MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jul 13 2016, 9:23 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marcus T. Conner,                                        July 13, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1509-CR-1426
        v.                                               Appeal from the Elkhart Superior
                                                         Court 3
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D03-1209-FA-63



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016          Page 1 of 14
                                                Case Summary
[1]   Marcus T. Conner (“Conner”) appeals his convictions for three counts of

      Dealing in Cocaine, as Class A felonies,1 and Maintaining a Common

      Nuisance, as a Class D felony.2 We affirm.



                                                          Issues
[2]   Conner presents two issues for our review, which we restate as:

                 I.        Whether two of the trial court’s findings of court
                           congestion were clearly erroneous; and


                 II.       Whether Conner waived his constitutional speedy-trial
                           claims by failing to raise them before the trial court.


                                 Facts and Procedural History
[3]   On September 19, 2012, Conner was arrested after he sold cocaine to two

      confidential informants during three separate controlled buys arranged by the

      Elkhart Police Department. Conner sold the cocaine from his home, which

      was located within 1000 feet of a youth program center. On September 24,

      2012, the State charged Conner with three counts of Dealing in Cocaine, as

      Class A felonies, and Maintaining a Common Nuisance, as a Class D felony.




      1
          Ind. Code §§ 35-48-4-1-(a)(1)(C) & (b)(3)(B)(iv) (2008).
      2
          I.C. § 35-48-4-13(b)(2)(B).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016   Page 2 of 14
      On March 26, 2015, the State moved to amend the charging information to

      allege that Conner was a habitual offender.3


[4]   At Conner’s initial hearing, a trial date was set for March 11, 2013.


[5]   On the court’s own motion, and by an order dated March 8, 2013, the trial

      court vacated the March 11, 2013 trial date due to court congestion and set a

      pre-trial conference for April 11, 2013 for the purpose of selecting a new trial

      date. On Conner’s motion, the pre-trial conference was continued. At a pre-

      trial conference held on May 2, 2013, the trial was rescheduled for July 15,

      2013.


[6]   On defendant’s motion, and by an order dated July 12, 2013, the trial court

      vacated the July 15, 2013 trial date, “with [Indiana Criminal Rule] 4 time

      chargeable to the Defense” (App. 149), and scheduled a pre-trial conference for

      July 25, 2013. At the conference, the trial was rescheduled for August 12, 2013.


[7]   On the State’s motion, and by an order dated July 31, 2013, the trial court

      vacated the August 12, 2013 trial date due to court congestion. At a pre-trial

      conference held September 5, 2013, the trial was rescheduled for January 6,

      2014.


[8]   On the court’s motion, and by an order dated January 2, 2014, the court again

      vacated the January 6, 2014 trial date due to court congestion and set a pre-trial




      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016   Page 3 of 14
       conference for February 6, 2014. At the conference, the court set the trial for

       March 24, 2014.


[9]    The State then filed two more motions to continue due to court congestion. By

       an order dated March 17, 2014, the March 24, 2014 trial was cancelled and

       rescheduled for June 23, 2014. By an order dated June 19, 2014, the June 23,

       2014 trial date also was vacated.


[10]   On July 7, 2014, Conner, acting pro se, sent to the court a motion for discharge

       under Indiana Criminal Rule 4. Conner was represented by counsel at the time,

       so the court did not accept the filing. At a pretrial conference held July 31,

       2014, the cancelled June 23, 2014 trial was rescheduled for January 26, 2014.


[11]   On October 23, 2014, Conner submitted another pro se motion for discharge,

       which the trial court again did not accept because Conner was represented by

       counsel.


[12]   On the State’s motion, and by an order dated January 20, 2015, the court

       rescheduled the January 26, 2015 trial due to court congestion and set a pre-trial

       conference for February 26, 2015.


