      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Dec 31 2019, 7:26 am

      court except for the purpose of establishing                                CLERK
      the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Denise L. Turner                                         Curtis T. Hill, Jr.
      DTurner Legal, LLC                                       Attorney General of Indiana
      Indianapolis, Indiana
                                                               Ellen H. Meilaender
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jason M. Middleton,                                      December 31, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-512
              v.                                               Appeal from the Shelby Circuit
                                                               Court
      State of Indiana,                                        The Honorable Trent E. Meltzer,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               73C01-1806-F6-293



      Mathias, Judge.


[1]   Following a jury trial in Shelby Circuit Court, Jason M. Middleton

      (“Middleton”) was convicted of Level 6 felony counterfeiting and sentenced to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019                Page 1 of 12
      twenty-five months of incarceration. Middleton appeals and claims that the trial

      court erred by denying his Criminal Rule 4(B) motion to dismiss.


[2]   We affirm.


                                    Facts and Procedural History
[3]   On December 20, 2017, the State charged Middleton in Cause No. 73D01-

      1712-F3-22 (“Cause No. F3-22”) with Level 3 felony kidnapping while armed

      with a deadly weapon, Level 3 felony criminal confinement while armed with a

      deadly weapon, Level 5 felony battery resulting in serious bodily injury, and

      Level 6 felony strangulation. Middleton entered into a plea agreement in that

      cause on March 26, 2018. Pursuant to the terms of this agreement, Middleton

      pleaded guilty to the battery and strangulation charges, and the State dismissed

      the remaining charges. The trial court sentenced Middleton to an aggregate

      term of ten years in that cause.


[4]   On June 11, 2018, the State charged Middleton in the present cause, Cause No.

      73C01-1806-F6-293 (“Cause No. F6-293”) with Level 6 felony counterfeiting,

      alleging that he submitted a forged document to the court in Cause No. F3-22.1

      A warrant was issued for his arrest the next day. At the initial hearing held on

      August 7, 2018, Middleton orally requested a fast and speedy trial. The trial




      1
        The State alleged that Middleton, in his post-trial motion to set aside his conviction in Cause No. F3-22,
      included a fraudulently file-stamped copy of a motion for a speedy trial in that case.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019                   Page 2 of 12
      court therefore set an initial trial date of October 9, 2018, and appointed

      counsel for Middleton.


[5]   On September 24, 2018, the State filed a combined motion to continue and

      motion to release Middleton on his own recognizance. In this motion, the State

      requested a continuance due to the ongoing plea negotiations between

      Middleton and the State. Also on September 24, 2018, Middleton filed a pro se

      motion seeking to discharge his appointed counsel and be appointed different

      counsel. In this pro se motion, Middleton objected to any trial date other than

      October 9.


[6]   The following day, the trial court granted the State’s combined motion to

      continue and to release Middleton on his own recognizance. In its order

      granting the State’s motion, the trial court set a new trial date of December 10,

      2018. Middleton did not object to this continuance or to the new trial date.

      Even though the trial court granted the State’s motion to release Middleton on

      his own recognizance in the present case, Middleton remained incarcerated as a

      result of the sentence imposed in Cause No. F3-22.


[7]   The trial court held a hearing on Middleton’s pro se motion for new counsel on

      October 9, 2018, and, two days later, referred Middleton to the county public

      defender’s office for reassignment of counsel. A new public defender filed an

      appearance on Middleton’s behalf on October 12, 2018. This new counsel made

      no objection to the State’s previous request for a continuance.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 3 of 12
[8]    Instead, on December 6, 2018, Middleton, by counsel, filed a motion to dismiss

       claiming that his trial had not been held within seventy days as required by

       Criminal Rule 4(B). The trial court denied this motion the same day, noting

       that Middleton had been released on his own recognizance in the present cause,

       the Level 6 felony counterfeiting charge, on September 25, 2018. The court

       therefore concluded that Criminal Rule 4(B) was inapplicable.


[9]    As scheduled, a jury trial was held on December 10, 2018, at the conclusion of

       which the jury found Middleton guilty of Level 6 felony counterfeiting. On

       December 20, 2018, the trial court sentenced Middleton to twenty-five months

       of incarceration, to be served consecutively to the sentence previously imposed

       in Cause No. F3-22. Middleton did not timely file a notice of appeal.


