Thang Cing Bik v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 2, 2023
• Docket: 22A-CR-01932
• Status: Published

Opinion

FILED Jun 02 2023, 9:01 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Theodore E. Rokita Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana J.T. Whitehead Lisa M. Johnson Deputy Attorney General Brownsburg, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thang C. Bik, June 2, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-1932 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose D. Salinas, Judge Appellee-Plaintiff The Honorable Ronnie Huerta, Magistrate Trial Court Cause No. 49D23-2103-F6-7860

Opinion by Judge Weissmann Judge Brown concurs and Judge Bailey dissents with a separate opinion.

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 1 of 12 Weissmann, Judge.

[1] Charged with three alcohol-related driving offenses, Thang Bik asked the trial

court for seven consecutive pretrial conferences due to communication issues

with his attorney. When those issues were finally resolved, Bik requested two

additional pretrial conferences because the State had not yet provided the

results of a blood test to which Bik submitted on the night of his arrest. Nearly

400 days after he was charged, Bik moved for discharge under Indiana Criminal

Rule 4(C), arguing that the State failed to bring him to trial within one year.

[2] The trial court denied Bik discharge, attributing to him the delay because he

requested the continuances that effected it. On interlocutory appeal, Bik claims

the State caused the delay by failing to produce his blood test results in a timely

manner. But only two of Bik’s continuance requests were based on that

outstanding discovery. The other seven were based on Bik’s communication

issues with his attorney; thus, the resulting delays were properly attributed to

Bik. Finding the State was well within Criminal Rule 4(C)’s one-year deadline

when Bik filed his motion for discharge, we affirm.

Facts [3] Bik submitted to a blood draw following his arrest for operating a vehicle while

intoxicated (OWI). The next day, March 15, 2021, the State charged Bik with

three alcohol-related offenses, including operating a vehicle with an “alcohol

concentration equivalent” of 0.15 grams or more. Ind. Code § 9-30-5-1(b). The

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 2 of 12 State also alleged that Bik had a prior OWI conviction, which enhanced the

three charges to Class D felonies. Ind. Code § 9-30-5-3(a).

[4] Bik speaks Burmese Hakka-Chin and required a translator throughout the trial

court proceedings. He failed to appear for his initial hearing on March 29, 2021.

At a rescheduled hearing on April 19, the trial court entered a plea of not guilty

and appointed Bik a public defender. Though a specific attorney within the

public defender agency was assigned to Bik’s case, substitute counsel covered

Bik’s first nine pretrial conferences.

[5] During the first seven of these conferences, substitute counsel simply requested

another pretrial conference as follows:

May 3 “Judge, this is a new case, so we’re asking for a Pretrial in due course. And we would like to do a contact exchange today.” Id. at 11.

June 14 “Your Honor, at this time, we would just be requesting a Pretrial Conference in due course so we can get Mr. Bik and [assigned counsel] on the same page.” Id. at 17.

July 26 “Your Honor, we’re just asking for a pretrial in due course, and we would like to schedule an interpreter meeting with Mr. [Bik], here.” Id. at 23.

September 13 “Judge, this is [assigned counsel’s] case. They did have a meeting with an interpreter, uhm, the client didn’t show up, so we just need to reschedule that. We just need a pretrial in due course to handle that business.” Id. at 29.

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 3 of 12 October 18 “Judge, [assigned counsel] has been trying to set up a time uhm with Mr. Bik with an interpreter, uhm, still working on that. Just asking for a pretrial, not a trial, today.” Id. at 3

November 8 “Judge, we’re requesting another Pretrial Conference in-person.” Id. at 40.

December 20 “Judge, this is [assigned counsel’s] old case. I have given him [another public defender’s] information to see who the new assigned attorney will be. We’re just asking for a pretrial in due course.” Id. at 45.

[6] Neither party ever requested a trial date. By Bik’s eighth pretrial conference on

January 31, 2022, his case had been reassigned to another attorney within the

public defender agency. Still, substitute counsel appeared and requested another

pretrial conference as follows:

Judge, this is [reassigned counsel’s] case. She sent me some notes indicating that she has great contact through our interpreter, uhm, waiting on labs. They have an interpreter call setup, a meeting, on Friday. So, we just need a pretrial thereafter.

Id. at 50 (emphasis added). Likewise, at Bik’s ninth pretrial conference on

March 14, 2022, substitute counsel stated: “Judge, [assigned counsel] has . . .

requested laboratories and she’s waiting on those. She is just requesting another

pretrial, not a trial, today.” Id. at 55 (emphasis added).

[7] On April 18, 2022, the parties appeared for a tenth pretrial conference, during

which Bik’s assigned counsel advised the trial court that Bik was still awaiting

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 4 of 12 his blood test results. Later that day—398 days after Bik was charged—Bik filed

a motion for discharge under Indiana Criminal Rule 4(C), arguing that the State

failed to bring him to trial within one year. The State received Bik’s blood test

results from its laboratory two days later.

