MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Feb 02 2018, 6:16 am

this Memorandum Decision shall not be                                              CLERK
                                                                               Indiana Supreme Court
regarded as precedent or cited before any                                         Court of Appeals
                                                                                    and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
LaPorte, Indiana                                         Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas R. Ganus,                                         February 2, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1707-CR-1559
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas J.
Appellee-Plaintiff                                       Alevizos, Judge
                                                         Trial Court Cause No.
                                                         46C01-1409-F5-193



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1707-CR-1559 | February 2, 2018            Page 1 of 6
[1]   Thomas Ganus appeals his conviction for Level 5 Felony Operating a Motor

      Vehicle After Driving Privileges Were Forfeited For Life. 1 Ganus argues that

      his right to a speedy trial was violated. Finding no violation, we affirm.


                                                         Facts
[2]   On September 14, 2014, Ganus was arrested following a traffic stop when the

      officer discovered that Ganus was an habitual traffic violator with no driving

      privileges. Ganus posted a cash bond the same day. On September 17, 2014,

      the State charged Ganus with Level 5 felony operating a motor vehicle after

      driving privileges were forfeited for life. Over a series of five attorney

      appearance hearings, Ganus continued to appear without an attorney. The trial

      court granted Ganus one final continuance until May 8, 2015; on that date,

      Ganus failed to appear and a bench warrant was issued.


[3]   Ganus was located on September 10, 2015, in the St. Joseph County Jail. He

      was served with the bench warrant and transported to the LaPorte County Jail

      the same day; the next day, the trial court reset the attorney appearance hearing

      for October 2, 2015.2 On that date, an attorney appeared on behalf of Ganus

      and proceeded, over the ensuing months, to request multiple continuances

      because Ganus remained incarcerated in St. Joseph County.




      1
          Ind. Code § 9-30-10-17(a).
      2
          At some point, Ganus was returned to the St. Joseph County Jail.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1707-CR-1559 | February 2, 2018   Page 2 of 6
[4]   On July 1, 2016, Ganus and his attorney appeared for a change of plea hearing

      and requested a jury trial. The trial court granted the request and set the jury

      trial for May 1, 2017; Ganus agreed to that trial date. In September 2016,

      Ganus filed a motion to proceed pro se; following a hearing, the trial court

      granted the motion. On November 2, 2016, Ganus filed a motion to dismiss

      the charges pursuant to Indiana Criminal Rule 4. The trial court denied the

      motion.


[5]   On March 2, 2017, Ganus filed another motion; in that motion, he argued that

      his right to a speedy trial had been violated and requested that the charges be

      dismissed. The trial court appointed Ganus a public defender on March 24,

      2017, and on March 31, 2017, the trial court denied Ganus’s motion, finding

      that most of the delays in the case were attributable to Ganus.


[6]   Following Ganus’s May 1, 2017, jury trial, the jury found him guilty as

      charged. On June 9, 2017, the trial court sentenced him to four and one-half

      years imprisonment. Ganus now appeals.


                                   Discussion and Decision
[7]   Ganus argues that the trial court erroneously found that his right to a speedy

      trial had not been violated. The right to a speedy trial is guaranteed by the

      Sixth Amendment to the United States Constitution and by Article I, Section 12

      of the Indiana Constitution. E.g., Clark v. State, 659 N.E.2d 548, 551 (Ind.

      1995). Indiana Criminal Rule 4 helps to implement this right. In relevant part,

      the rule provides as follows:

      Court of Appeals of Indiana | Memorandum Decision 46A03-1707-CR-1559 | February 2, 2018   Page 3 of 6
              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). This 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 timeframe for various reasons, such as if a delay is caused by

      the defendant’s own motion or action. Cook v. State, 810 N.E.2d 1064, 1065-66

      (Ind. 2004).


