Oct 14 2015, 9:28 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Travis Allen, October 14, 2015
Appellant-Defendant, Court of Appeals Case No.
49A05-1410-CR-501
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Linda E. Brown,
Appellee-Plaintiff. Judge
Cause No. 49F10-1112-CM-86414
Najam, Judge.
Statement of the Case
[1] Travis Allen appeals his convictions for operating a vehicle while intoxicated,
as a Class A misdemeanor; driving with a suspended license, a Class A
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misdemeanor; and driving without a license, as a Class C felony; following a
bench trial.1 Allen presents two issues for our review:
1. Whether the trial court erred when it denied his motion for
discharge pursuant to Criminal Rule 4(C).
2. Whether the delay in bringing him to trial violated his
right to a speedy trial as guaranteed by the United States
and Indiana Constitutions.
We affirm.
Facts and Procedural History
[2] On December 9, 2011, Indiana State Police Trooper Chris Townsend arrested
Allen for driving while intoxicated. Also on that date, the State charged Allen
with four offenses related to that incident, and Allen was released on bond.
Allen subsequently was arrested and jailed for an unrelated offense in Cause
No. 49G20-1204-FB-25327 (“FB-25327”).2 And on May 15, 2012, pursuant to
a local rule, the trial court transferred the instant case to the trial court handling
FB-25327. After Allen pleaded guilty in FB-25327, and after the trial court
sentenced him to ten years in that case, the instant case was transferred back to
the original trial court on October 15, 2012. At a pre-trial conference on
October 16, the trial court scheduled a bench trial for January 23, 2013. During
1
The parties do not explain how Allen could be convicted both of driving with a suspended license and
driving while never having had a valid license. Those two offenses appear to be incompatible.
2
The parties do not provide any information about the offense or offenses alleged in that unrelated cause.
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that pre-trial conference, Allen notified the trial court that he had just been
sentenced to ten years in the Department of Correction in the other cause, and
the court reporter advised Allen and his counsel that his counsel would have to
file a transport order for Allen to be present at his trial.
[3] On January 23, 2013, the State and defense counsel were present and ready for
trial, but Allen was not there.3 The trial court issued a “Rearrest Warrant with
Bond set in the amount of $5000[.]” Appellant’s App. at 7.
[4] On September 5, 2013, Allen filed a pro se Verified Petition for Resolution of
Detainer. On September 10, the trial court struck Allen’s pro se petition
because he was represented by counsel. And on April 23, 2014, Allen, by his
counsel, filed his motion to discharge pursuant to Criminal Rule 4(C). The trial
court denied that motion following a hearing on June 25. Following a bench
trial on October 8, 2014, the trial court found Allen guilty on all four charges,
but entered judgment on only three, namely, operating a vehicle while
intoxicated, as a Class A misdemeanor; driving with a suspended license, a
Class A misdemeanor; and driving without a license, as a Class C felony. The
trial court sentenced Allen accordingly. This appeal ensued.
3
At the subsequent hearing on Allen’s Criminal Rule 4(C) motion, the State argued that defense counsel did
not appear to know where Allen was and, in any event, did not notify the court that Allen was incarcerated
on that date.
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Discussion and Decision
Issue One: Criminal Rule 4(C)
[5] Allen contends that he is entitled to discharge under Indiana Criminal Rule
4(C). Criminal Rule 4(C) provides that a defendant may not be held to answer
a criminal charge for greater than one year unless the delay is caused by the
defendant, emergency, or court congestion. Curtis v. State, 948 N.E.2d 1143,
1148 (Ind. 2011). We review a trial court’s ruling on a Rule 4(C) motion for
abuse of discretion. Id. at 1149.
[6] Allen maintains that, from the time that the charges were filed against him on
December 9, 2011, until his first trial date on January 23, 2013, there are “294
days attributable to the State for the delay.”4 Appellant’s Br. at 6. And Allen
contends that, because “the State and court w[ere] on notice that [Allen] was in
the Department of Correction[] on January 23, 2013[,] and he was not brought
to trial until the court set the matter for trial on June 25, 2014[,]” an additional
502 days of delay are charged to the State, for a total of 796 days charged to the
State. Id. at 7. In the alternative, Allen contends that he gave written notice to
the State and the trial court that he was incarcerated on September 10, 2013, 5
4
The State contends that it should only be charged with 153 days up to January 23, 2013, but, for ease of
discussion on appeal, we accept the defendant’s calculations of the delays leading up to January 23, 2013.
5
That Verified Petition is file-stamped September 5, 2013.
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when he filed his Verified Petition for Resolution of Detainer. Thus, he
alternatively maintains that at least 566 days are chargeable to the State.
[7] But the State maintains that, because on January 23, 2013, “[n]either the State
nor the trial court w[as] advised that Allen was still in the DOC, . . . the time
that follows was attributable to Allen’s actions of failing to appear for trial.”