[8] At the discharge hearing, the trial court recognized that the State had an

affirmative duty to provide Bik with his blood test results under local rules.1 The

court, however, characterized Bik’s decision to request pretrial conferences,

rather than a trial date, as “trial strategy.” Tr. Vol. II, p. 81. Ultimately, the trial

court attributed the delay to Bik, denied his motion for discharge under

Criminal Rule 4(C), and certified the denial for interlocutory appeal.

[9] In its certification order, the trial court specifically identified the following issue

for appellate review:

Whether credit time (sic) should be counted for criminal rule 4 (CR4) purposes under the following factual basis:

a. The Court asked the Defense on the record during various pre-trial conferences if they are requesting a trial date (bench or jury) in the pending criminal case. The Defense informed the Court that they were not requesting a trial date (bench or jury) because of outstanding discovery.

1 LR49-CR00-107(a) provides, in pertinent part: “The State shall disclose the following material and information within its possession or control: . . . (4) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.”

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 5 of 12 b. The Defense had requested specific discovery from the State on various occasions (but no motion to compel was ever requested by the Defense). Eventually, the State provided the discovery but gave no reason as to the delay and did not provide the discovery until a substantial amount of time had elapsed in the age of the case.

App. Vol. II., p. 69.

Discussion and Decision [10] As an initial matter, we observe that Indiana Appellate Rule 14(B) permits

appeals from “interlocutory orders if the trial court certifies its order and the

Court of Appeals accepts jurisdiction over the appeal.” Though it is often

helpful if the trial court identifies specific questions of law raised by its

interlocutory order, “[t]he language of Rule 14(B) clearly identifies certification

of an order, not of specific issues or questions.” State v. Keller, 845 N.E.2d 154,

160 (Ind. Ct. App. 2006) (citing Budden v. Bd. of Sch. Comm’rs, 698 N.E.2d 1157,

1166 n.14 (Ind. 1998)). Thus, appellate courts are under “no obligation to

accept the issue as framed by the trial court or to answer it.” Id.

[11] We view the issue presented by Bik’s interlocutory appeal more broadly than

the trial court specified in its certification order. We therefore reframe the issue

simply as whether the trial court erred in denying Bik’s motion for discharge

under Indiana Criminal Rule 4(C).

[12] Criminal Rule 4(C) “places an affirmative duty on the State to bring a

defendant to trial within one year of being charged or arrested, but allows for

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 6 of 12 extensions of that time for various reasons.” Cook v. State, 810 N.E.2d 1064,

1065 (Ind. 2004). The rule specifically states:

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 . . . .

Ind. Crim. Rule 4(C). “[I]f a delay is caused by the defendant’s own motion or

action, the one-year time limit is extended accordingly.” Cook, 810 N.E.2d at

1066.

[13] Under Criminal Rule 4(C), a defendant generally is chargeable with a delay

effected by his own motion for a continuance. State ex rel. O’Donnell v. Cass

Super. Ct., 468 N.E.2d 209, 210 (Ind. 1984). However, our appellate courts have

recognized a “discovery exception” to this general rule. Wellman v. State, 22A-

CR-01673, slip op. at 6 (Ind. Ct. App. May 10, 2023) (citing Carr v. State, 934

N.E.2d 1096, 1101 (Ind. 2010)). “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, the resulting delay is not chargeable to the

defendant.” Carr, 934 N.E.2d at 1101; see also Stephenson v. State, 742 N.E.2d

463, 488 (Ind. 2001).

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 7 of 12 [14] There is no dispute that Bik requested the continuances that pushed his case

past Criminal Rule 4(C)’s one-year deadline. Citing the discovery exception,

Bik claims these continuances were not attributable to him because “[t]hey were

the direct result of the State’s failure to produce the blood test results in a timely

fashion.” Appellant’s Br., p. 13.

[15] This Court has applied the discovery exception in several cases in which a

defendant requested a continuance due to the State’s failure to provide test

results it had not yet received from a state laboratory. See Wellman, slip op. at 8.

But in each of these cases, the defendant specifically cited the State’s

outstanding discovery as the basis for the requested continuance. In Wellman,

for example, an OWI defendant requested eight consecutive pretrial

conferences, each time specifying that he was still awaiting blood test “labs” or

“lab results” from the State. Wellman, slip op. at 3.

[16] Unlike the defendant in Wellman, Bik cited the State’s outstanding “labs” or

“laboratories” as the basis for only two of his nine continuance requests. Tr.

