FILED
Apr 22 2016, 5:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mitchele J. Harlan Gregory F. Zoeller
Clark County Assistant Public Defender Attorney General of Indiana
Jeffersonville, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Byron Tinker, and April 22, 2016
Travis Kelley, Court of Appeals Case No.
10A01-1507-CR-999
Appellants-Defendants,
Appeal from the Clark Circuit
v. Court
The Honorable Bradley Jacobs,
State of Indiana, Judge
Trial Court Cause No.
Appellee-Plaintiff.
10C02-1207-FD-974
10C02-1210-FC-245
May, Judge.
Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016 Page 1 of 12
[1] On July 19, 2012, the State charged Byron Tinker 1 with one Class D felony and
three Class A misdemeanors. On February 19, 2015, Tinker filed a motion to
dismiss because he had not been brought to trial within the one year required by
Criminal Rule 4(C). The trial court denied Tinker’s motion, but certified that
decision for interlocutory appeal. On appeal, Tinker argues the trial court
erroneously assigned periods of time to him that should have counted against
the State for Rule 4(C) calculations. We reverse and order the charges against
Tinker dismissed with prejudice.
Facts and Procedural History 2
[2] Tinker was arrested on July 16, 2012. On July 19, 2012, the State charged him
with Class D felony maintaining a common nuisance, 3 Class A misdemeanor
dealing in marijuana, 4 Class A misdemeanor possession of marijuana, 5 and
Class A misdemeanor possession of paraphernalia. 6 On July 31, 2012, the trial
court appointed a public defender to represent Tinker and scheduled pretrial
1
Travis C. Kelley’s interlocutory appeal of the Clark Circuit Court’s denial of his Criminal Rule 4(C) motion
to dismiss was consolidated with Tinker’s case for purposes of appeal. We dismissed Kelley’s appeal because
the charges against Kelley were resolved by a plea agreement.
2
We heard oral argument March 15, 2015, in Evansville, Indiana. We thank the Evansville Bar Association
for its hospitality, and we commend counsel on the quality of their advocacy.
3
Ind. Code § 35-48-4-13(b) (2001).
4
Ind. Code § 35-48-4-10 (2012).
5
Ind. Code § 35-48-4-11 (effective March 15, 2012).
6
Ind. Code § 35-48-4-8.3(b) (2003).
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hearings on August 27 and September 26, an attorney conference on October
12, and trial on November 13, 2012.
[3] At the second pretrial conference on September 26, 2012, the parties reported
Tinker had accepted a plea offer. (See Appellant’s App. at 2 (“Offer made,
accepted.”).) The next CCS entry, for the Attorney Conference on October 12,
2012, states only: “TMC.” 7 (Appellants’ App. at 2.) The trial date, November
13, 2012, passed without a CCS entry.
[4] On January 8, 2013, the court’s CCS entry indicated it was resetting the pretrial
and trial dates “[b]y agreement of the parties.” (Id.) The final pretrial was set
for January 30, 2013; the final plea deadline was set for February 8, 2013; and
trial was set for March 12, 2013. Those three dates passed without any
additional CCS entries.
[5] The next CCS entry is on April 2, 2013, when the court reset the final pretrial
conference for May 1, the final plea deadline as May 17, and the trial on June
11, 2013. Those dates also passed without any CCS entries.
[6] The next CCS entry is on July 30, 2013, when the court set the final pretrial
conference for August 28, a status conference for September 18, and a trial for
October 1, 2013. The CCS indicates the parties appeared on August 28 and
7
We were unable to find an explanation in the record for the abbreviation “TMC,” but Appellant’s Counsel
clarified at oral argument that it meant “Trial Management Conference.”
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“Plea offer outstanding.” (Id.) The dates for status conference and trial passed
without CCS entries.
[7] The next CCS entry is 391 days later, on September 23, 2014. On that date, the
court set pretrial conferences for November 3, 2014, and December 3, 2014, a
status conference for January 14, 2015, and trial for January 27, 2015. The
prosecutor and defense counsel appeared on November 3, 2014, but “Def. not
present. Dates remain set.” (Id.) The CCS entry for the pretrial conference on
December 3, 2014, states:
State by DPA Michaelia Gilbert. Def. by Defense Counsel
Mitch Harlan. Both counsel unavailable due to quantity of cases
on the docket. Dates remain set.
