MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       May 01 2018, 9:07 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                    Curtis T. Hill, Jr.
Clark County Public Defender’s Office                   Attorney General
Jeffersonville, Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Elliot Edward Shelton,                                  May 1, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        10A05-1709-CR-2084
        v.                                              Appeal from the Clark Circuit
                                                        Court
State of Indiana,                                       The Honorable Bradley B. Jacobs,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause Nos.
                                                        10C02-1502-F6-154
                                                        10C02-1505-F4-037



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 10A05-1709-CR-2084 | May 1, 2018                   Page 1 of 7
                                            Case Summary
[1]   Elliot Edward Shelton brings this interlocutory appeal challenging the trial

      court’s denial of his motion for discharge under Criminal Rule 4(C). Finding

      no error, we affirm.



                              Facts and Procedural History
[2]   In February 2015, the State charged Shelton with multiple drug-related

      offenses, and a warrant was issued for his arrest under cause number 10C02-

      1502-F6-154 (“Case 154”). He still had not been arrested when, on May 16,

      2015, he was pulled over while driving. He was arrested on the outstanding

      warrant in Case 154. Then on May 21, the State filed additional gun- and drug-

      related charges against Shelton stemming from the traffic stop under cause

      number 10C02-1505-F4-37 (“Case 37”).1 Shelton was later released on bond.


[3]   Both cases were initially set for trial on October 20, 2015, but were moved to

      January 5, 2016, at Shelton’s request. In December 2015, the State failed to

      appear at a pretrial conference, so the trial court canceled the January 5 trials.

      The court reset the pretrial conference for January 20, 2016. Beginning on

      January 20, Shelton sought and was granted a series of continuances that

      delayed the case for eight months to September 22. Each entry that granted




      1
        In its brief, the State incorrectly says that Shelton was arrested and charged on March 16 and March 21,
      respectively. Appellee’s Br. p. 12. The State then uses these dates to calculate the Rule 4(C) timeline,
      resulting in an incorrect calculation of the one-year periods.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1709-CR-2084 | May 1, 2018                 Page 2 of 7
      Shelton a continuance stated that the delay was charged to the defendant, and

      Shelton or his attorney personally signed each form. Appellant’s App. Vol. II

      pp. 164, 171-73. On September 22, Shelton failed to appear at a pretrial

      conference, and a warrant was issued for his arrest. Shelton was arrested five

      months later in February 2017. A pretrial conference was held on February 27,

      and the court then set Shelton’s trials for July 18, 2017, without objection.2


[4]   On May 26, 2017, Shelton was appointed a new attorney, who immediately

      objected to the trial date in Case 154. Four days later, Shelton’s attorney

      moved for discharge under Rule 4(C) in Case 37. With some exceptions, Rule

      4(C) guarantees a defendant the right to stand trial within one year of arrest or

      the date charges are filed, whichever is later. A hearing on the motion was held

      on July 5, and Shelton’s attorney asked the court to “incorporate[] the same

      type of arguments” for his objection in Case 154. Tr. Vol. II p. 5. Shelton’s

      attorney argued that the State was beyond the one-year deadline set by Rule

      4(C) but that he had not been able to object or move for discharge because the

      State had failed to request and the court did not set trial dates after the January

      2016 trials were canceled. The trial court calculated the one-year periods and

      concluded that they had ended on July 4.3 The court, however, stated that due




      2
       Case 37 was originally reset for trial on June 6, 2017, but on June 2 it was moved to July 18 due to court
      congestion. Appellant’s App. Vol. II pp. 119-20. Case 154 was originally reset for trial on July 11, 2017, but
      on July 6 it was moved to October 31 due to court congestion. Id. at 9-10.
      3
        The trial court incorrectly calculated the Rule 4(C) deadline. The court began the one-year period for both
      cases on May 27, 2015, when the initial hearing in each case was held. The period started on May 16, 2015
      (the date of arrest) in Case 154 and on May 21, 2015 (the date charges were filed) in Case 37. See Ind. Crim.
      Rule 4(C) (“No person shall be held on recognizance or otherwise to answer a criminal charge for a period in

      Court of Appeals of Indiana | Memorandum Decision 10A05-1709-CR-2084 | May 1, 2018                 Page 3 of 7
      to court congestion it would not have been possible to try Shelton before July

      18. Id. at 19-20. The court then certified its order for interlocutory appeal.


[5]   This interlocutory appeal now ensues.