Vol. II, pp. 50, 55. Bik based his other seven requests on communication issues

with his attorney; thus, the resulting continuances were not covered by the

discovery exception. Cf. Wellman, slip op. at 12 (“Because Wellman’s

continuances were based on the State’s failure to produce his blood test results,

the 396-day delay effected by those continuances was not attributable to

Wellman.”).

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 8 of 12 [17] We attribute to Bik the delay effected by his seven non-discovery-related

continuances, which we calculate as the 273 days between the first pretrial

conference on May 3, 2021, and the eighth pretrial conference on January 31,

2022. Bik also concedes that he should be attributed the 21-day delay between

his missed initial hearing on March 29, 2021, and his rescheduled hearing on

April 19, 2021. Thus, the State was well within Criminal Rule 4(C)’s one-year

deadline when Bik filed his motion for discharge. 2

[18] Concluding Bik was not entitled to discharge under Criminal Rule 4(C), we

affirm the trial court’s judgment and remand for further proceedings.

Judge Brown concurs. Judge Bailey dissents with a separate opinion.

2 We do not attribute to Bik, however, the 14 days between the filing of charges on March 15, 2021, and the missed initial hearing on March 29, 2021; the 14 days between the rescheduled initial hearing on April 19, 2021, and the first pretrial conference on May 3, 2021; or the 76 days between the eighth pretrial conference on January 31, 2022, and the filing of Bik’s motion for discharge on April 18, 2022. The latter 76 days fall under the discovery exception. See Wellman, slip op. at 12.

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 9 of 12 Bailey, Judge, dissenting.

[19] I respectfully dissent. At the hearing on motion for discharge, the State agreed

with Bik that the trial court was tasked with making a calculation of time

attributable to discovery delay, and the interlocutory order on appeal addresses

only discovery delay. I am not persuaded that we can comb through the record

to find an alternative basis for delay, in light of our standard of review. That is,

When evaluating a Criminal Rule 4 motion for discharge, “in cases where the issue is a question of law applied to undisputed facts, the standard of review—like for all questions of law—is de novo.” Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013). However, in cases where a trial court makes a factual finding of congestion or emergency based on disputed facts, the standard of review for appellate courts is not abuse of discretion, but the clearly erroneous standard. Id. at 1040.

We review a trial court’s ruling on a motion to dismiss a charging information for an abuse of discretion. State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017). A trial court abuses its discretion when it misinterprets the law. Id.

State v. Larkin, 100 N.E.3d 700, 703 (Ind. 2018).

[20] And should we comb the record for alternative bases, “[d]elay caused by a

change of counsel will be charged to the defendant only where actual delay

results.” Biggs v. State, 546 N.E.2d 1271, 1275 (Ind. Ct. App. 1989). Here, it

was apparent from the April 19, 2021, initial hearing that the State had no

blood test results. None were forthcoming, even as Bik encountered

communication difficulties with his defense team. With that background, the

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 10 of 12 trial court made a factual determination as to Bik’s motivation: “The Defense

informed the Court that they were not requesting a trial date (bench or jury)

because of outstanding discovery.” Appealed Order at 1. The trial court made

a determination that the root cause of delay was the absence of discovery. I

cannot conclude that the trial court misinterpreted the law or clearly erred in its

fact-finding.

[21] To be sure, Bik could have requested a speedy trial without having received

discovery from the State. But that is an untenable position for a defendant

when the State has simply failed to marshal its proof. “To put the defendants in

a position whereby they must either go to trial unprepared due to the State’s

failure to respond to discovery requests or be prepared to waive their rights to a

speedy trial, is to put the defendants in an untenable situation.” Biggs, 546

N.E.2d at 1275. Time after time, as the parties appeared at status conferences

with no lab results or trial date in sight, the trial court asked Bik what he

wanted. Bik’s counsel and successive counsel studiously avoided explicit

requests for continuances; counsel clarified that the defense was not requesting

a trial setting; and counsel acknowledged that pretrial hearings would ensue. I

am not persuaded that a defendant is required to do more to avoid having time

charged to him when it is evident that the State is unprepared to take him to

trial.

[22] At the hearing on motion for discharge, the State put its cards on the table.

When the trial court asked the prosecuting attorney: “Do you have the labs,”

she responded: No, Judge. But if we set it for trial, I can get the labs within a

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 11 of 12 week.” (Tr. Vol. II, pg. 83.) 3 The application of Criminal Rule 4 should not

distill to gamesmanship. The pertinent inquiry is whether there was “delay

[other than nineteen days] caused by [Bik’s] act?” Crim. R. 4(C). In my

opinion, there was not, and Bik is entitled to discharge.

3 Apparently, the State had been provided with blood test results. On April 20, 2022, the State filed its notice of results and motion for license suspension.

Court of Appeals of Indiana | Opinion 22A-CR-1932 | June 2, 2023 Page 12 of 12