

two men, whom she identified from a photographic array as Fahringer and

Henry Williams (Williams), had taken her against her will and forced her to

submit to a number of sexual acts. These forced sexual acts reportedly took

place at a home on Rockingham Lane in Lafayette, Indiana, and in Fahringer’s

truck. C.B. also reported that Fahringer used a cell phone to photograph C.B.’s

identification card and threatened to kill her family if she reported the offenses.

[5] Later that morning, investigators applied for a search warrant for the home on

Rockingham Lane, Fahringer’s truck, Fahringer and Williams’ cell phones, and

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 2 of 11 to take DNA samples from Fahringer and Williams. After the search warrant

application had been submitted but before the warrant was granted, at

approximately 10:30 a.m., investigators encountered Fahringer outside of the

home on Rockingham Lane. Fahringer had his cell phone in his possession.

Fahringer was not under arrest and was free to leave; however, the investigators

informed Fahringer that they had applied for a search warrant and wished to

take custody of his cell phone. Fahringer was allowed to use his cell phone to

access telephone numbers and contact his attorney before surrendering it. The

search warrant was issued at approximately 11:50 a.m., and a search of

Fahringer’s cell phone revealed a photograph of C.B.’s identification card.

[6] On October 14, 2016, the State filed an Information, charging Fahringer with

strangulation, intimidation, kidnapping, conspiracy to commit rape, two

Counts of criminal confinement, and three Counts of rape. On July 6, 2018,

Fahringer filed a motion seeking to suppress evidence garnered following the

warrantless seizure of his cell phone, which he argued was unreasonable under

our federal and state Constitutions. 1 On July 9, 2018, after the selection of a

jury but before the jury was sworn, the trial court held a hearing on the

suppression motion. Fahringer’s trial was postponed.

1 The index to the State’s Appendix lists an “Order on Motion to Suppress Evidence” dated July 6, 2018, at page 72, but the order entered on that day by the trial court pertained to another pending motion. (Appellant’s App. Vol. I, p. 3; Vol. II, p. 72). The trial court did not rule on Fahringer’s Motion to Suppress on July 6, 2018.

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 3 of 11 [7] On July 12, 2018, the State filed its Motion for Time Extension Regarding

Interlocutory Appeal in which it averred as follows:

1. On July 10, 2018[,] the [c]ourt granted [Fahringer’s] motion to suppress the cell phone seizure in the instant cause on the record. 2 The State indicated it would like to seek interlocutory appeal of that decision.

2. At that time, the [c]ourt indicated to the State it would like a formal, written motion for interlocutory appeal be [sic] filed by Friday, July 13, 2018.

3. Indiana Rules of Appellate Procedure Rule 14 indicates that “[a] motion requesting certification of an interlocutory order must be filed within thirty (30) days after the interlocutory order is noted in the Chronological Case Summary unless the trial court, for good cause, permits a belated motion.” The [c]ourt’s order has not yet been attached to the Chronological Case Summary at the time of the filing of this motion.

4. Additionally, the State has been in contact with the Indiana Attorney General’s Office which handles appellate matters for the State of Indiana. The Attorney General’s office would like a chance to review the [c]ourt’s order before proceeding in this matter.

5. For the above reasons, the State requests that it be allowed to file its motion for interlocutory appeal later than Friday July

2 The trial court’s oral ruling was not transcribed for appeal.

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 4 of 11 13, 2018, but in accordance with Indiana Rules of Appellate Procedure Rule 14.

(Appellant’s App. Vol. II, p. 78). On July 16, 2018, the trial court granted the

State’s motion seeking to file its request for interlocutory certification later than

July 13, 2018. On July 26, 2018, the trial court entered its written order

granting Fahringer’s Motion to Suppress, finding that the exigent circumstances

exception to the warrant requirement did not apply.

[8] On August 21, 2018, the State filed a motion to reconsider the trial court’s grant

of Fahringer’s Motion to Suppress in which it argued new bases in opposition

to suppression, namely that the search incident to arrest and plain view

exceptions applied to the warrantless seizure of Fahringer’s cell phone. On

September 21, 2018, the trial court held a hearing on the State’s Motion to

Reconsider, and, on October 10, 2018, the trial court denied the State’s Motion

to Reconsider.

[9] On November 5, 2018, the State filed its Motion to Certify Orders for

Interlocutory Appeal in which it averred that its Motion to Certify the trial

court’s Suppression Order was

not untimely due to the State’s initial oral request regarding that order as well as the State awaiting the [c]ourt’s ruling on the its [sic] timely filed Motion to Reconsider. This request is filed within thirty (30) days after the order denying the Motion to Reconsider appeared on the Chronological Case Summary. As such, the State submits there is good cause for granting this motion in regards to the [c]ourt’s order granting [Fahringer’s] Motion to Suppress.