[13]   At the February 26, 2015 pre-trial conference, Conner, this time by counsel,

       filed in open court a motion for discharge under Indiana Criminal Rule 4. The

       court heard argument on the motion. The motion was denied, and trial was set

       for April 6, 2015.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016   Page 4 of 14
[14]   On April 6, 2015, the day of trial, Conner’s counsel moved to withdraw his

       representation due to a conflict of interest. The trial was continued.


[15]   A jury trial was held on July 20 and 21, 2015, and Conner was found guilty as

       charged. Conner admitted to being a habitual offender. By orders dated

       August 27 and 28, 2015, the trial court sentenced Conner to an aggregate

       sentence of seventy-two years.


[16]   Conner now appeals his convictions.



                                  Discussion and Decision
[17]   Although “Indiana Criminal Rule 4 generally implements the constitutional

       right of a criminal defendant to a speedy trial,” Bridwell v. State, 659 N.E.2d

       552, 553 (Ind.1995), “the protections of Rule 4(C) are not co-extensive with the

       protections guaranteed by the Sixth Amendment [to the U.S. Constitution] and

       Article 1, Section 12” of the Indiana Constitution. Logan v. State, 16 N.E.3d

       953, 961 (Ind. 2014). Thus, “our review of Rule 4 challenges is ‘separate and

       distinct’ from our review of claimed violations of the speedy trial rights secured

       by the” U.S. and Indiana Constitutions. Id. at 958. Where an appellant

       challenges the timeliness of his trial on both grounds, “we ordinarily begin our

       analysis with [Criminal Rule] 4.” Sweeney v. State, 704 N.E.2d 86, 99 (Ind.

       1998).




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016   Page 5 of 14
                                                  Criminal Rule 4
[18]   Conner first contends he was entitled to discharge under Indiana Criminal Rule

       4(C).4 The goal of Criminal Rule 4 is to effectuate “a criminal defendant’s

       fundamental and constitutionally protected right to a speedy trial.” Austin v.

       State, 997 N.E.2d 1027, 1037 (Ind. 2013). The rule “‘provides that a defendant

       may not be held to answer a criminal charge for greater than one year unless the

       delay is caused by the defendant, emergency, or court congestion.’” Curtis v.

       State, 948 N.E.2d 1143, 1148-49 (Ind. 2011) (quoting Pelley v. State, 901 N.E.2d

       494, 497 (Ind. 2009)). The focus of Criminal Rule 4 is not fault, but to ensure

       early trials. Id. at 1151. The rule places an affirmative duty on the State to

       bring a defendant to trial. Id.


[19]   Under Criminal Rule 4(C), the time period begins “from the date the criminal

       charge against such defendant is filed, or from the date of his arrest on such

       charge, whichever is later[.]” Crim R. 4(C). Delays caused by emergency or

       court congestion do not count toward the one-year period. Crim R. 4(C). In




       4
           Criminal Rule 4(C) 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; provided, however, that in
                  the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance
                  as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion
                  or an emergency without the necessity of a motion, and upon so finding may order a continuance.
                  Any continuance granted due to a congested calendar or emergency shall be reduced to an order,
                  which order shall also set the case for trial within a reasonable time. Any defendant so held shall,
                  on motion, be discharged.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016                 Page 6 of 14
       addition, delays caused by the defendant extend the Rule 4(C) one-year time

       period. Crim. R. 4(F). “In the end, tacking on additional time to the one-year

       period and excluding days from the one-year period are one and the same.”

       Curtis, 948 N.E.2d at 1150. Thus to analyze a claim under Criminal Rule 4(C),

       we determine whether the time not attributable to the defendant’s delays, court

       congestion, or emergency exceeds 365 days. Id.