Appellee’s Br. at 11. In support of that contention, the State points out that, at
the June 25, 2014, hearing on the motion for discharge, the trial court stated
that, had defense counsel informed the trial court on January 23, 2013, that
Allen was incarcerated on that date, it “would have documented that[,]” and
there was no such documentation. Tr. at 22. Thus, Allen’s failure to appear at
his trial was unexplained. Allen’s next contact with the court after the January
2013 trial date was his pro se September 5, 2013, Verified Petition for
Resolution of Detainer. In that petition, Allen stated that he was incarcerated.
However, the trial court struck that petition because Allen was represented by
counsel. Our supreme court has stated that, “once counsel [is] appointed, [a
d]efendant sp[eaks] to the court through counsel.” Underwood v. State, 722
N.E.2d 828, 832 (Ind. 2000). Thus, here, the trial court was not required to
accept the petition for filing and properly struck it. See id; see also Schepers v.
State, 980 N.E.2d 883, 887 (Ind. Ct. App. 2012) (holding trial court properly
denied defendant’s motion to dismiss under Criminal Rule 4(B)(1) where he
had filed motion pro se while represented by counsel).
[8] Hence, the first time the State and the trial court received actual notice of
Allen’s incarceration was on April 23, 2014, when Allen filed his motion for
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discharge. The State contends, then, that Allen is charged with the delay from
January 23, 2013, until April 23, 2014, as well as the delay from April 23, 2014,
until June 25, 2014, the date of the hearing on Allen’s motion, for a total of 518
days. The State concedes that it should be charged for the delay from June 25,
2014, until July 29, 2014, when Allen requested another continuance, which
represents thirty-four days. The State contends that Allen is charged with the
thirty-six day delay from July 29, 2014, until September 3, 2014, because of his
motion to continue his trial, which had been scheduled for August 5, 2014, and
which the court rescheduled for September 3. Finally, the State is charged with
thirty-five days from September 3, 2014, until Allen’s trial on October 8, 2014.
[9] Again, at the October 16, 2012, pre-trial conference, Allen advised the trial
court, in the presence of the State, that he had just been sentenced to ten years
in FB-25327. Allen maintains that that notice, in open court, was sufficient
notice of his whereabouts and he should not be charged with the delay that
resulted from his failure to appear at his January 23, 2013, trial.
[10] However, at the October 16, 2012, pre-trial conference, the court reporter
instructed defense counsel that he would have to file a transport order for
Allen’s appearance at the trial. In other words, defense counsel was responsible
for making sure that Allen would appear at his trial, and, on appeal, Allen does
not explain defense counsel’s failure to obtain a transport order. At the very
least, defense counsel should have notified the trial court of Allen’s
incarceration on January 23, 2013, and, again, Allen offers no explanation for
defense counsel’s failure to explain Allen’s absence on that date. It is well
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settled that “the action of a defendant’s counsel is considered the action of the
defendant” in determining who caused a delay for purposes of Criminal Rule
4(C). Cook v. State, 810 N.E.2d 1064, 1068 (Ind. 2004). Here, defense counsel’s
failure to obtain a transport order and failure to explain Allen’s absence is
attributable to Allen, and Allen is charged with 518 days from January 23,
2013, until June 25, 2014, the date the trial court denied his motion for
discharge.6
[11] The State is charged for thirty-four days from June 25, 2014, until July 29,
2014, the date that Allen filed a motion to continue his trial. Allen is charged
for thirty-six days from July 29, 2014, until September 3, 2014, the next
scheduled date of his trial. The record is silent as to why Allen’s trial was
continued from September 3, 2014, until it was finally held on October 8, 2014,
so that is another thirty-five days charged to the State. See Curtis, 948 N.E.2d at
1151. In all, then, the State is charged with 294 days from December 9, 2011,
to January 23, 2013; thirty-four days from June 25, 2014, until July 29, 2014;
and thirty-five days from September 3, 2014, until October 8, 2014; for a total of
363 days of delay charged to the State, which is less than one year. Thus, we
hold that Allen was not entitled to discharge under Criminal Rule 4(C), and the
trial court did not abuse its discretion when it denied that motion.
6
Again, the trial court properly struck Allen’s September 5, 2013, Verified Petition for Resolution of
Detainer because he filed it pro se while he was represented by counsel. Thus, Allen’s attempt to notify the
trial court of his incarceration on that date was for naught.
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Issue Two: Constitutional Claims
[12] Finally, Allen contends that the State’s delay in bringing him to trial violates his
right to a speedy trial as guaranteed by the United States and Indiana
Constitutions.
Although Indiana Criminal Rule 4 generally implements the
constitutional right of a criminal defendant to a speedy trial,
thereby establishing time limits and providing for discharge in the
event that limits are exceeded, our review of Rule 4 challenges is
“separate and distinct” from our review of claimed violations of
the speedy trial rights secured by the Sixth Amendment of the
U.S. Constitution and Article 1, Section 12 of the Indiana
Constitution.
Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014) (quoting Austin v. State, 997
N.E.2d 1027, 1037 n.7 (Ind. 2013)).
The Sixth Amendment to the U.S. Constitution provides, in
relevant part, that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,” U.S. Const.
amend. VI. Article 1, Section 12 of the Indiana Constitution
states, in applicable part, that “[j]ustice shall be administered
freely, and without purchase; completely, and without denial;
speedily, and without delay.” Ind. Const. art. 1, § 12. . . . To
resolve claimed speedy trial violations under our state
constitution, we apply the federal speedy trial analysis of Barker v.