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 5 of 11 (Appellant’s App. Vol. II, p. 102). On November 19, 2018, the trial court

certified for interlocutory appeal its July 26, 2018, Suppression Order and its

October 10, 2018, order denying the State’s Motion to Reconsider. The trial

court found “good cause” to grant certification in that “the State initially orally

indicated it intended to request an interlocutory appeal of the [c]ourt’s oral

ruling granting [Fahringer’s] Motion to Suppress.” (Appellant’s App. Vol. II, p.

104). The trial court also found that the State had subsequently filed a timely

motion to reconsider and had filed its request for interlocutory appeal

certification within thirty days of the denial of that motion to reconsider.

[10] On December 14, 2018, the State moved this court to accept jurisdiction over

this interlocutory appeal. On January 18, 2019, the court’s motions panel

granted the State’s motion and accepted jurisdiction. On January 31, 2019, the

State filed its Notice of Appeal and thereafter filed a timely Brief of Appellant.

On May 23, 2019, Fahringer filed his Brief of Appellee and a separate motion

to dismiss in which he argued that the trial court abused its discretion in

allowing the State to belatedly seek certification of its interlocutory Suppression

Order. On May 30, 2018, the State filed its response to Fahringer’s Motion to

Dismiss. On June 21, 2019, the court’s motions panel held Fahringer’s Motion

to Dismiss in abeyance for resolution by the panel assigned to resolve the

instant appeal.

[11] The State now appeals. Additional facts will be provided if necessary.

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 6 of 11 DISCUSSION AND DECISION [12] The State has sought a discretionary appeal from an interlocutory suppression

order. See Ind. Appellate Rule 14(B). The initiation of such an appeal is a two-

step process, the first step of which is to obtain certification of the interlocutory

order by the trial court. App. R. 14(B)(1). A motion for certification of an

interlocutory order must be filed with the trial court within thirty days of the

entry of the order on the case’s Chronological Case Summary (CCS) “unless

the trial court, for good cause, permits a belated motion.” App. R. 14(B)(1)(a).

When a trial court grants a belated motion, it must make a finding that its

certification is based on a showing of good cause, and it must set forth its basis

for that finding. Id. We review a trial court’s finding of good cause for an

abuse of discretion. State v. Foy, 862 N.E.2d 1219, 1224 (Ind. Ct. App. 2007),

trans. denied. An abuse of discretion occurs when the trial court’s decision to

certify is clearly against the logic and effect of the facts and circumstances

before the trial court or the reasonable and probable deductions to be drawn

therefrom. Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d 515, 518 (Ind. Ct.

App. 2010).

[13] Here, the trial court entered its Suppression Order on the CCS on July 26, 2018.

The State did not file its request to certify the Suppression Order for

interlocutory appeal until November 5, 2018. The State’s request for

certification was filed more than thirty days after the entry of the interlocutory

order, and, therefore, was untimely. See App. R. 14(B)(1)(a). The trial court

explained in its order granting the State’s request for certification that good

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 7 of 11 cause for doing so existed because the State had notified the trial court orally of

its intention to pursue an appeal after the trial court initially orally granted

Fahringer’s Motion to Suppress on July 10, 2018. It also found that the State

had pursued a motion to reconsider and filed its request for certification within

thirty days of the denial of that motion to reconsider. In his Motion to Dismiss,

Fahringer argues that the trial court abused its discretion in certifying the State’s

belated request because the State’s oral notification to the trial court of its

intention to pursue an interlocutory appeal did not constitute good cause and

the State’s Motion to Reconsider did not toll the time for the State to initiate its

appeal.

[14] We agree with Fahringer. Indiana Appellate Rule 14(B)(1)(e) provides that if a

trial court fails to rule on or set a certification motion for a hearing within thirty

days of its filing, it is deemed denied. Had the trial court considered the State’s

oral notification on July 10, 2018, of its intention to pursue an interlocutory

appeal to be a request for certification, that request would have been deemed

denied after thirty days elapsed—here, on August 9, 2018—without the trial

court ruling on the motion or setting it for a hearing. After a certification

request is deemed denied by operation of Rule 14(B)(1)(e), a trial court may not

resuscitate that request later by belatedly granting the motion. Wise v. State, 997

N.E.2d 411, 413 (Ind. Ct. App. 2013). However, even if the trial court had not

construed the State’s oral notification of its intent to seek certification as an

actual request to certify, to find such an oral notification to constitute good

cause for a belated filing is to essentially allow a litigant to ignore the Rules of

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 8 of 11 Appellate Procedure. This is not a case where the State was unaware of the

strictures of Appellate Rule 14. The State quoted Appellate Rule 14 when it

sought and was granted an extension of time of the trial court’s truncated July

13, 2018, deadline for filing a certification request, and the State represented it

would file its certification request “in accordance with Indiana Rules of

Appellate Procedure Rule 14.” (Appellant’s App. Vol. II, p. 78).

