FILED
Jun 20 2018, 9:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Mark K. Phillips
Attorney General of Indiana Boonville, Indiana
Larry D. Allen
Andrew A. Kobe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, June 20, 2018
Appellant-Plaintiff, Court of Appeals Case No.
87A05-1709-CR-2137
v. Appeal from the Warrick Circuit
Court
Nicolas Lindauer, The Honorable Greg Granger,
Appellee-Defendant Judge
Trial Court Cause No.
87C01-1604-F6-138
May, Judge.
Court of Appeals of Indiana | Opinion 87A05-1709-CR-2137 | June 20, 2018 Page 1 of 12
[1] The State of Indiana appeals the trial court’s grant of Nicholas Lindauer’s
motion to dismiss the charges against him pursuant to Indiana Criminal Rule
4(C). The State argues the trial court erred in granting Lindauer’s motion
because the calendar year in which the State needed to bring Lindauer to trial
had not expired. Because Lindauer requested nearly all the continuances that
had occurred in the year after the State charged Lindauer, the State’s year in
which to try Lindauer had not expired. Accordingly, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
[2] On April 6, 2016, the State charged Lindauer with a Class C misdemeanor
operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or
more, 1 Class C misdemeanor operating a vehicle while intoxicated, 2 Class B
misdemeanor possession of marijuana, 3 Class C misdemeanor possession of
paraphernalia, 4 and Level 6 felony operating a vehicle with an ACE of .08 or
more. 5 During the hearing of April 25, 2016, Lindauer waived the formal
reading of the charges and requested the trial court “authorize a specialized
driving permit.” (Tr. Vol. II at 4.) Finding no objection from the State, the trial
1
Ind. Code § 9-30-5-1(a) (2001).
2
Ind. Code § 9-30-5-2(a) (2001).
3
Ind. Code § 35-48-4-11(a)(1) (2014).
4
Ind. Code § 35-48-4-8.3(b)(1) (2015).
5
Ind. Code § 9-30-5-1(a) (2001) & Ind. Code § 9-30-5-3 (2014).
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court granted Lindauer’s request the same day and set the case for a progress
hearing on June 27, 2016.
[3] On June 23, 2016, Lindauer moved to continue the progress hearing scheduled
for June 27, 2016, “due to Attorney Phillips having a confirmed Jury Trial in
another jurisdiction.” (Appellant’s App. Vol. II at 3.) The trial court granted
the motion and reset the hearing to August 22, 2016.
[4] On August 22, 2016, the trial court conducted a progress hearing. Lindauer
explained that plea negotiations were ongoing and stated that “we have a shot
at getting this resolved[.]” (Tr. Vol. II at 6.) The CCS states: “On Defendant’s
motion matter is reassigned for Progress Hearing on October 24, 2016.”
(Appellant’s App. Vol. II at 3.)
[5] At the hearing of October 24, 2016, Lindauer referenced the continuing
negotiations and requested the hearing to be reset “for an anticipated plea.”
(Tr. Vol. II at 6.) Accordingly, the CCS reflects: “On Defendant’s motion
matter is reassigned for progress hearing on November 14, 2016 [] for possible
plea.” (Appellant’s App. Vol. II at 3.)
[6] On November 14, 2016, the parties informed the trial court that no plea had
been reached. Lindauer moved to set the case for a later progress hearing, to
which the State acquiesced. The court offered January 30, 2017, to which
Lindauer responded: “Sounds great.” (Tr. Vol. II at 7.)
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[7] On January 30, 2017, the court conducted a progress hearing. Essentially as
soon as the court called the case, Lindauer requested the court reset the case for
February 27, 2017, because “[w]e’re on our third version of the plea
agreement.” (Id. at 8.) After brief discussion of the single term of the plea that
divided the parties, Lindauer said: “So if we can set it for the 27th that’d be my
request. We’re gonna resolve it I believe. . . . And I assume the Court’ll either
accept or reject and set it for Trial.” (Id.) “On Defendant’s motion matter is
reassigned for February 27, 2017.” (Appellant’s App. Vol. II at 4.)
[8] At the February progress hearing, Lindauer advised the trial court that he
“pitched a potential resolution to [the State]. [The State] wants to do some
investigation on its own. And I think we’re gonna set up a time to chat with
each other about it.” (Tr. Vol. II at 9.) Accordingly, “[o]n Defendant’s motion
matter is reassigned for March 20, 2017.” (Appellant’s App. Vol. II at 4.)