[8]   We apply a two-tiered standard of review to a trial court’s ruling under

      Criminal Rule 4. Austin v. State, 997 N.E.2d 1027, 1039-40 (Ind. 2013). We

      apply a de novo standard of review to any questions of law but we defer to the

      trial court’s findings of fact. Id. In considering factual findings, we will not

      reweigh evidence and will consider only the evidence and reasonable inferences

      supporting those findings. Id. We will reverse only upon clear error, which is

      error that leaves this Court with a definite and firm conviction that a mistake

      has been made. Id.


[9]   To determine whether Ganus’s right to a speedy trial was violated, we must

      examine the timeline of events:


          • The State charged Ganus with the offense on September 17, 2014. At the
            initial hearing, Ganus entered a plea of not guilty and the trial court set a
      Court of Appeals of Indiana | Memorandum Decision 46A03-1707-CR-1559 | February 2, 2018   Page 4 of 6
         status of counsel hearing for November 7, 2014. The period of time
         between September 17 and November 7—51 days—is not chargeable to
         Ganus.3

    • On November 7 and December 5, 2014, and on January 23, February 27,
      and April 10, 2015, Ganus repeatedly appeared without an attorney so
      the trial court had to continue the matter. On April 10, 2015, the trial
      court granted Ganus a final continuance to May 8, 2015, to appear with
      an attorney. The period of time between November 7, 2014, and May 8,
      2015—182 days—is chargeable to Ganus.4

    • On May 8, 2015, Ganus failed to appear at the hearing and the trial court
      issued a bench warrant. He was not located until September 10, 2015.
      The period of time between May 8 and September 10, 2015—125 days—
      is chargeable to Ganus.

    • On September 11, 2015, the trial court again reset the attorney
      appearance hearing for October 2, 2015. On October 2, an attorney
      appeared on behalf of Ganus and requested a continuance because
      Ganus was incarcerated in another county. On November 6, 2015,
      January 8, 2016, and February 19, 2016, Ganus’s attorney requested
      further continuances because of Ganus’s incarceration. The trial court
      granted Ganus a final continuance and set the matter for a status hearing
      on April 8, 2016. The trial court required Ganus to be present at the
      April 8 hearing. The period of time between September 10, 2015 and
      April 8, 2016—211 days—is chargeable to Ganus.

    • On April 8, 2016, Ganus was present only by counsel, so the trial court
      reset the hearing for June 3, 2016. On June 3, 2016, Ganus and counsel



3
 Ganus did not include a transcript of this hearing (or any of the relevant hearings) as he is required to do on
appeal. As a result, we cannot confirm whether he requested a continuance at the initial hearing to retain
counsel. Had he made that request, this period of time would be chargeable to him. But we will give him the
benefit of the doubt and find that it is not chargeable to him—the ultimate result herein is not affected.
4
 Ganus argues that the record does not explicitly indicate that he requested these continuances. But it is
apparent that the only reason the matter was repeatedly continued was because he kept appearing at court
without an attorney (and declining to request the services of a public defender). Therefore, we have little
difficulty concluding that these delays are chargeable to him.

Court of Appeals of Indiana | Memorandum Decision 46A03-1707-CR-1559 | February 2, 2018             Page 5 of 6
               appeared and requested a continuance; the trial court rescheduled the
               hearing for July 1, 2016. The period of time between April 8 and July 1,
               2016—84 days—is chargeable to Ganus.

           • On July 1, 2016, Ganus appeared and requested a jury trial. The trial
             court scheduled the trial for May 1, 2017, and Ganus agreed to that date.
             The period of time between July 1, 2016, and May 1, 2017—304 days—
             is not chargeable to Ganus.

       In sum, a total of 957 days elapsed between the date on which Ganus was

       charged and the date on which his jury trial took place. Of that time, 602 days

       is chargeable to Ganus. The remaining 355 days fall within the 365-day limit

       set forth by Criminal Rule 4(C). Therefore, the trial court did not err by finding

       that Ganus’s right to a speedy trial was not violated.


[10]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1707-CR-1559 | February 2, 2018   Page 6 of 6
