FILED
Jan 31 2024, 9:38 am
OPINION ON REHEARING
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Theodore E. Rokita
South Bend, Indiana Attorney General of Indiana
Steve J. Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stevie Bradley, January 31, 2024
Appellant-Defendant, Court of Appeals Case No.
22A-CR-2317
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff. Marnocha, Judge
Trial Court Cause No.
71D02-2109-F1-000020
Opinion by Judge Felix
Judge Crone concurs.
Judge Brown dissents with separate opinion.
Felix, Judge.
[1] The State has filed a petition for rehearing from our opinion in which we
vacated Stevie Bradley’s convictions because Bradley was not brought to trial
within 70 days pursuant to Indiana Criminal Rule 4(B) (repealed and replaced
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Jan. 1, 2024). See Bradley v. State, 223 N.E.3d 701 (Ind. Ct. App. 2023). In its
petition, the State contends that our holding that a defendant’s Criminal Rule
(“C.R.”) 4(B) early trial request is tolled when a trial court sua sponte initiates
competency proceedings for the defendant is erroneous. For the reasons
discussed below, the State’s assertions are not meritorious. We affirm our prior
opinion in all respects.
[2] In its appellee brief, the State argued that the delay caused by the trial court sua
sponte initiating competency proceedings was “not chargeable to the State.”
Appellee’s Br. at 12 (citing Curtis v. State, 948 N.E.2d 1143, 1150 (Ind. 2011)).
In its petition for rehearing, the State argues for the first time that Bradley’s
C.R. 4(B) early trial request was extinguished. Appellee’s Pet. Reh’g at 5–6.
The State recognizes that “it did not clearly make this point in its Brief.”
Appellee’s Pet. Reh’g at 5 n.1. “It is axiomatic that an issue not briefed or
urged in the original briefs on appeal generally cannot be raised for the first time
in a petition for rehearing.” In re Est. of Hurwich, 109 N.E.3d 416, 417 (Ind. Ct.
App. 2018) (quoting Strong v. Jackson, 781 N.E.2d 770, 772 (Ind. Ct. App.
2003)). Nonetheless, we will address the State’s argument.
[3] Delays and continuances generally extend (i.e., toll, pause, suspend) the 70-day
early trial period as set forth in C.R. 4(B)(1) and (F) (repealed and replaced Jan.
1, 2024). For example, any delay caused by a defendant’s request for a
competency evaluation extends the 70-day early trial period. See Curtis v. State,
948 N.E.2d 1143, 1150 (Ind. 2011) (citing Baldwin v. State, 274 Ind. 269, 411
N.E.2d 605, 606 (1980)). Likewise, State actions such as dismissing all charges
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toll the early-trial clock. Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997) (citing
State ex rel. Turner v. Hancock Cir. Ct., 270 Ind. 320, 385 N.E.2d 447, 448 (1979)).
However, a defendant’s early trial motion may be deemed extinguished or
waived if the defendant acts inconsistently therewith, including when a
defendant abandons a prior early trial motion, Finnegan v. State, 201 N.E.3d
1186, 1192–93 (Ind. Ct. App.) (quoting Minneman v. State, 441 N.E.2d 673, 677
(Ind. 1982)) trans. denied, 209 N.E.3d 1175 (Ind. 2023), or when a defendant
does not object to the trial court setting trial beyond the 70-day early trial
period, Hahn v. State, 67 N.E.3d 1071, 1080 (Ind. Ct. App. 2016) (citing Goudy,
689 N.E.2d at 691).
[4] Here, Bradley did not abandon or otherwise act inconsistently with his early
trial motion; in fact, Bradley frequently reminded the trial court of his request.
Bradley also did not request a competency evaluation for himself, so the
resulting delay is not chargeable to him. See Curtis, 948 N.E.2d at 1150 (citing
Baldwin, 411 N.E.2d at 606). The trial court initiated competency proceedings
sua sponte. When a trial court sua sponte orders a competency evaluation for a
defendant, the early trial period is tolled and the delay is chargeable to neither
the State nor the defendant. See Ind. Crim. Rule 4(B)(1), (F) (repealed and
replaced Jan. 1, 2024); Curtis, 948 N.E.2d at 1150 (citing Baldwin, 411 N.E.2d at
606).1 Once the competency evaluation is complete and the 70-day early trial
1
In its petition for rehearing, the State argues that it “did not do anything to delay [Bradley’s] trial.”