(Id.) A CCS entry for the January 14, 2015, status conference indicates:
State present by DPA Gilbert. Jury trial is set for 1/27/15.
Counsel has not had contact with defendant in some time. State
requests warrant for FTA for Final Plea Deadline.
(Id.) No CCS entry occurred on January 27, 2015, when the trial was
scheduled.
[8] On February 19, 2015, Tinker filed a motion to dismiss the charges against him
because the State had not brought him to trial within the 365 days required by
Criminal Rule 4(C). The trial court denied Tinker’s motion in a CCS entry that
stated: “Court waives/denies Motion for CR4, due to untimely filed objection.”
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(Id. at 14.) At the end of the hearing on Tinker’s motion, the judge provided a
more detailed explanation:
I’m going to deny the Motion. I’m going to set out the factors
here, so that it uh it’s a Final Order and Mr. Tinker if you wanted
to pursue an Appeal [sic], you’ve definitely a right to do so. Um
what I’ve got is the Advice of Rights, something happened on
July 31st, assume that’s the Advice of Rights and it attaches.
Once the Plea Offer was accepted on September 26th, I’m going
to find that at that point any delay is attributed to Mr. Tinker.
Um by either the misrepresentation or misunderstanding, but the
State relied on his ab- uh his statement of some sort that he was
going to accept the Plea Agreement. Uh I begin it again March
12, 2013, when the Jury Trial that had been reset um basically
just came and went. Any delay between September 2012 and
March . . . 2013, I did find the delay is attributed to Mr. Tinker
for uh attempting at least to accept the Plea. Then uh March 12th
until [June] 11th, I’m going to give to Mr. Tinker, and that comes
to 91 actual days. And then from June 11th when that Trial
comes and goes and no action is taken to October 1st, I also give
to Mr. Tinker, that’s 112 actual days. The problem we run into,
and this, Mr. Tinker, this is no fault of your attorney, um it really
this is almost impossible to do correctly but October 1st is when
the Jury Trial came and went, clearly that’s nothing that was
caused by your [sic] the delay was not caused by you, however,
uh it was January 27th until the next actionable date, and that was
your next Trial Date I believe, there’s no objection made in time
for the State to try you within the 365 days. What’s required
with CR4 is that the State bring you to Trial, but more
importantly in this case, is that you have to object to a Trial
setting outside of that 365 days. January 27th was your Jury Trial
date, um and so at that point that would have put you over the
365, but again your Trial for some reason was lost again. And
since an objection was not made, I can’t give you credit from
those days, from October 1st to January 27th, 2015. The the [sic]
part that I struggled with over the last few days researching the
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case is there is no clear direction when that objection is not
made, the CR4 is waived, but how many of those days are
waived. And Mr. Harlan, if you do Appeal [sic], I would suggest
you pursue that. How many of those days are waived? I think if
I picked anything other than zero, it’s arbitrary. Um so then
when the objection is made in February . . . 20th, . . . I would be
inclined to find that uh absent that requirement to object within a
reasonable time, all that time would have been attributable, and
but from [January 27 to February 20] I would give Mr. Tinker
time for that, but that’s only 24 days and we’re not at 365. So, I
think the issue would be between October 1, 2013 and January
27, 2015 that’s where the error may lie, if I’m making error, but
uh the cases I’ve found are pretty clear that the objection has to
be made in a timely manner, I can’t say that that was done.
(Tr. of Proceedings, State v. Byron Tinker, May 27, 2015 (hereinafter “Tr.”) at 3-
5.) 8 At Tinker’s request, the trial court certified its order for interlocutory
appeal, and we accepted jurisdiction.
Discussion and Decision
[9] Indiana Rule of Criminal Procedure 4(C) 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 was
8
We direct the Official Court Reporter of Clark Circuit Court No. 2 to Indiana Appellate Rule 28(A)(2),
which explains that the “pages of the Transcript shall be numbered consecutively regardless of the number of
volumes the Transcript requires.” We were provided a single volume of transcript for Tinker’s appeal that
contains two hearings, and the pages for each hearing were separately numbered.