[9] Again, during the March hearing, Linduaer notified the court that they “just
need a date a couple weeks out” to come to a resolution with the State. (Tr.
Vol. II at 9.) Therefore, “[o]n Defendant’s motion matter is reassigned for
April 10, 2017.” (Appellant’s App. Vol. II at 4.)
[10] At the April 10, 2017, progress hearing, Lindauer admitted that he had been
unable to reach a plea agreement with the State and requested the trial court set
the cause for trial on May 8, 2017. The State objected to the proposed trial date
because it did not allow for sufficient time to subpoena the witnesses but offered
to be ready for trial on May 23 or 30, 2017. The trial court was not available on
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May 23, 2017, and Lindauer refused the date of May 30, 2017. After the trial
court reaffirmed May 8 would not work, Lindauer asked if he ever formally
waived his Criminal Rule 4 rights and argued that, if he had not formally
waived his right, any trial date would be outside the Rule 4 time period.
Lindauer agreed to provide the trial court with authority regarding his Rule 4
rights. The court set a “jury trial June 20, 2017.” (Appellant’s App. Vol. II at
4).
[11] On April 13, 2017, Lindauer filed a motion to dismiss pursuant to Indiana
Criminal Rule 4(C). During the hearing on Lindauer’s motion, Lindauer
conceded that at least 56 days were attributable to him, but that he should have
been brought to trial prior to June 2, 2017. In response, the State contended
that at least 287 days were not attributable to the rule because these were times
that Lindauer requested the hearings be reset. On August 23, 2017, the trial
court summarily granted Lindauer’s motion and dismissed the cause.
DISCUSSION AND DECISION
[12] The State contends that the trial court erred by dismissing the cause pursuant to
Indiana Criminal Rule 4(C). An accused’s right to a speedy trial is guaranteed
by Article I, Section 12 of the Indiana Constitution and by the Sixth
Amendment to the United States Constitution. Leek v. State, 878 N.E.2d 276,
277 (Ind. Ct. App. 2007). “This ‘fundamental principle of constitutional law’
has long been zealously guarded by our courts.” Id. (quoting Clark v. State, 659
N.E.2d 548, 551 (Ind. 1995) (citing a case from 1957)). Indiana Criminal Rule
Court of Appeals of Indiana | Opinion 87A05-1709-CR-2137 | June 20, 2018 Page 5 of 12
4 was adopted to implement a defendant’s right to a speedy trial. Id. Criminal
Rule 4(C) provides, in relevant part:
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.
The State has an affirmative duty to bring a defendant to trial within one year.
Leek, 878 N.E.2d at 277. A defendant has no obligation to remind the court of
the State’s duty, nor is a defendant required to take affirmative action to ensure
he is brought to trial within that period. Id.
[13] Nevertheless, if a defendant takes action that delays the proceeding, “that time
is chargeable to the defendant and extends the one-year time limit, regardless of
whether a trial date has been set at the time or not.” Cook v. State, 810 N.E.2d
1064, 1066-67 (Ind. 2004). “When a continuance is had on motion of the
defendant, or delay in trial is caused by his act, any time limitation contained in
the rule shall be extended by the amount of the resulting period of such delay
caused thereby.” Crim. R. 4(F). “The objective of the rule is to move cases
along and to provide the defendant with a timely trial, not to create a
mechanism to avoid trial.” Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).
Court of Appeals of Indiana | Opinion 87A05-1709-CR-2137 | June 20, 2018 Page 6 of 12
[14] Whether delays in the scheduling of the trial have occurred and to whom they
are chargeable are factual determinations for the trial court, Leek, 878 N.E.2d at
277, and “appellate review is for clear error.” Austin v. State, 997 N.E.2d 1027,
1040 (Ind. 2013). Thus we may not reweigh the evidence or reassess witness
credibility, and we reverse if we are left “with a definite and firm conviction
that a mistake has been made.” Id. (quoting State v. Oney, 993 N.E.2d 157, 161
(Ind. 2013)).
[15] Using the date the charges were filed against Lindauer, the Criminal Rule 4(C)
time period began to run on April 6, 2016. Barring any delay extending the
time, the State was required to bring Lindauer to trial by April 5, 2017. The
State notes that the CCS shows Lindauer was granted continuances on several
occasions. “The CCS is an official record of the trial court,” Ind. Trial Rule
77(B), and “a trial court speaks through its docket.” Young v. State, 765 N.E.2d
673, 678 n.6 (Ind. Ct. App. 2002).
