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Cook v. State

Court: Indiana Supreme Court
Date filed: 2004-06-30
Citations: 810 N.E.2d 1064
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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.