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not sufficient time to try him during such period because of
congestion of the court calendar; provided, however, that in the
last-mentioned circumstance, the prosecuting attorney shall file a
timely motion for continuance as under subdivision (A) of this
rule. Provided further, that a trial court may take note of
congestion or an emergency without the necessity of a motion,
and upon so finding may order a continuance. Any continuance
granted due to a congested calendar or emergency shall be
reduced to an order, which order shall also set the case for trial
within a reasonable time. Any defendant so held shall, on
motion, be discharged.
[10] Rule 4(C) places an affirmative duty on the State to bring a defendant to trial
within one year. Gibson v. State, 910 N.E.2d 263, 266 (Ind. Ct. App. 2009).
“[T]he focus of Criminal Rule 4 is not fault; it is to ensure early trials.” Curtis v.
State, 948 N.E.2d 1143, 1151 (Ind. 2011). Rule 4 exists to effectuate “a criminal
defendant’s fundamental and constitutionally protected right to a speedy trial.”
Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013). Nevertheless, it “is not
intended to be a mechanism for providing defendants a technical means to
escape prosecution.” Id.
[11] Our standard for reviewing the trial court’s determination on a Rule 4 motion
depends on the type of decision made by the trial court. If there were no
disputed facts and the trial court needed only to apply the law to those
undisputed facts, then our “standard of review—like for all questions of law—is
de novo.” Austin, 997 N.E.2d at 1039. However, if the trial court made factual
findings regarding court congestion or emergency, for example, based on
disputed facts, then we review for clear error. Id. at 1040. Under that standard,
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[w]e neither reweigh the evidence nor determine the credibility of
witnesses. We consider only the probative evidence and
reasonable inferences supporting the judgment and reverse only
on a showing of clear error. Clear error is that which leaves us
with a definite and firm conviction that a mistake has been made.
Id. (internal citations and quotations omitted).
[12] Tinker was arrested on July 16, 2012, and the State filed charges against him on
July 19, 2012. Thus, the one-year period in which he needed to be tried began
to run on July 19, 2012. See Crim. R. 4(C) (“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”).
[13] Sixty-nine days later, on September 26, 2012, the parties appeared at a pretrial
conference and informed the court that a plea had been offered and accepted.
The November 13 trial date remained on the court’s calendar, but no
proceedings occurred. Then, on January 8, 2013, by “agreement of the parties
the Court now resets” trial for March 12, 2013. (Appellant’s App. at 2.)
[14] The trial court assigned the 167 days between September 26, 2012, and March
12, 2013, to Tinker. On appeal, Tinker concedes he is responsible for “the
period from when the notation at a pretrial conference that there is an
agreement, until the end of the new trial date setting . . . [because] [d]uring that
period, the defendant did not act in a way consistent with the speedy trial rule.”
(Appellants’ Br. at 10.) We accept Tinker’s concession and assign those 167
days to him.
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[15] In its explanation at the hearing, the trial court mentioned the time before the
plea was accepted on September 26, 2012, but it did not seem to explicitly
determine whether those sixty-nine days should be assigned to Tinker. On
appeal Tinker argues, and the State conceded at oral argument, those days
should count against the one year in which Tinker needed to be tried. Thus, by
agreement of the parties, as of March 12, 2013, sixty-nine days of the year in
which Tinker needed to be tried had elapsed.
[16] The next time period to be considered is the 203 days between March 12, 2013,
and October 1, 2013. The trial court assigned all of this time to Tinker and
noted, for at least part of that time, “no action is taken.” (Tr. at 4.) Tinker
argues the trial court erred by assigning this time to him because he was not
required to take any action to move his case to trial. The State argues that,
although the record before us provides no justification for assigning those days
to Tinker, we should remand to allow the trial court to explain why it assigned
those days to Tinker. 9 We decline the State’s invitation to remand.