Wingo, 407 U.S. 514, (1972). Crawford v. State, 669 N.E.2d 141,
145 (Ind. 1996) (citing Fortson v. State, 269 Ind. 161, 379 N.E.2d
147 (1978)). In Barker, the United States Supreme Court
identified four factors to balance when considering whether the
defendant has been deprived of his or her right to a speedy trial:
(1) length of the delay; (2) reason(s) for the delay; (3) defendant’s
assertion of his or her right; and (4) prejudice to the defendant.
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407 U.S. at 530. The Court characterized this approach as “a
balancing test, in which the conduct of both the prosecution and
the defendant are weighed.” Id.
Id. at 961-62.
[13] Here, in support of his contention on this issue, Allen states that, “[f]or a delay
to be this long, witness memories and recollections can be compromised. All
four [Barker] factors are in [Allen’s] favor and they are not the result of [Allen’s]
efforts to manipulate the system.” Appellant’s Br. at 10. He maintains that,
whether the State is charged with 796 days or 566 days, the delay “cannot ever
be justified or excused.” Id. at 9. And he states that “[h]e told everyone he
would be in the Department of Correction[],” so there is no excuse for the
delay. Id.
[14] But, again, we hold that the State is charged with 363 days, not 566 or 796, and
Allen is charged with the majority of the delay in scheduling a trial date. And
Allen has not shown any specific prejudice he has suffered by the delay, other
than to speculate that “witness memories and recollections can be
compromised.” Appellant’s Br. at 10. We agree with the State that the
evidence against Allen is straightforward, and any prejudice to Allen from the
delay is minimal, if any. We cannot say that the State’s delay in bringing Allen
to trial violated his constitutional rights to a speedy trial.
[15] Affirmed.
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Kirsch, J., concurs.
Barnes, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Travis Allen,
Appellant-Defendant, Court of Appeals Cause No.
49A05-1410-CR-501
v.
State of Indiana,
Appellee-Plaintiff.
Barnes, Judge, dissenting.
[16] I respectfully dissent. While I believe that trial judges, clerks, prosecutors, and
other court personnel should not be obligated to do a defendant’s work on his
or her behalf, I cannot agree with the majority that the first time the State and
the trial court received actual notice of Allen’s incarceration was April 23, 2014.
[17] To review, on October 16, 2012, at a pretrial conference, Allen and the trial
court had a discussion about Allen recently having been sentenced to a ten-year
term in the Department of Correction (“DOC”) on an unrelated case. See Tr. p.
108-09. There was also a discussion about whether Allen would be detained in
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the Marion County Jail or the DOC while these charges were resolved. See id.
at 110. This is on the record in a formal proceeding.
[18] Then, at the January 23, 2013 trial, defense counsel inexplicably did not file a
transport order or inform the trial court that Allen was incarcerated, and a
warrant was issued for Allen’s arrest. Even if, as the majority concludes, the
delay from defense counsel’s failure to obtain a transport order is attributable to
Allen, I believe that once the trial court and the State were notified of Allen’s
incarceration, the State was obligated to proceed with the case in a timely
manner. See Rust v. State, 792 N.E.2d 616, 620 (Ind. Ct. App.) (concluding that
Criminal Rule 4(C) clock was tolled when defendant failed to appear but
restarted once the trial court and State were notified of defendant’s
incarceration in another county), trans. vacated.
[19] On September 5, 2013, Allen filed a pro se “Verified Petition for the Resolution
of Detainer” informing the trial court that he was presently incarcerated at the
Putnamville Correctional Facility. App. p. 23. Although the State asserts this
was filed in the wrong court, the petition must have made its way to the correct
court because, on September 10, 2013, the trial court struck the pro se petition
based on Allen’s representation by counsel. The petition’s certificate of service
and the trial court’s order indicate that the State was made aware of these
filings. Although I agree with the majority that the trial court was not required
to address the merits of Allen’s pro se petition because he was represented by
counsel, I believe Allen’s petition was sufficient to serve as formal written
notice of his incarceration as we have previously required from a defendant
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incarcerated in one county and facing charges in another. See Werner v. State,
818 N.E.2d 26, 31 (Ind. Ct. App. 2004) (holding that a defendant facing charges
in one county is required to provide formal written notice to the State and the
trial court of his or her incarceration in another county to avoid the tolling of
the Rule 4(C) clock).
[20] Allen informed the trial court of his incarceration in person on the record at the
October 2012 pretrial conference. Even if this actual notice of his incarceration
was not sufficient to preserve Allen’s Rule 4(C) rights, I believe that Allen’s
September 5, 2013 pro se petition was. If these attempts at notification were
not sufficient, what else was Allen to do?
[21] I know this case arose in Marion County, where the criminal case overload is,
at times, chaotic; however, Allen did what he could to protect his rights.
Although I am not a fan of discharges pursuant to Criminal Rule 4(C), I would
recalculate the time in a manner that reflects the attempt(s) by Allen to notify
the trial court of his whereabouts. If that results in discharge, so be it.
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