[20]   In this case, the State filed charges on September 24, 2012. Conner’s trial was

       originally scheduled for March 11, 2013, but on March 8, 2013 the court on its

       own motion vacated the trial date due to court congestion. Therefore, the 165

       days from September 24, 2012 to March 8, 2013, are charged to the State for the

       purposes of Criminal Rule 4.5


[21]   Thereafter, Conner’s trial date was vacated and rescheduled six more times

       before Conner filed his motion for discharge on February 26, 2015. On five

       occasions, the trial court, either on its own or the State’s motion, issued an

       order vacating the trial date due to court congestion.6 Conner requested a

       continuance of the July 15, 2013 trial.7 Conner also requested a continuance of




       5
           Conner contends this is 162 days, but our calculations show 165.
       6
        In addition to the original March 11, 2013 trial date, the trial dates vacated due to court congestion were:
       August 12, 2013; January 6, 2014; March 24, 2014; June 23, 2014; and January 26, 2015.
       7
        Conner’s April 6, 2015 trial date was also continued when his counsel moved to withdraw due to a conflict
       of interest. However, this continuance occurred after Conner filed his motion for discharge, and in any case,
       Conner does not argue the delay should be charged to the State.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016               Page 7 of 14
       a pre-trial conference that was set for the purpose of selecting a new trial date. 8

       Because these delays were caused by court congestion or Conner, none of this

       time is charged to the State.


[22]   In sum, of the 885 days from charging (September 24, 2012) to the date on

       which Conner filed a motion for discharge (February 26, 2015), only 165 days

       were attributable to the State for Criminal Rule 4(C) purposes.9 Because the

       number of days chargeable to the State does not exceed 365, Conner was not

       entitled to discharge under Criminal Rule 4(C).


[23]   On appeal, Conner argues that two of the trial court’s findings of congestion

       were erroneous, that the time should have been charged to the State, and thus

       he was entitled to discharge. We review a trial court’s factual finding of court

       congestion or emergency for clear error. Austin, 997 N.E.2d at 1040.10


                  Upon appellate review, a trial court’s finding of congestion will
                  be presumed valid and need not be contemporaneously explained
                  or documented by the trial court. However, a defendant may
                  challenge that finding, by filing a Motion for Discharge and
                  demonstrating that, at the time the trial court made its decision to
                  postpone trial, the finding of congestion was factually or legally
                  inaccurate. Such proof would be prima facie adequate for
                  discharge, absent further trial court findings explaining the




       8
           The pre-trial conference originally was scheduled for April 11, 2013 and held May 2, 2013.
       9
           In total, 1029 days elapsed between charging (September 24, 2012) and trial (July 20, 2015).
       10
         Although Austin concerned Criminal Rule 4(B), Criminal Rules 4(A) and 4(C) also provide for continuance
       due to a congested calendar or emergency. Therefore, “analysis in the context of Criminal 4(B) should apply
       with equal force to Criminal Rules 4(A) and 4(C).” Austin, 997 N.E.2d at 1038 n.8.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016               Page 8 of 14
                congestion and justifying the continuance. In the appellate
                review of such a case, the trial court’s explanations will be
                accorded reasonable deference, and a defendant must establish
                his entitlement to relief by showing that the trial court was clearly
                erroneous.


       Clark v. State, 659 N.E.2d 548, 552 (Ind. 1995).


[24]   First, Conner argues that the court erred in vacating the August 12, 2013 trial

       date because the parties agreed to the date during a pre-trial conference held on

       July 25, 2013, but shortly after, on July 31, 2013, the court granted the State’s

       July 29, 2013 motion to vacate the trial date due to court congestion.

       According to Conner, “[i]t strains logic and common sense to decipher how

       both the trial court . . . and the State . . . could on July 25 th agree to set Conner’s

       trial on August 12 and then just four (4) days later, the same deputy prosecutor

       successfully files a motion to continue that trial date due to court congestion.”

