Sep 10 2013, 5:36 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Crown Point, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KELVIN FULLER, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1212-CR-520
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-0708-FB-82
September 10, 2013
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Kelvin Fuller (Fuller), appeals the trial court’s denial of his
motion to discharge pursuant to Indiana Rule of Criminal Procedure 4(C).
We affirm.
ISSUE
Fuller raises one issue which we restate as: Whether the trial court abused its
discretion by denying his motion to discharge in accordance with Ind. Crim. Rule 4(C).
FACTS AND PROCEDURAL HISTORY
On August 3, 2007, the State filed an Information in Lake County superior court,
charging Fuller with Count I, robbery, a Class B felony, Ind. Code § 35-42-5-1; Count II,
confinement, a Class C felony, I.C. § 35-42-3-3; Count III, strangulation, a Class D
felony, I.C. § 35-42-2-9; and Count IV, intimidation, a Class D felony, I.C. § 35-45-2-1.
At the time the State filed the Information, Fuller was at large and the State requested that
a warrant be issued for his arrest. On December 15, 2008, Fuller was convicted of bank
robbery in Wyoming. Around January 9, 2009, Lake County, Indiana was notified that
Fuller was incarcerated in Laramie County, Wyoming. As a result, on January 13, 2009,
Lake County prosecutors sought his extradition by initiating interstate rendition
proceedings. However, instead of being extradited to Lake County, Fuller was convicted
of aggravated assault in Laramie County, Wyoming and sentenced to “not less than nine
(9) years and not more than ten (10) years” in the Wyoming Department of Correction.
(Appellant’s App. p. 39). Thereafter, On May 15, 2009, Fuller was extradited to Indiana.
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On June 17, 2009, Doug Barnes, the Unit Team Case Manager of the Hamilton County
Sheriff’s Department, read Fuller the Lake County warrant while also serving him with a
Hamilton County warrant. On April 30, 2010, Fuller was convicted of escape in LaPorte
County, Indiana and sentenced to four years in the Indiana Department of Correction.
Then, on September 21, 2009, February 2011, and May 2011, Fuller attended hearings in
Hamilton County on unrelated charges and was sentenced to four years executed. On
July 29, 2010, Fuller also appeared in Madison County court on unrelated charges.
On June 13, 2012, Fuller filed a motion to discharge the instant charges, which
originated in Lake County, pursuant to Crim. R. 4(C). On July 6, 2012, the State filed its
motion in opposition and the trial court denied Fuller’s motion the same day. On August
15, 2012, an initial hearing was held where Fuller was served with the arrest warrant. On
October 11, 2012, Fuller filed a motion to reconsider the trial court’s denial of his request
for discharge. On October 17, 2012, after a hearing, the trial court denied the motion to
reconsider and certified its ruling for interlocutory appeal. On February 4, 2013, we
accepted jurisdiction over the interlocutory appeal.
Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Fuller argues that the trial court abused its discretion by denying his motion to
discharge pursuant to Crim. R. 4(C), which provides:
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
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was not sufficient time to try him during such period because of congestion
of the court calendar. . . . Any defendant so held shall, on motion, be
discharged.
Criminal Rule 4 implements the defendant’s constitutional right to a speedy trial. State v.
Jackson, 857 N.E.2d 378, 380 (Ind. Ct. App. 2006). Under this rule, the State has an
affirmative duty to bring the defendant to trial within one year of being charged or
arrested, subject to the listed exceptions. Cook v. State, 810 N.E.2d 1064, 1065 (Ind.
2004). The defendant has no obligation to remind the court of the State’s duty, nor is he
required to take any affirmative action to see that he is brought to trial within the
statutory time period. State v. Smith, 495 N.E.2d 539, 541 (Ind. Ct. App. 1986). When a
defendant makes a motion for discharge pursuant to Criminal Rule 4, the burden is on the
defendant to show that he has not been timely brought to trial and that the defendant is
not responsible for the delay. Martin v. State, 419 N.E.2d 256, 259 (Ind. Ct. App. 1981).
Focusing on the start date of the one-year time period under Crim. R. 4(C), Fuller
argues that the “commencement of extradition proceedings constitutes an arrest in that it
is an order for a defendant’s return by the charging court.” (Appellant’s Br. p. 5). As
such, he maintains that he was in the “custody of the Indiana Department of Correction
for more than three years before he filed his [m]otion to [d]ismiss and the State took any
action on the case.” (Appellant’s Br. p. 5).
In Sweeney v. State, 704 N.E.2d 86, 100 (Ind. 1998), our supreme court held that
the Crim R. 4(C) clock begins when the defendant has been brought within Indiana’s
jurisdiction and control: “[A] defendant being brought to Indiana is equivalent to an
‘arrest’ and thus the one[-]year period for determining a violation of Crim. R. 4(C)
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commence[s][.]” Likewise, Indiana has long held that Crim. R. 4 does not apply when a
person is incarcerated in a foreign jurisdiction. Fisher v. State, 933 N.E.2d 526, 529 (Ind.
Ct. App. 2010). Accordingly, Fuller’s Crim. R. 4(C) clock commenced on May 15, 2009
when he returned to Indiana’s jurisdiction.
However, attempting to toll the one-year statutory term, the State now contends
that “[b]ecause the Lake County Prosecutor’s Office and the Lake County courts did not
have actual notice of [Fuller’s] whereabouts until approximately June 13, 2012, when he
filed his motion to dismiss, the trial court properly denied [Fuller’s] motion for
discharge.” (Appellee’s Br. p. 8).