[15] Instead of filing a motion for certification, the State chose to file a motion to

reconsider. Indiana Rule of Trial Procedure 53.4(A) provides that a motion to

reconsider “shall not delay the trial or any proceedings in the case, or extend

the time for any further required or permitted action, motion, or proceedings

under these rules.” This court has noted that, although a party may properly

file a motion with the trial court to reconsider an interlocutory ruling, the filing

of such a motion is “fraught with danger” because it does not extend the time

within which to seek an appeal of an interlocutory order. Johnson v. Estate of

Brazill, 917 N.E.2d 1235, 1241 (Ind. Ct. App. 2009). Here, the State chose to

pursue a motion to reconsider instead of immediately filing a request for

certification of the trial court’s suppression order, which it was entitled to do.

Id. However, the filing of that motion did not toll the time within which the

State was required to file a certification request, and, therefore, contrary to the

trial court’s conclusion here, it could not constitute good cause for a belated

certification request.

[16] In addition, a motion to reconsider is deemed denied if not ruled upon by the

trial court within five days. T.R. 53.4(B). The State’s Motion for

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 9 of 11 Reconsideration, filed August 21, 2018, was deemed denied five days later by

operation of Trial Rule 53.4, and so its request for certification, filed on

November 5, 2018, was not timely as to the denial of that trial court order.

Even so, the State contends that it argued different grounds against suppression

in its Motion to Reconsider and the trial court had the authority to create a

new, appealable order by ruling on that motion. This argument is unavailing,

as the trial court did not grant the Motion to Reconsider, and, thus, its

Suppression Order did not change. See Johnson, 917 N.E.2d at 1241 (rejecting

the argument that an order denying a motion to clarify and simply affirming the

trial court’s previous ruling created a new, appealable order). We find,

therefore, that neither rationale relied upon by the trial court in granting

certification was within its discretion and that the State failed to show good

cause for the belated filing of its request for certification. See Foy, 862 N.E.2d at

1224.

[17] Although the failure to initiate a timely interlocutory appeal does not deprive

this court of jurisdiction, it results in forfeiture of the right to appeal absent

“extraordinarily compelling reasons.” Snyder v. Snyder, 62 N.E.3d 455, 458

(Ind. Ct. App. 2016). In its response to Fahringer’s Motion to Dismiss, the

State argues that “[m]uch of the delay occurred while the parties where [sic]

actively litigating the motion to reconsider including briefing and a hearing[,]”

an argument which we find to be equally as unpersuasive for showing a

compelling reason to ignore the State’s forfeiture of its appellate right as we did

for showing good cause for filing a belated certification request. (Appellee’s

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 10 of 11 Response to Motion to Dismiss, pp. 1-2). The State also argued in its response

to the Motion to Dismiss that it, the trial court, and Fahringer, all agreed that

the State would be allowed to seek interlocutory appeal of the trial court’s

Suppression Order. Our review of the portion of the transcript cited by the

State in support of Fahringer’s consent to an interlocutory appeal does not

reveal that the parties specifically discussed the availability of interlocutory

appeal. However, even if the parties and the trial court had all agreed that the

State could pursue an interlocutory appeal after the resolution of the State’s

Motion to Reconsider, the State does not offer us any authority for its apparent

proposition that the Indiana Rules of Trial Procedure and Appellate Procedure

may be flouted by mutual agreement. We find that the State has not presented

us with any extraordinarily compelling reason to disregard its failure to pursue

timely certification of the trial court’s suppression order, and we dismiss this

appeal for procedural default.

CONCLUSION [18] Based on the foregoing, we conclude that the trial court’s certification of its

Suppression Order for interlocutory appeal was an abuse of its discretion, and

we find no compelling reason to disregard the State’s failure to initiate a timely

interlocutory appeal.

[19] Dismissed.

[20] Vaidik, C. J. and Bradford, J. concur

Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 11 of 11