                                                                              FILED
                                                                         Sep 12 2019, 11:04 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                        Jonathan A. Bont
Attorney General of Indiana                                Thomas D. Perkins
                                                           Mackenzie E. Skalski
Justin F. Roebel
                                                           Paganelli Law Group
Deputy Attorney General
                                                           Indianapolis, Indiana
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          September 12, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-CR-2985
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
Luke Bryon Fahringer,                                      The Honorable Randy Williams,
Appellee-Defendant.                                        Judge
                                                           Trial Court Cause No.
                                                           79D01-1610-F3-39



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019                            Page 1 of 11
                                 STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, State of Indiana (the State), brings this interlocutory appeal

      of the trial court’s Suppression Order.


[2]   We dismiss.


                                                     ISSUE
[3]   Although the State presents us with two issues on appeal, Appellee-Defendant,

      Luke Fahringer (Fahringer), filed a motion to dismiss the instant appeal in

      which he presented one issue, which we find dispositive and restate as:

      Whether the trial court abused its discretion when it certified its Suppression

      Order for interlocutory appeal.


                       FACTS AND PROCEDURAL HISTORY
[4]   On November 19, 2015, a detective with the Tippecanoe County Sheriff’s

      Department took a statement from an alleged victim, C.B., who reported that

      two men, whom she identified from a photographic array as Fahringer and

      Henry Williams (Williams), had taken her against her will and forced her to

      submit to a number of sexual acts. These forced sexual acts reportedly took

      place at a home on Rockingham Lane in Lafayette, Indiana, and in Fahringer’s

      truck. C.B. also reported that Fahringer used a cell phone to photograph C.B.’s

      identification card and threatened to kill her family if she reported the offenses.


[5]   Later that morning, investigators applied for a search warrant for the home on

      Rockingham Lane, Fahringer’s truck, Fahringer and Williams’ cell phones, and

      Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019    Page 2 of 11
      to take DNA samples from Fahringer and Williams. After the search warrant

      application had been submitted but before the warrant was granted, at

      approximately 10:30 a.m., investigators encountered Fahringer outside of the

      home on Rockingham Lane. Fahringer had his cell phone in his possession.

      Fahringer was not under arrest and was free to leave; however, the investigators

      informed Fahringer that they had applied for a search warrant and wished to

      take custody of his cell phone. Fahringer was allowed to use his cell phone to

      access telephone numbers and contact his attorney before surrendering it. The

      search warrant was issued at approximately 11:50 a.m., and a search of

      Fahringer’s cell phone revealed a photograph of C.B.’s identification card.


[6]   On October 14, 2016, the State filed an Information, charging Fahringer with

      strangulation, intimidation, kidnapping, conspiracy to commit rape, two

      Counts of criminal confinement, and three Counts of rape. On July 6, 2018,

      Fahringer filed a motion seeking to suppress evidence garnered following the

      warrantless seizure of his cell phone, which he argued was unreasonable under

      our federal and state Constitutions. 1 On July 9, 2018, after the selection of a

      jury but before the jury was sworn, the trial court held a hearing on the

      suppression motion. Fahringer’s trial was postponed.




      1
        The index to the State’s Appendix lists an “Order on Motion to Suppress Evidence” dated July 6, 2018, at
      page 72, but the order entered on that day by the trial court pertained to another pending motion.
      (Appellant’s App. Vol. I, p. 3; Vol. II, p. 72). The trial court did not rule on Fahringer’s Motion to Suppress
      on July 6, 2018.

      Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019                             Page 3 of 11
[7]   On July 12, 2018, the State filed its Motion for Time Extension Regarding

      Interlocutory Appeal in which it averred as follows:


                1. On July 10, 2018[,] the [c]ourt granted [Fahringer’s] motion
                   to suppress the cell phone seizure in the instant cause on the
                   record. 2 The State indicated it would like to seek
                   interlocutory appeal of that decision.


                2. At that time, the [c]ourt indicated to the State it would like a
                   formal, written motion for interlocutory appeal be [sic] filed
                   by Friday, July 13, 2018.