       (Appellant’s Br. 8.) Conner argues that the timing of the State’s motion renders

       the August 12, 2013 trial setting “meaningless,” and therefore the delay from

       the time of the State’s motion to continue (July 29, 2013) to the next trial date

       (January 6, 2014) should be chargeable to the State.11


[25]   The court’s order vacating the August 12, 2013 trial date states only that the

       “court finds that this case is not likely to proceed due to congestion of the




       11
         Conner’s brief is inconsistent: he contends that the delay should be calculated from the time the State’s
       motion to continue was filed (July 29, 2013) to the next trial date (January 6, 2014), but later defines the time
       period as between July 31, 2013 (the date of the court’s order vacating the trial date) and January 2, 2014 (the
       court’s next finding of congestion). At most, the period from July 29, 2013 to January 6, 2014 is 161 days.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016                Page 9 of 14
       Court’s calendar . . . .” (App. 144.) The corresponding entry on the

       Chronological Case Summary (“CCS”) provides more detail, revealing that

       “[t]he first priority setting on August 12, 2013 is State of Indiana versus

       Kenneth L. Johnson, Cause No. 20D03-1203-FA-17.” (App. 12.) However,

       Conner did not object to the State’s motion for continuance or otherwise

       challenge the court’s order.12 Accordingly, the record concerning the trial

       court’s finding was not further developed. The record shows Conner’s trial date

       was vacated because another case scheduled for trial that day had priority.

       Absent further evidence that the finding was factually or legally inaccurate, “a

       trial court’s finding of congestion will be presumed valid . . . .” Clark, 659

       N.E.2d at 552. Conner has not shown the court’s finding of congestion was

       clearly erroneous merely by alleging on appeal that the timing of the State’s

       motion was suspect.


[26]   Conner next argues that the trial court erred in vacating the January 26, 2015

       trial date. For that date, the State moved to continue, and the court’s order,

       dated January 20, 2015, again stated that the “court finds that this case is not

       likely to proceed due to congestion of the Court’s calendar . . . .” (App. 127.)



       12
          Eighteen months later, Conner eventually filed a motion for discharge on February 26, 2015, which did
       not challenge the factual accuracy of any of the court’s findings of congestion. At the hearing on the motion,
       in response to the prosecuting attorney’s argument that Conner had not challenged the court’s findings,
       Conner’s counsel argued:
                I believe on a number of those occasions [when Conner’s case was continued], either of those cases
                [the cases with higher priority] did not go. I don’t - - I don’t specifically have the documentation
                concerning which cases did go on particular days.
       (Discharge Tr. 6-7.) However, Conner never pointed to specific dates or presented evidence to show which
       of the court’s findings of congestion were allegedly erroneous.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016             Page 10 of 14
       The corresponding CCS entry elaborates that “[t]he first priority setting on

       January 26, 201[5] is State of Indiana versus Jose Jesus Macias, Cause No.

       20D03-1109-FA-00026.” (App. 15.)


[27]   At the pre-trial hearing held to reschedule the January 26, 2015 trial date,

       Conner filed in open court a motion for discharge. However, in the written

       motion, Conner did not challenge the factual accuracy of the court’s finding of

       congestion. In fact, regarding the January 26, 2015 trial date, Conner’s counsel

       stated:

                 I do realize that [Conner] was congested out the last time due to
                 another matter that was apparently scheduled for trial at the
                 same time as his trial. I do believe that that case may have been
                 my case, and I believe it was ultimately pled out the - - if I remember
                 correctly - - the morning of trial in connection with that matter.


       (Discharge Tr. 4) (emphases added). By this statement, Conner’s counsel

       appears to have represented to the court that the finding of congestion was

       factually accurate when it was made on January 20, 2015 because the priority

       case was not resolved until January 26, 2015.


[28]   Conner now argues that the court’s finding of congestion was erroneous

       because on January 16, 2015 – one day after the State’s motion to continue was

       filed – the Macias case was continued to another date. In support, Conner has

       submitted the CCS from the Macias case as an addendum to his appellate brief

       and asks us to take judicial notice of the CCS under Indiana Evidence Rule 201.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016   Page 11 of 14
[29]   It is axiomatic that appellate review of the factfinder’s assessment is limited to

       those matters contained in the record that were presented to and considered by

       the factfinder. Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 188 (Ind. Ct. App.

       1998), trans. denied. “On appeal, judicial notice may not be used to fill

       evidentiary gaps.” Id.