In support of its argument, the State relies on Werner v. State, 818 N.E.2d 26 (Ind.
Ct. App. 2005), trans. denied. Werner was arrested in Randolph County and charged in
September 2000. Id. at 27. He appeared at his initial hearing where he requested a
continuance. Id. at 28. The trial court granted the continuance and subsequently
rescheduled several more times. Id. In November 2000, Werner was arrested in Wayne
County, and someone called the Randolph County clerk’s office to inform the office of
Werner’s incarceration. Id. When Werner failed to appear for a hearing in January 2001,
the Randolph County court rescheduled again. Id. Werner’s bond agent later called the
bailiff and informed him that Werner was incarcerated in Wayne County. Id. After
further delays, Werner filed a motion for discharge pursuant to Crim. R. 4(C) in March
2003. Id. The trial court denied the motion. Id. On appeal, the State argued that Werner
should be charged with 142 days—the time that passed between January 2001 when he
failed to appear for his initial hearing as he was incarcerated in Wayne County and the
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date when he was released from Wayne County jail—because Werner had failed to
provide written notice that he was incarcerated in Wayne County. Id. at 30.
Noting that Werner’s case in Randolph County was midstream when he was
incarcerated in Wayne County, i.e, Werner had been arrested, charged and appeared in
Randolph County by the time he was arrested in Wayne County, we held that Werner was
required to provide formal written notice of his incarceration to the trial court and the
State to avoid tolling of the Crim. R. 4(C) clock. Id. at 31. Otherwise, the Werner court
reasoned, there is simply no way to determine whether sufficient notice was given to the
trial court to notify it of the defendant’s whereabouts. Id. “Trial courts have substantial
case loads and complicated dockets to manage, and if we did not require that litigants
communicate with each other and the court formally and in writing, the system would
soon devolve into chaos.” Id. As such, the Werner court concluded that the Rule 4(C)
clock tolled for 142 days. Id. at 32. We find Werner to be inapposite as Fuller’s Lake
County case was not midstream when he was extradited to Indiana. In fact, Fuller had
not yet even appeared in the trial court.
More on point is Fueston v. State, 953 N.E.2d 545 (Ind. Ct. App. 2011). Fueston
was arrested in Jay County and charged with theft. Id. at 546. While out on bond, he
failed to appear at his pre-trial conference and he was later arrested in Delaware County
on an unrelated charge. Id. Fueston remained incarcerated in Delaware County and no
action was taken in Jay County until Fueston, acting pro se, filed a motion requesting
final disposition of charges/detainers in his Jay County case. Id. Fueston was appointed
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counsel, who filed a motion for discharge under Crim. R. 4(C), which was denied by the
trial court. Id.
Presenting evidence indicating that there had been a facsimile communication
between the Jay County and Delaware County jails, Feuston argued, among others, that
Jay County was aware of his whereabouts and could have brought him to trial within the
one-year period. Id. at 551. We disagreed and held that “the knowledge of a police or
correctional officer should not be imputed to the trial court or prosecutor in these
circumstances.” Id. We concluded that the purpose of Crim. R. 4(C) is to promote early
trials and not to discharge defendants. Id. Unnecessary delays will not be deterred by
granting discharges in cases where the trial court and prosecutor did not have actual
knowledge of the defendant’s whereabouts. Id. “This is true regardless of whether some
other agent of the State has this knowledge.” Id.
In a separate concurrence in result, Chief Judge Robb disputed the soundness of
the actual knowledge requirement by the trial court and prosecutor and instead cautioned
that the issue of notification is extremely fact sensitive. Id. at 553. She noted that if there
is indisputable evidence that officials at the Jay County jail were aware Feuston was
incarcerated in the Delaware County jail during the pendency of his Jay County case and
indisputable evidence of when they became aware of Feuston’s incarceration, the trial
court and prosecutor would be sufficiently notified of the defendant’s whereabouts to
commence the Rule 4(C) clock as of that date. Id.
Similarly, here, Fuller is pointing to what purports to be a facsimile
communication sent by the Lake County “Sheriff Warrants” to “Doug Barnes Del” on
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May 22, 2009. (Appellant’s App. p. 81). The facsimile details the Lake County cause
number, charges and the fact that a warrant was issued for Fuller’s arrest. Although the
remark section of the facsimile indicates that Fuller will be “going to Madison Co, IN
first” after being extradited to Indiana, there is no notation indicating when this would
occur. (Appellant’s App. p. 81). The communication fails to indicate who sent it, at
whose direction, and for what reason. Although the evidence reflects that Doug Barnes,
the Unit Team Case Manager of the Hamilton County’s Sheriff’s Department read Fuller
the Lake County warrant while also serving him with a Hamilton County warrant, this
fact does not reflect on the knowledge of the Lake County prosecutor or trial court.
It is Fuller’s burden on appeal to give us a record that supports his claims. See
Delao v. State, 940 N.E.2d 849, 852 (Ind. Ct. App. 2011). At best, Fuller presented us
with some evidence suggesting that Lake County sheriff’s department might have been
aware of Fuller’s incarceration in Indiana. However, because the record does not show
that the Lake County prosecutor or trial court were actually aware of Fuller’s return to
Indiana’s jurisdiction prior to Fuller’s filing of his motion to discharge on June 13, 2012,
the Crim. R. 4 (C) clock did not start until that date. Therefore, the trial court properly
denied Fuller’s motion.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly denied Fuller’s
motion to discharge in accordance with Crim. R. 4(C).
Affirmed.
KIRSCH, J. and ROBB, C. J. concur
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