Attorney for Appellant Attorneys for Appellee
Jeffrey A. Baldwin Steve Carter
Indianapolis, Indiana Attorney General of
Indiana
Justin F. Roebel
Deputy Attorney General of
Indiana
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 33S01-0406-CR-288
Steven D. Cook,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Interlocutory Appeal from the Henry Circuit Court, No. 33C01-0112-CF-038
The Honorable Mary G. Willis, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 33A01-0302-
CR-00075
_________________________________
June 30, 2004
Sullivan, Justice.
There is conflicting authority as to whether, prior to any trial date
being set, delays caused by a defendant extend the one-year deadline for
bringing a defendant to trial under Indiana Criminal Rule 4(C). We hold
that they do.
Background
On December 11, 2001, Defendant Steven D. Cook was arrested and
charged with Dealing in a Schedule II Controlled Substance, a Class A
felony; Possession of a Schedule II Controlled Substance in an Amount
Greater than Three Grams Within 1,000 Feet of School Property, a Class A
felony; Dealing in a Schedule IV Controlled Substance, a Class C felony;
and Maintaining a Common Nuisance, a Class D felony. An initial hearing
was held on December 19, 2001. When Defendant had not been brought to
trial by December 26, 2002, he moved to dismiss the information, alleging a
violation of Indiana Criminal Rule 4(C), which requires the State to bring
a defendant to trial within one year of the defendant being arrested or the
charges being filed, whichever occurs later.
Relevant to Defendant’s claim are these two facts:
(1) Between February 14, 2002, and June 28, 2002,
Defendant made five motions to continue, and on three occasions
between July 22, 2002, and September 20, 2002, the court
postponed, the proceedings.
(2) No trial date had ever been set as of the time
Defendant made his motion to dismiss on December 26, 2002.
The trial court denied his motion. Defendant filed an interlocutory
appeal with the Court of Appeals, which affirmed the trial court, although
it attributed 105 days of delay to Defendant. Cook v. State, 799 N.E.2d
79, 83 (Ind. Ct. App. 2003). Neither court found the fact that no trial
date had been set to be controlling. However, Judge Sullivan dissented
from the opinion of the Court of Appeals on the ground that a request for a
continuance should be charged against a defendant only if a trial date has
already been set when that request is made. Id. (Sullivan, J.,
dissenting). We now grant transfer and affirm.
Discussion
The issue presented in this case is whether a defendant should be
charged under Indiana Criminal Rule 4(C) with delays that result from
actions of the defendant that occur before a trial
date has been set. The rule 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). The rule places an affirmative duty on the State to
bring a defendant to trial within one year of being charged or arrested,
but allows for extensions of that time for various reasons. Ritchison v.
State, 708 N.E.2d 604, 606 (Ind. Ct. App. 1999), trans. denied, 726 N.E.2d
300 (Ind. 1999). For instance, “[i]f a delay is caused by the defendant’s
own motion or action, the one-year time limit is extended accordingly.”
Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind. Ct. App. 1997) (citation
omitted), trans. denied, 698 N.E.2d 1190 (Ind. 1998); see also Andrews v.
State, 441 N.E.2d 194, 199 (Ind. 1982).
There is disagreement as to whether a defendant causes a delay of the
trial date when the defendant’s actions result in a postponement of the
proceedings before a trial date is set. In State ex rel. O’Donnell v. Cass
Superior Court, where the defendant agreed to a continuance sought by the
State, we held that the defendant’s charges should be dismissed because he
was not brought to trial within one year of being charged. 468 N.E.2d 209,
211 (Ind. 1984). In the opinion, we stated, “When a defendant has agreed
to a continuance prior to the setting of any trial date, those days shall
not be attributed to the defendant for the purposes of Ind.R.Cr.P. 4(C).”
Id. Our rationale was apparently that until a trial date has been set, a
defendant does not know whether the motion will delay the trial date. “A
defendant in that situation can only assume that when a trial date is
finally set it will conform to the limitations of the rule.” Id. Justice
DeBruler dissented, arguing, “When a party delays a task which must be
completed before a trial can take place, that party can and often does
delay the setting of the case for trial, and through that, the trial
itself. That is the effect of a continuance of the cause by agreement of
the parties.” Id.
Subsequent cases purport to follow the O’Donnell majority. These
decisions have held that any delay, regardless of who requested it, cannot
be charged to the defendant unless a trial date had already been set.
State v. Hurst, 688 N.E.2d 402, 406-08 (Ind. 1997); Carr v. State, 790
N.E.2d 599, 602-06 (Ind. Ct. App. 2003); Nance v. State, 630 N.E.2d 218,
220-21 (Ind. Ct. App. 1994); Harrington v. State, 588 N.E.2d 509, 511 (Ind.
Ct. App. 1992); Miller v. State, 570 N.E.2d 943, 945 (Ind. Ct. App. 1991);
see also Solomon v. State, 588 N.E.2d 1271, 1272 (Ind. Ct. App. 1992)
(holding that the delay between the time the court granted the parties’
joint motion to continue the trial date and the time the court reset the
trial date was not chargeable to defendant and treating it as an agreed-to
continuance under O’Donnell).
Some cases have disagreed with or questioned this view. Judge
Hoffman, concurring in result in Miller, noted that “[n]either Criminal
Rule 4(C) nor Criminal Rule 4(F), allowing extension of the Rule 4 time
periods, distinguishes between continuances requested or agreed to by the
defendant before or after a trial date has been set.” 570 N.E.2d at 946.