[16] The CCS in this case clearly states that hearings set in June 2016, August 2016,
October 2016, November 2016, January 2017, February 2017, and March 2017
were rescheduled on Lindauer’s motion. The Transcript of the six hearings that
occurred between those dates also confirms Lindauer moved to reset six of the
hearings. (See Tr. at 6, 6, 7, 7-8, 9, & 9.) Thus, every extension of time that
occurred between June 23, 2016, and April 10, 2017, occurred because of a
request made by Lindauer.
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[17] Criminal Rule 4(C) provides a defendant can be required to answer a charge
more than a year after it was filed if “a continuance was had on his motion, or
the delay was caused by his act . . . .” As those seven continuances, which
cumulatively accounted for 288 calendar days, were all ordered because of a
motion by Lindauer, all 288 days are attributable to Lindauer and do not count
toward the Criminal Rule 4(C) deadline. 6 See Cook, 810 N.E.2d at 1068
6
In support of his argument the trial court properly dismissed his charges under Criminal Rule 4(C),
Lindauer points to Leek v. State, 878 N.E.2d 276 (Ind. Ct. App. 2007), and Smith v. State, 495 N.E.2d 539
(Ind. Ct. App. 1986). Because each of those cases contains facts that are materially dissimilar from
Lindauer’s case, neither requires we affirm the trial court’s dismissal of Lindauer’s charges.
Leek, like Lindauer, moved for dismissal of the charges against him after one calendar year had passed while
Leek and the State had been negotiating a possible plea agreement. 878 N.E.2d at 277. Unlike Lindauer,
however, Leek had not moved for a continuance during the eleven months that his CCS sat silent. Id. Leek
did not request the continuance that began the eleven-month lull in his proceedings. Id. Leek had not
appeared at hearings during that eleven months such that he could have acquiesced in continuances
requested by the State. Id. Because Leek had not taken any action that resulted in the delay, while Lindauer
explicitly requested the seven continuances that led to nine months of delay, we decline to follow Leek.
Smith also moved for dismissal of his charges based on Criminal Rule 4(C) after one year passed without the
State bringing him to trial. 495 N.E.2d at 540. The State asserted the court should deny Smith’s motion
because “it had been engaged in plea negotations with Smith’s attorney and . . . was waiting on a response
from Smith to the State’s plea bargain offer.” Id. The trial court rejected the State’s argument and dismissed
the charges. On appeal, we noted the CCS “entries reflect no delay in the scheduling of the trial that can be
attributed to Smith.” Id. at 541. As we affirmed the trial court’s decision, we explained:
Even if we assume that the State’s evidence established that it was engaged in plea
negotiations with Smith over the entire one-year period, this does not establish that
anything Smith or his attorney did caused an actual delay or prevented the State from
scheduling the trial. Smith was under no duty to remind the State that the one-year
period was running out, and the State was under no compulsion to allow the period to
expire while waiting for Smith’s response to its plea offer. Indeed, if the State was
dissatisfied with the progress of the negotiations, it could have simply requested the court
to set a timely trial date and required Smith to obtain a continuance to pursue the
negotiations. This the State did not do.
Id. at 542. Unlike Smith, Lindauer moved for multiple continuances to pursue plea negotiations with the
State. This factual distinction leads us to hold Smith supports our decision to assign to Lindauer the delay
caused by his seven motions to continue. See Cook, 810 N.E.2d at 1068 (defendant’s motions to continue the
pre-trial conference were chargeable against the defendant).
Court of Appeals of Indiana | Opinion 87A05-1709-CR-2137 | June 20, 2018 Page 8 of 12
(“Defendant made five motions to continue, all of which were attributable to
Defendant.” (footnote omitted)).
[18] As our Indiana Supreme Court has explained, Criminal Rule 4(C) was created
“to move cases along . . . , not to create a mechanism to avoid trial.” Brown,
725 N.E.2d at 825. A defendant cannot habitually move to reset the
preliminary hearing at which the trial date was to be set and then assert a
meritorious claim that his right to trial within a year was violated. 7 See Cook,
810 N.E.2d at 1068 (holding all five of defendant’s motions to continue the pre-
trial conference were chargeable against the defendant, such that Criminal Rule
4(C) time limit had not expired). Because the trial court committed clear error
when it granted Lindauer’s motion to dismiss, we reverse and remand for
further proceedings.