Appellee’s Pet. Reh’g at 9. We are not casting blame, and as our Supreme Court noted in Curtis v. State, “the
focus of Criminal Rule 4 is not fault; it is to ensure early trials.” 948 N.E.2d at 1151.
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period resumes, the State must fulfill its affirmative duty to bring the defendant
to trial. See Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013) (citing Cundiff v.
State, 967 N.E.2d 1026, 1028 (Ind. 2012)).
[5] Regarding its affirmative duty, the State contends that tolling the 70-day early
trial period when a trial court sua sponte orders a competency evaluation
“creates an incentive for defendants to act out to trigger competency questions
to gain a potential windfall under Rule 4(B) and potentially discourage trial
courts from addressing competency concerns.” Appellee’s Pet. Reh’g at 8. In
this case specifically, the State asserts that “[t]olling the 70-day period and
requiring the State to assemble potential jurors, subpoena witnesses, and
otherwise prepare within an eight-day period without warning is functionally
impossible.” Appellee’s Pet. Reh’g at 8.
[6] In making these arguments, the State overlooks the plain language of C.R.
4(B)(1) (repealed and replaced Jan. 1, 2024), that was in effect at all times
relevant to this case: If there “was not sufficient time to try [the defendant]
during such seventy (70) calendar days because of the congestion of the court
calendar . . . the prosecuting attorney shall file a timely motion for continuance
as set forth in” C.R. 4(A) (repealed and replaced Jan. 1, 2024). That is, when
Bradley’s early trial period clock resumed with eight days remaining, the State
should have filed a motion to continue the trial if it was “functionally
impossible” for the State to bring Bradley to trial within those eight days. The
State chose not to do so. Similarly, the trial court could have “take[n] note of
congestion or an emergency without the necessity of a motion, and upon so
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finding” could have ordered a continuance that would not have been chargeable
to the State. See Crim. R. 4(B)(1) (repealed and replaced Jan. 1, 2024). The
trial court did not do so.2
[7] While we grant this petition to address the State’s argument, with these
comments, we affirm our original opinion.
Crone, J., concurs.
Brown, J., dissents with separate opinion.
2
The State maintains that “the trial court continued Bradley’s trial” to May 4, 2022, because of “court
congestion” and that Bradley “failed to meet his burden of rebutting the trial court’s finding.” Appellee’s Pet.
Reh’g at 10. As explained in more detail in our original opinion, the record simply does not support the
State’s argument.
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Brown, Judge, dissenting.
[8] Upon further reflection, I believe this Court should affirm the trial court’s
judgment. Ind. Criminal Procedure Rule 4(B), prior to January 1, 2024,
provided that:
If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such
motion, except where a continuance within said period is had on
his motion, or the delay is otherwise caused by his act, or where
there was not sufficient time to try him during such seventy (70)
calendar days because of the congestion of the court calendar.
[9] As the majority noted in its opinion on rehearing, a defendant’s early trial
motion may be deemed extinguished or waived if the defendant acts
inconsistently therewith, including when a defendant abandons a prior early
trial motion. Finnegan v. State, 201 N.E.3d 1186, 1192-1193 (Ind. Ct. App.
2023) (citing Minneman v. State, 441 N.E.2d 673, 677 (Ind. 1982), reh’g denied),
trans. denied. “The law requires the movant to maintain a position which is
reasonably consistent with the request he has made.” Minneman, 441 N.E.2d at
677.
[10] The record reveals that the circumstances leading to the trial court vacating
Bradley’s trial on November 29, 2021, and ordering a competency evaluation,
resulted from Bradley’s actions. At a hearing on March 15, 2022, the court
stated that it believed “an adequate record” had been made “that there might be
some competency issues.” Second Supplemental Transcript Volume II at 5.
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On July 19, 2022, the court stated that it vacated Bradley’s previous trial over
concerns about his competency and the decision had been “based on in-court
and remote conduct by Mr. Bradley,” “based on a jail e-mail that was received
that was filed in this case indicating Mr. Bradley had a psychiatric history and
there were some issues with respect to medication,” and Bradley “at that point
in time, refused to be transported.” Supplemental Transcript Volume II at 5. I
would conclude that Bradley’s actions leading to questions about his
competency were inconsistent with his motion for an early trial and that the
resulting delay was chargeable to him. I would therefore affirm the trial court.
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