[17] The one year deadline for bringing a defendant to trial is extended if the
defendant requested the continuance, if the defendant’s act caused the
continuance, or if an emergency or court congestion caused the delay. Crim. R.
9
The State also asks us to rely on evidence “not contained in the record as currently constituted.” (State’s
Br. of Appellee at 9 n.3.) Specifically, the Deputy Attorney General asks us to rely on her conversation with
a Clark County deputy prosecutor about a proposed minute entry regarding Tinker’s alleged absence from a
pre-trial conference on September 18, 2013, which was submitted but the court did not docket. “This
argument relies on evidence not in the record, and we thus decline to address it.” Julie C. v. Andrew C., 924
N.E.2d 1249, 1258 (Ind. Ct. App. 2012).
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4(C). “Any continuance granted due to a congested calendar or emergency
shall be reduced to an order, which order shall also set the case for trial within a
reasonable time.” Id. We have held the same expectation should apply – the
entry of a timely order in the court’s record – to justify charging a delay to a
defendant:
Reviewing courts may not attribute delays in proceeding to trial
to the defendant where the record is void regarding the reason for
the delay. Where docket entries are absent or missing regarding
the reason for a delay, the delay is not chargeable to the
defendant.
Alter v. State, 860 N.E.2d 874, 878 (Ind. Ct. App. 2007) (internal citations
omitted) (charging unexplained delays to the State for Criminal Rule 4(C)
calculations).
[18] Tinker’s case was scheduled to be tried on March 12, 2013, June 11, 2013, and
October 1, 2013. Although Indiana Trial Rule 77(B) requires that, “The judge
of the case shall cause Chronological Case Summary entries to be made of all
judicial events,” all of those scheduled dates for Tinker’s trial passed without a
CCS entry to explain why the case was not tried. Pursuant to Alter, we may not
remand for the trial court to explain those delays at this late date, as the record
already should have contained the support required to determine their proper
assignment. Id. at 879; see also T.R. 77(B) (“Notation of judicial events in the
Chronological Case Summary shall be made promptly, and shall set forth the
date of the event and briefly define any documents, orders, rulings, or
judgments filed or entered in the case.”). Thus, the 203 days that passed
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between March 12, 2013, and October 1, 2013, are included in the 365-day
deadline.
[19] As of October 1, 2013, 272 (i.e., 69+203) of the 365 days in which Tinker
needed to be tried had passed. The next action taken in the State’s cause
against Tinker was 357 days later on September 23, 2014, when the trial court
set trial for January 27, 2015. The trial court assigned those 357 days to Tinker
because “there’s no objection made in time for the State to try you within the
365 days.” (Tr. at 4.) That determination was also error.
[20] Indiana law provides:
A defendant waives his right to be brought to trial within the
period by failing to raise a timely objection if, during the period,
the trial court schedules trial beyond the limit. However, a
defendant has no duty to object to the setting of a belated trial
date if the setting occurs after the year has expired.
Pelley v. State, 901 N.E.2d at 494, 498-99 (Ind. 2009) (internal citations omitted).
Thus, Tinker had an obligation to object only if, during the 365 day period, the
court scheduled a new trial outside the 365 day period.
[21] On September 23, 2014, the court rescheduled trial for 2015. 357 days had
passed since the court’s prior action on October 1, 2013, at which point 272
days had passed. As such, by the court’s act in September of 2014, 629 days
had passed. There was no occasion on which, during the one-year period, the
court attempted to reset trial outside the one-year period. Therefore, the trial
court erred when it found Tinker had a duty to object.
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[22] The 357 days between October 1, 2013, and September 23, 2014, count against
the one-year period and, when added to the days that had accrued prior to
October 1, 2013, result in more than 365 days passing without Tinker being
tried for his crimes. “Because the State did not bring [Tinker] to trial within
one year of the date charges were filed, the trial court erred when it denied his
motion for discharge pursuant to Criminal Rule 4(C).” Gibson, 910 N.E.2d at
268.
Conclusion
[23] We reverse the court’s decision and order the charges against Tinker dismissed
with prejudice.
[24] Reversed and remanded.
Baker, J., and Najam, J., concur.
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