[10]   On March 4, 2019, Middleton filed a petition for permission to file a belated

       notice of appeal. The trial court granted this petition the same day, and

       Middleton filed a belated notice of appeal on March 6, 2019. On June 12, 2019,

       Middleton filed a motion in this court to stay the appeal and remand to the trial

       court. We granted this motion on June 24, 2019, and ordered Middleton to file

       a belated motion to correct error within five days of our order.


[11]   That same day, Middleton filed in the trial court a “Verified Trial Rules 59 and

       60 Belated Motion to Correct Error and Set Aside Judgment.” Appellant’s App.

       p. 44. Attached to his motion, Middleton submitted Shelby County Jail records

       that showed him as having “[n]o bond” in the present case. Appellant’s App. p.

       54. The jail records also show that there was a Department of Correction


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 4 of 12
       (“DOC”) “Hold for Plainfield” for Middleton with “[n]o bond” based on his

       prior conviction in Cause No. F3-22. Id. The jail records state that Middleton

       was held in the Shelby County Jail from his arrest on August 7, 2018 until he

       was transferred back to the custody of the DOC on December 21, 2018. Id.

       Middleton therefore argued that, despite the trial court’s order releasing him on

       his own recognizance, he was never actually released in the present case and

       that the time limits of Criminal Rule 4(B) were applicable. The trial court

       denied Middleton’s motion to correct error on July 3, 2019, again concluding

       that “Criminal Rule 4(B) was not available to Defendant because he was not

       incarcerated on the pending charge.” Appellant’s App. p. 62. Middleton now

       appeals.


                                          Standard of Review
[12]   Our standard for reviewing a trial court’s ruling on a Criminal Rule 4 motion

       depends on the nature of decision made by the trial court. Tinker v. State, 53

       N.E.3d 498, 502 (Ind. Ct. App. 2016). If the trial court’s decision was based on

       undisputed facts, then our review is, like for all questions of law, de novo. Id.

       (citing Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013)). If, however, the court

       made factual findings regarding such things as court congestion or emergency,

       then our review is for clear error. Id. (citing Austin, 997 N.E.2d at 1040). Under

       a review for clear error, we neither reweigh the evidence nor determine the

       credibility of witnesses and instead consider only the probative evidence and

       reasonable inferences supporting the trial court’s ruling. Id. We will reverse only



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 5 of 12
       upon a showing of error that “‘leaves us with a definite and firm conviction that

       a mistake has been made.’” Id. (quoting Austin, 997 N.E.2d at 1040).


                                              Criminal Rule 4(B)
[13]   Both the Sixth Amendment to the United States Constitution and Article 1,

       Section 12 of the Indiana Constitution protect the right of an accused to a

       speedy trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). In Indiana, the

       constitutional right to speedy trial is generally implemented by Criminal Rule

       4(B),2 which provides in relevant part that “[i]f 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 of such motion.” Crim.

       Rule 4(B)(1). “It is well established that Criminal Rule 4 places an ‘affirmative

       duty’ on the State to bring a defendant to trial.” Cundiff, 967 N.E.2d at 1028

       (quoting Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011)). “By the same

       token, the purpose of Criminal Rule 4 is not to provide defendants with a

       technical means to avoid trial but rather to assure speedy trials.” Id. (citing Loyd

       v. State, 272 Ind. 404, 410, 398 N.E.2d 1260, 1266 (1980)).


[14]   Although a defendant has no obligation to remind the State of this duty or to

       remind the trial court of the State’s duty, State v. Jackson, 857 N.E.2d 378, 380

       (Ind. Ct. App. 2006), a defendant must still object “at his earliest opportunity,




       2
         Although Criminal Rule 4 implements a defendant's constitutional right to a speedy trial, courts review
       claims of Criminal Rule 4 violations separately and distinctly from claims of the constitutional right to a
       speedy trial. Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019                   Page 6 of 12
       to a trial setting that is beyond the seventy-day time period[.]” Hill v. State, 777

       N.E.2d 795, 797–98 (Ind. Ct. App. 2002), opinion on reh’g. “A defendant who

       permits the court, without objection, to set a trial date outside the 70–day limit

       is considered to have waived any speedy trial request.” Hahn v. State, 67 N.E.3d

       1071, 1080 (Ind. Ct. App. 2016), trans. denied.