                                  Discussion and Decision
[6]   Shelton argues that he should not be charged with the eight-month delay from

      January 2016 to September 2016. He also contends that he was unable to raise

      an objection or move for discharge under Rule 4(C) during these eight months.


[7]   Rule 4(C) provides:


               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



      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[.]”) (emphases added). The court also erred
      when it counted Shelton’s request for a continuance of the October 20, 2015 trials against the State. See Tr.
      Vol. II p. 19; Appellant’s App. Vol. II pp. 41, 155. All other calculations by the court were correct, and we
      thank the court for its detailed explanation of its calculations, which aided in our review.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1709-CR-2084 | May 1, 2018                Page 4 of 7
              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.


      “The State’s duty to try the defendant within one year is affirmative, and the

      defendant is under no obligation to remind the State of its duty.” State v. Delph,

      875 N.E.2d 416, 420 (Ind. Ct. App. 2007), trans. denied. But the one-year period

      may be extended for various reasons, including “if a delay is caused by the

      defendant’s own motion or action[.]” Cook v. State, 810 N.E.2d 1064, 1066

      (Ind. 2014).


[8]   Shelton contends that the delay from January 2016 to September 2016 should

      be charged to the State because he was negotiating a plea agreement with the

      State during this time. He acknowledges that he requested each continuance

      that resulted in the eight-month delay, Appellant’s Br. p. 10, but argues that his

      situation is similar to the defendant in State v. Smith, 495 N.E.2d 539 (Ind. Ct.

      App. 1986), reh’g denied. In Smith, the State argued that the one-year period was

      tolled because it was engaged in plea negotiations with Smith. The trial court

      discharged Smith. We upheld the order because Smith did not abandon his

      right to be tried within one year because he engaged in plea negotiations and

      because Smith did not request a continuance and his actions did not delay the

      State in bringing him to trial within the one-year period. Here, Shelton is

      correct that engaging in plea negotiations does not relieve the State of its duty to

      bring him to trial within one year. However, unlike Smith, it is undisputed that




      Court of Appeals of Indiana | Memorandum Decision 10A05-1709-CR-2084 | May 1, 2018   Page 5 of 7
       Shelton requested each continuance that resulted in the eight-month delay,

       thereby extending the time the State had to bring him to trial.


[9]    Nevertheless, Shelton contends that the eight-month delay cannot be charged to

       him because it did not cause a delay in the trials since no trial dates were ever

       set during this time. This argument ignores the fact that, when the

       continuances were granted, Shelton personally signed the entry form which

       attributed the delay to him. His argument also runs afoul of our Supreme

       Court’s holding in Cook: “[W]hen 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.”

       810 N.E.2d at 1066-67. Accordingly, the eight-month delay from January 2016

       to September 2016 is charged to Shelton, not the State. Shelton was not

       entitled to discharge under Rule 4(C).


[10]   To assist the court with scheduling each case for trial, we calculate the time

       remaining under Rule 4(C). In Case 154, the period began on May 16, 2015,

       and ran until October 20, 2015—158 days. The period resumed on January 6,

       2016, and ran until January 20, 2016—15 days. The period did not start again

       until February 27, 2017, and ended on July 11, 2017—135 days. In total, 308

       days have elapsed in Case 154, leaving the State with 57 days in the one-year

       period. As for Case 37, the State’s time began on May 21, 2015, and ran until

       October 20, 2015—153 days. The period ran again from January 6, 2016, to

       January 20, 2016—15 days. The period resumed on February 27, 2017, and

       stopped on June 6, 2017—100 days. In total, 268 days have elapsed in Case 37,

       Court of Appeals of Indiana | Memorandum Decision 10A05-1709-CR-2084 | May 1, 2018   Page 6 of 7
       leaving the State with 97 days in the one-year period. All other time periods in

       both cases are charged either to Shelton or the court.


[11]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A05-1709-CR-2084 | May 1, 2018   Page 7 of 7