He also stated that “the language in O’Donnell . . . . should be viewed as
inadvertent or aberrational.” Id. at 947. In Frisbie, the Court of
Appeals rejected the defendant’s argument that delays made by him could not
be charged to him before the trial date had been set and stated that “[a]
careful review of the language of [O’Donnell and Morrison v. State, 555
N.E.2d 458, 461 (Ind. 1990)] discloses that neither supports a conclusion
that the defendant may request continuances without accountability.” 687
N.E.2d at 1217.[1]
We agree with the line of cases that hold when a defendant takes
action which 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. The cases since O’Donnell have
taken one sentence in the opinion and have stretched it to such a degree
that it removes the accountability of defendants. We believe that
O’Donnell, properly read, refers only to continuances that a defendant
agrees to and not continuances that the defendant requests. Miller was one
of the first cases[2] to hold that continuances that a defendant requests
are not chargeable to a defendant unless a trial date has been set. 570
N.E.2d at 945 (“For Criminal Rule 4(C) purposes, a defendant is not charged
with a continuance for which he moves or to which he agrees before a trial
date is set.”). And the overwhelming majority of cases following that
statement of the law have focused on facts other than the request having
been made before a trial date was set. See Harrington, 588 N.E.2d at 511
(holding that the delay could not be attributed to defendant even though he
made the motion to continue because the reason for the motion was a
conflict of the prosecutor’s and stating as an additional reason the fact
that the trial date had not been set when the motion to continue was made);
Nance, 630 N.E.2d at 220 (relying incorrectly on Solomon in stating that
continuances a defendant requests before a trial date is set are not
attributable to defendant); Hurst, 688 N.E.2d at 407-08 (holding defendant
was not chargeable with a 363-day delay between the time he made a motion
to dismiss and the time the court ruled on it, and stating that the
defendant “had a reasonable expectation that the motion would be ruled on
in due course and that, if it came to trial, he would be tried within the
correct time limit”). Only one case, Carr, rested its holding solely on
the fact that defendant’s continuances were requested before a trial date
had been set. 790 N.E.2d at 602-06.
The rule itself makes no distinction regarding when the trial date is
set. It provides that the time a trial date is postponed is not charged to
the State “where a continuance was had on [defendant’s] motion, or the
delay was caused by [defendant’s] act.” Crim. R. 4(C). And any action
that postpones the proceeding of the case will likely cause a delay in the
trial date. As Justice DeBruler stated in dissent in O’Donnell, “When a
party delays a task which must be completed before a trial can take place,
that party can and often does delay the setting of the case for trial, and
through that, the trial itself.” 468 N.E.2d at 211.
We therefore hold that delays caused by action taken by the defendant
are chargeable to the defendant regardless of whether a trial date has been
set. To the extent inconsistent with this holding, Hurst, 688 N.E.2d 402;
and Morrison, 555 N.E.2d 458, are overruled; and Carr, 790 N.E.2d 599;
Nance, 630 N.E.2d 218; Solomon, 588 N.E.2d 1271; Harrington, 588 N.E.2d
509; and Miller, 570 N.E.2d 943, are disapproved.[3]
Defendant made five motions to continue,[4] all of which are
attributable to Defendant. Two of those continuances were because defense
counsel had a scheduling conflict and defense counsel was out of the
country. These are chargeable to the defendant, because the action of a
defendant’s counsel is considered the action of the defendant. See
Andrews, 441 N.E.2d at 199; Epps v. State, 244 Ind. 515, 523-24, 192 N.E.2d
459, 463-64 (1963). The five motions brought by Defendant caused a total
of 103 days delay, and so the one-year limit is extended by this number of
days. Accordingly, Defendant’s trial date must have been set for no later
than March 22, 2003. The trial date was set for March 3, 2003, which was
well within the time limit. Defendant’s right under Criminal Rule 4(C) to
be brought to trial within one year of being charged was not violated.
Conclusion
We grant transfer and affirm the trial court.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] In Morrison, 555 N.E.2d at 461, the defendant argued that he
should not be charged with the delay caused by the granting of his filed
motion to continue the omnibus date before the trial date had been set.
Our Court said that his position was correct under O’Donnell but because he
had conceded that he should be charged with this delay earlier in the
proceedings, this delay was properly attributable to him. Id. Because it
seems to affirm O’Donnell on principle on the one hand but nevertheless
charges the delay to the defendant on the other, the ultimate meaning of
Morrison is ambiguous on this point.
[2] The first case to hold this was Everroad v. State, 570 N.E.2d 38,
43-44 (Ind. Ct. App. 1991) (finding a delay caused by defendants’ motion to
continue, which was made “prior to the setting of a trial date, [was] not
chargeable to the [defendants]”), reversed on other grounds, 590 N.E.2d 567
(Ind. 1992). Miller was the second case.
[3] As discussed in the text, we believe that O’Donnell stands only
for the proposition that a defendant’s agreement to a continuance sought by
the State is not chargeable to the defendant and does not extend the time
period of Crim. R. 4(C). That holding is not affected by this opinion.
[4] Defendant made motions to continue the pre-trial conference date
on five occasions: a Feb. 15, 2002, conference was continued to Apr. 5,
2002; the Apr. 5, 2002, conference was continued to Apr. 18, 2002; the Apr.
18, 2002, conference was continued to May 3, 2002; a June 26, 2002,
conference was continued to July 11, 2002; and the July 11, 2002,
conference was continued to July 22, 2002.