                                      Discussion and Decision
[15]   Middleton argues that the trial court erred by denying his motion for discharge

       and his motion to correct error, having claimed in both that he was not brought

       to trial within the seventy-day time limit set forth in Criminal Rule 4(B). We

       disagree.


                                                     I. Waiver

[16]   Middleton was arrested in the present case on August 7, 2018. At the initial

       hearing held the day of his arrest, Middleton requested a speedy trial. Pursuant

       to Criminal Rule 4(B), Middleton had to be brought to trial within seventy days

       of this request, i.e., no later than October 16, 2018. The trial court set an initial

       trial date of October 9, 2018, within this time limit. On September 24, 2018,

       prior to the scheduled trial date, the State filed a motion to continue the trial.

       The trial court granted the State’s motion to continue and set a new trial date of

       December 10, 2018, which was outside the seventy-day time limit of Criminal

       Rule 4(B). Middleton, however, did not object to the continuance or the new

       trial date.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 7 of 12
[17]   Thus, the trial court, acting within the seventy-day time limit of Criminal Rule

       4(B), set the trial for a date outside the seventy-day time limit, but Middleton

       did not object. He therefore waived his claim to a speedy trial. See Hahn, 67

       N.E.3d at 1080 (holding that defendant waived his speedy trial request when his

       counsel failed to object to the trial date at the pre-trial conference where the

       court set the trial date); see also Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997)

       (“A defendant who permits the court, without objection, to set a trial date

       outside the seventy day limit will be deemed to have acquiesced therein.”); cf.

       Ratliff v. State, 132 N.E.3d 41, 43 (Ind. Ct. App. 2019) (noting that, under

       Criminal Rule 4(C), “[w]hen a trial court, during the one-year period, schedules

       a trial date outside of the one-year period, the defendant must object in order to

       give the trial court an opportunity to cure its mistake.”), trans. pending.3


[18]   Our conclusion is not altered by the fact that Middleton filed a pro se motion on

       September 24, 2018, seeking new counsel and objecting to any trial date other

       than October 9, 2018. This pro se motion was filed while Middleton was still

       represented by counsel, and a trial court may, in its discretion, refuse to

       consider pro se filings by parties represented by counsel. See Underwood v. State,

       722 N.E.2d 828, 832 (Ind. 2000) (“[O]nce counsel was appointed, Defendant

       spoke to the court through counsel. The trial court was not required to respond

       to Defendant’s request [for a speedy trial] or objection [to counsel’s request for a


       3
         Middleton’s citation to Jackson v. State, 663 N.E.2d 766 (Ind. 1996), is unavailing. In that case, defense
       counsel “strenuous[ly]” objected when the trial court continued the trial date to one outside the seventy-day
       time limit of Criminal Rule 4(B). Id. at 768. Here, Middleton’s counsel made no such objection, and Jackson
       is therefore not controlling.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019                  Page 8 of 12
       continuance.”); Hill v. State, 773 N.E.2d 336, 342 (Ind. Ct. App. 2002) (holding

       that defense counsel’s failure to object to a continuance acted to waive

       defendant’s speedy trial request even though defendant personally objected to

       the continuance and requested to go to trial on the originally scheduled trial

       date), aff’d in relevant part on reh’g, trans. denied.


                                    II. Criminal Rule 4(B) Inapplicable

[19]   Even if Middleton did not waive his right to be tried within seventy days, he

       would still not prevail in his claim that the trial court erred in denying his

       motion for discharge. As found by the trial court, Middleton was released on

       his own recognizance in the present case. “Once released from custody, a

       defendant receives no further benefit from Crim. R. 4(B).” Parker v. State, 965

       N.E.2d 50, 52 (Ind. Ct. App. 2012) (citing Williams v. State, 631 N.E.2d 485,

       486 (Ind. 1994)), trans. denied. “Instead, a non-incarcerated defendant’s right to

       a speedy trial is implemented by the one-year limitation period contained in

       Crim. R. 4(C).” Id. (citing Williams, 631 N.E.2d at 487).