[19] Reversed and remanded.
Mathias, J., concurs.
Riley, J., dissents with separate opinion.
7
We need not address the State’s argument that Lindauer waived his right under Rule 4(C) by failing to
object at an appropriate time to a trial being set outside the one-year deadline because, by our calculation, at
the time of the trial scheduled for June 20, 2017, only 153 days attributable to the Rule 4(C) deadline would
have passed. Because the scheduled trial was well within the one-year deadline, no objection to that trial
date was necessary.
Court of Appeals of Indiana | Opinion 87A05-1709-CR-2137 | June 20, 2018 Page 9 of 12
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, Court of Appeals Case No.
87A05-1709-CR-2137
Appellant-Plaintiff,
v.
Nicolas Lindauer,
Appellee-Defendant
Riley, dissenting
[20] I respectfully dissent from the majority’s decision to reverse the trial court’s
order, which dismissed Lindauer’s charges pursuant to Indiana Criminal Rule
4(C). Like the majority, I acknowledge that the CCS is the “official record of
the trial court,” and that a trial court speaks through its docket. Ind. Trial Rule
77(B), Young v. State, 765 N.E.2d 673, 678, n.6 (Ind. Ct. App. 2002). However,
the CCS combined with the transcript of the proceedings presents a more
nuanced picture in the instant case and indicates that for the majority of the
continuances, the parties were engaged in ongoing plea negotiations. “To the
extent the parties were engaged in plea negotiations, ‘[a]lmost every criminal
case involves a simultaneous two-track process—a negotiation track and a
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litigation track and Criminal Rule 4(C) requires the State to be ever mindful of
the one-year deadline.’” Gibson v. State, 910 N.E.2d 263, 268 (Ind. Ct. App.
2009) (citing Leek v. State, 878 N.E.2d 276, 279 (Ind. Ct. App. 2007)).
[21] During the April 10, 2017 progress hearing, Lindauer advised the trial court
that the negotiations were not successful and requested a trial date. Until
Lindauer made this request, no trial date had ever been scheduled, despite the
State’s affirmative duty to bring Lindauer to trial before June 2, 2017. 8 Our
court has previously held:
[W]hen, prior to the expiration of the period set by [Criminal
Rule 4], the court sets a trial date which is beyond that period
and the defendant is or should be aware that the setting is beyond
that period, it is his obligation to object at the earliest opportunity
so that the court can reset the trial for a date within the proper
period. If the defendant sits idly by at a time when the court
could yet grant him a trial within the prior period and permits the
court, without objection, to set a date beyond that period, he will
be deemed to have acquiesced therein.
State v. Black, 947 N.E.2d 503, 508 (Ind. Ct. App. 2011) (citing State v. Delph,
875 N.E.2d 416, 420 (Ind. Ct. App. 2007), trans. denied).
[22] Here, Lindauer was aware of the Criminal Rule 4(C) timeframe. During the
April 10, 2017 hearing, Lindauer advised the trial court about his Criminal Rule
8
The CCS and transcript reflects that the hearing of June 27, 2017 was continued to August 22, 2016, by
Lindauer’s written motion. I find that only this 56-day continuance can be attributed to Lindauer and
extends the Criminal Rule 4(C) deadline to June 2, 2017.
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4 right but the trial court nevertheless scheduled the trial date outside this
period. While a line of cases describe a defendant’s obligation as an “obligation
to object at the earliest opportunity,” other cases merely state that once a trial
court sets a trial date outside the one year period, the defendant must alert the
court and file a timely objection. See, e.g., Randall v. State, 474 N.E.2d 76, 84
(Ind. 1985); Johnson v. State, 708 N.E.2d 912, 915 (Ind. Ct. App. 1999), trans.
denied; But see contra, e.g., Schwartz v. State, 708 N.E.2d 34, 36 (Ind. Ct. App.
1999); Wheeler v. State, 662 N.E.2d 192, 194 (Ind. Ct. App. 1996). However, all
of the cases seem to agree that the purpose of the objection requirement is to
permit the trial court to set the trial for a new date within the proper period. See
Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).
[23] While Lindauer might not have explicitly objected at his earliest opportunity—
i.e., at the hearing—it was clear to all parties involved that he was invoking his
right to being brought to trial within the Criminal Rule 4 term. Accordingly, as
Lindauer timely objected and did not waive his Criminal Rule 4(C) rights, I
would affirm the trial court’s decision to dismiss the case.
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