[30]   By submitting the CCS, Conner seeks to present evidence that should have been

       presented first to the trial court. We decline Conner’s attempt to fill an

       evidentiary gap, and we will not review the Macias CCS on appeal. The

       purpose of presenting such evidence first to the trial court is to allow the court

       to make further “findings explaining the congestion and justifying the

       continuance.” Clark, 659 N.E.2d at 552. Perhaps when presented with

       evidence that the case with first priority on January 26, 2015 had been

       rescheduled, the court could have shown that another case with priority over

       Conner’s still justified a finding of congestion. That is, even if the Macias case

       was rescheduled prior to January 26, 2015, it does not necessarily follow that

       Conner’s case was the next case in line. By failing to present to the trial court

       evidence to support his claim, Conner deprived the court of an opportunity to

       respond and further develop the record. Absent evidence to the contrary, we

       presume the court’s finding of congestion was valid. Accordingly, Conner has

       failed to show that the court’s finding of congestion on January 26, 2015 was

       clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016   Page 12 of 14
[31]   We acknowledge that a 1029-day delay from charging to trial is extraordinarily

       – and disconcertingly – long.13 As our supreme court has repeatedly cautioned,

       court congestion “is not a blank check for poor judicial administration.” Logan,

       16 N.E.3d at 961; Austin, 997 N.E.2d at 1043. Still, Conner acquiesced in

       many of the continuances and failed to timely challenge the court’s findings of

       congestion. Additionally, Conner did not file a motion for early trial under

       Criminal Rule 4(B), which may have entitled him to priority over other cases. 14


[32]   Because the number of days chargeable to the State did not exceed 365, Conner

       was not entitled to discharge under Indiana Criminal Rule 4(C).


                                            Constitutional Claims
[33]   Conner next argues that a 1029-day delay from charging to trial violated his

       rights to a speedy trial under the U.S. and Indiana Constitutions. The Sixth

       Amendment to the U.S. Constitution provides, in part: “In all criminal

       prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”

       Article 1, Section 12 of the Indiana Constitution provides, in part: “Justice

       shall be administered freely, and without purchase; completely, and without

       denial; speedily, and without delay.”




       13
            Conner contends the delay was 1018 days, but again our calculation comes in a little higher.
       14
          Conner’s counsel stated at the discharge hearing that “[w]e had not necessarily made a formal motion in
       regards for an early trial because of the issue that that may preclude any argument in regards to the motion
       for discharge.” (Discharge Tr. 3-4.) Counsel reiterated that he did not pursue a Criminal Rule 4(B) motion
       “because I did not want to lose this potential appealable issue in connection with this case.” (Discharge Tr.
       4.)

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016                Page 13 of 14
[34]   As an initial matter, the State argues that Conner waived his constitutional

       claims because he raises them for the first time on appeal. In support, the State

       cites Curtis, in which the Indiana Supreme Court held that an appellant forfeited

       his constitutional speedy-trial claim where the issue was not presented to the

       trial court but first raised on interlocutory appeal. 948 N.E.2d at 1147-48. The

       court reasoned that “[t]o hold otherwise would allow a party to circumvent the

       well-established rule that issues must be raised before the trial court or are

       unavailable on appeal.” Id. at 1148 (citing Pigg v. State, 929 N.E.2d 799, 803

       (Ind. Ct. App. 2010), trans. denied).


[35]   Although Curtis involved an interlocutory appeal, we find the court’s reasoning

       equally applicable here. Conner did not raise his constitutional claims before

       the trial court, either in his written motion for discharge or at the hearing on the

       motion. Issues not raised at the trial level are generally waived on appeal. See

       id. Accordingly, Conner’s constitutional speedy-trial claims are forfeited.



                                               Conclusion
[36]   Conner was not entitled to discharge under Indiana Criminal Rule 4. Conner’s

       constitutional speedy-trial claims are waived.


[37]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-CR-1426 | July 13, 2016   Page 14 of 14