[20]   Middleton notes that, although the trial court granted the State’s motion to

       release him on his own recognizance, he remained in jail. But the reason

       Middleton remained in jail was because there was a DOC hold on him based

       on his ten-year sentence in Cause No. F3-22. That is, Middleton was not being

       detained in the present case after the trial court’s order releasing him on his own

       recognizance; he was being detained for the sentence in the prior case.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 9 of 12
[21]   “[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge for

       which he seeks a speedy trial, and as long as that requirement is met, the

       availability of Rule 4(B) is not affected if the defendant is also incarcerated on

       other grounds.” Cundiff, 967 N.E.2d at 1031 (citing Poore v. State, 685 N.E.2d

       36, 40 (Ind. 1997)). Here, after the trial court released Middleton on his own

       recognizance, Middleton was no longer incarcerated on the charge for which he

       sought a speedy trial, and Criminal Rule 4(B) was therefore inapplicable.


[22]   Middleton seeks to distinguish his case from Cundiff, noting that the defendant

       in that case was arrested and then posted bond. While out on bond, he was

       arrested for a probation violation in an unrelated case. While in custody for the

       probation violation, Cundiff requested a speedy trial in the case in which he had

       been released on bond. Our supreme court held that Criminal Rule 4(B) was

       inapplicable because Cundiff was not incarcerated on the charge for which he

       sought a speedy trial. Id.


[23]   Here, Middleton notes that he was incarcerated in one case, later charged in the

       present case, subsequently “released” in the present case, but remained

       incarcerated in the first case. We think this to be a distinction from the facts of

       Cundiff without a meaningful difference. The relevant facts of this case and

       Cundiff are similar: in both cases the defendants sought a speedy trial but were

       not incarcerated on the charge for which they sought a speedy trial. Thus,

       Criminal Rule 4(B) is inapplicable.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 10 of 12
[24]   Middleton nevertheless argues that, despite the trial court’s order releasing him

       on his own recognizance, he was still being detained on the charges in the

       present case. In support of this argument, he notes that the Shelby County Jail

       records show that he was held with “no bond” in the present case. Appellant’s

       App. p. 54. He also claims that, although the trial court granted the State’s

       motion to release Middleton on his own recognizance, “it failed to make a

       specific directive regarding Middleton’s custody/release status.” Appellant’s Br.

       p. 10. We are not persuaded.


[25]   Perhaps the trial court’s order granting the State’s motion to release Middleton

       on his own recognizance could have explicitly ordered the jail to release

       Middleton on his own recognizance in the present case. But this would not

       have meant that the jail would have actually released him, as there was still a

       DOC hold on him due to his incarceration in Cause No. F3-22. Moreover, we

       think it relatively straightforward that the trial court’s order granting the State’s

       motion “to release the defendant on his own recognizance” acted to release

       Middleton from incarceration on the charges in the present case only. That the

       jail records fail to note this is not dispositive.


[26]   The bottom line is that the trial court granted the State’s motion to release

       Middleton on his own recognizance in the present case, and after this order,

       Middleton was no longer incarcerated as a result of the charges in the present

       case. He was instead being held based on the sentence in the prior case. Because

       he was not being held on charges in the present case, Criminal Rule 4(B) was

       inapplicable. Cundiff, 967 N.E.2d at 1031.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 11 of 12
                                                 Conclusion
[27]   Middleton waived his right to a speedy trial by failing to object when the trial

       court continued the trial to a date outside the seventy-day time limit of Criminal

       Rule 4(B). This waiver notwithstanding, Criminal Rule 4(B) was inapplicable

       after the trial court ordered Middleton released on his own recognizance in the

       present case, despite the fact that he remained in jail due to his sentence in a

       prior case. Thus, the trial court did not err by denying Middleton’s motion to

       dismiss or his motion to correct error. We therefore affirm the judgment of the

       trial court.


[28]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019   Page 12 of 12