                3. Indiana Rules of Appellate Procedure Rule 14 indicates that
                   “[a] motion requesting certification of an interlocutory order
                   must be filed within thirty (30) days after the interlocutory
                   order is noted in the Chronological Case Summary unless the
                   trial court, for good cause, permits a belated motion.” The
                   [c]ourt’s order has not yet been attached to the Chronological
                   Case Summary at the time of the filing of this motion.


                4. Additionally, the State has been in contact with the Indiana
                   Attorney General’s Office which handles appellate matters for
                   the State of Indiana. The Attorney General’s office would
                   like a chance to review the [c]ourt’s order before proceeding
                   in this matter.


                5. For the above reasons, the State requests that it be allowed to
                   file its motion for interlocutory appeal later than Friday July




      2
          The trial court’s oral ruling was not transcribed for appeal.


      Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019          Page 4 of 11
                   13, 2018, but in accordance with Indiana Rules of Appellate
                   Procedure Rule 14.


      (Appellant’s App. Vol. II, p. 78). On July 16, 2018, the trial court granted the

      State’s motion seeking to file its request for interlocutory certification later than

      July 13, 2018. On July 26, 2018, the trial court entered its written order

      granting Fahringer’s Motion to Suppress, finding that the exigent circumstances

      exception to the warrant requirement did not apply.


[8]   On August 21, 2018, the State filed a motion to reconsider the trial court’s grant

      of Fahringer’s Motion to Suppress in which it argued new bases in opposition

      to suppression, namely that the search incident to arrest and plain view

      exceptions applied to the warrantless seizure of Fahringer’s cell phone. On

      September 21, 2018, the trial court held a hearing on the State’s Motion to

      Reconsider, and, on October 10, 2018, the trial court denied the State’s Motion

      to Reconsider.


[9]   On November 5, 2018, the State filed its Motion to Certify Orders for

      Interlocutory Appeal in which it averred that its Motion to Certify the trial

      court’s Suppression Order was


              not untimely due to the State’s initial oral request regarding that
              order as well as the State awaiting the [c]ourt’s ruling on the its
              [sic] timely filed Motion to Reconsider. This request is filed
              within thirty (30) days after the order denying the Motion to
              Reconsider appeared on the Chronological Case Summary. As
              such, the State submits there is good cause for granting this
              motion in regards to the [c]ourt’s order granting [Fahringer’s]
              Motion to Suppress.

      Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019        Page 5 of 11
       (Appellant’s App. Vol. II, p. 102). On November 19, 2018, the trial court

       certified for interlocutory appeal its July 26, 2018, Suppression Order and its

       October 10, 2018, order denying the State’s Motion to Reconsider. The trial

       court found “good cause” to grant certification in that “the State initially orally

       indicated it intended to request an interlocutory appeal of the [c]ourt’s oral

       ruling granting [Fahringer’s] Motion to Suppress.” (Appellant’s App. Vol. II, p.

       104). The trial court also found that the State had subsequently filed a timely

       motion to reconsider and had filed its request for interlocutory appeal

       certification within thirty days of the denial of that motion to reconsider.


[10]   On December 14, 2018, the State moved this court to accept jurisdiction over

       this interlocutory appeal. On January 18, 2019, the court’s motions panel

       granted the State’s motion and accepted jurisdiction. On January 31, 2019, the

       State filed its Notice of Appeal and thereafter filed a timely Brief of Appellant.

       On May 23, 2019, Fahringer filed his Brief of Appellee and a separate motion

       to dismiss in which he argued that the trial court abused its discretion in

       allowing the State to belatedly seek certification of its interlocutory Suppression

       Order. On May 30, 2018, the State filed its response to Fahringer’s Motion to

       Dismiss. On June 21, 2019, the court’s motions panel held Fahringer’s Motion

       to Dismiss in abeyance for resolution by the panel assigned to resolve the

       instant appeal.


[11]   The State now appeals. Additional facts will be provided if necessary.




       Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019    Page 6 of 11
                                DISCUSSION AND DECISION
[12]   The State has sought a discretionary appeal from an interlocutory suppression

       order. See Ind. Appellate Rule 14(B). The initiation of such an appeal is a two-

       step process, the first step of which is to obtain certification of the interlocutory

       order by the trial court. App. R. 14(B)(1). A motion for certification of an

       interlocutory order must be filed with the trial court within thirty days of the

       entry of the order on the case’s Chronological Case Summary (CCS) “unless

       the trial court, for good cause, permits a belated motion.” App. R. 14(B)(1)(a).

       When a trial court grants a belated motion, it must make a finding that its

       certification is based on a showing of good cause, and it must set forth its basis

       for that finding. Id. We review a trial court’s finding of good cause for an

       abuse of discretion. State v. Foy, 862 N.E.2d 1219, 1224 (Ind. Ct. App. 2007),

       trans. denied. An abuse of discretion occurs when the trial court’s decision to

       certify is clearly against the logic and effect of the facts and circumstances

       before the trial court or the reasonable and probable deductions to be drawn

       therefrom. Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d 515, 518 (Ind. Ct.

       App. 2010).


[13]   Here, the trial court entered its Suppression Order on the CCS on July 26, 2018.

       The State did not file its request to certify the Suppression Order for

       interlocutory appeal until November 5, 2018. The State’s request for

       certification was filed more than thirty days after the entry of the interlocutory

       order, and, therefore, was untimely. See App. R. 14(B)(1)(a). The trial court

       explained in its order granting the State’s request for certification that good

       Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019      Page 7 of 11
       cause for doing so existed because the State had notified the trial court orally of

       its intention to pursue an appeal after the trial court initially orally granted

       Fahringer’s Motion to Suppress on July 10, 2018. It also found that the State

       had pursued a motion to reconsider and filed its request for certification within

       thirty days of the denial of that motion to reconsider. In his Motion to Dismiss,

       Fahringer argues that the trial court abused its discretion in certifying the State’s

       belated request because the State’s oral notification to the trial court of its

       intention to pursue an interlocutory appeal did not constitute good cause and

       the State’s Motion to Reconsider did not toll the time for the State to initiate its

       appeal.


[14]   We agree with Fahringer. Indiana Appellate Rule 14(B)(1)(e) provides that if a

       trial court fails to rule on or set a certification motion for a hearing within thirty

       days of its filing, it is deemed denied. Had the trial court considered the State’s

       oral notification on July 10, 2018, of its intention to pursue an interlocutory

       appeal to be a request for certification, that request would have been deemed

       denied after thirty days elapsed—here, on August 9, 2018—without the trial

       court ruling on the motion or setting it for a hearing. After a certification

       request is deemed denied by operation of Rule 14(B)(1)(e), a trial court may not

       resuscitate that request later by belatedly granting the motion. Wise v. State, 997

       N.E.2d 411, 413 (Ind. Ct. App. 2013). However, even if the trial court had not

       construed the State’s oral notification of its intent to seek certification as an

       actual request to certify, to find such an oral notification to constitute good

       cause for a belated filing is to essentially allow a litigant to ignore the Rules of


       Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019      Page 8 of 11
       Appellate Procedure. This is not a case where the State was unaware of the

       strictures of Appellate Rule 14. The State quoted Appellate Rule 14 when it

       sought and was granted an extension of time of the trial court’s truncated July

       13, 2018, deadline for filing a certification request, and the State represented it

       would file its certification request “in accordance with Indiana Rules of

       Appellate Procedure Rule 14.” (Appellant’s App. Vol. II, p. 78).


[15]   Instead of filing a motion for certification, the State chose to file a motion to

       reconsider. Indiana Rule of Trial Procedure 53.4(A) provides that a motion to

       reconsider “shall not delay the trial or any proceedings in the case, or extend

       the time for any further required or permitted action, motion, or proceedings

       under these rules.” This court has noted that, although a party may properly

       file a motion with the trial court to reconsider an interlocutory ruling, the filing

       of such a motion is “fraught with danger” because it does not extend the time

       within which to seek an appeal of an interlocutory order. Johnson v. Estate of

       Brazill, 917 N.E.2d 1235, 1241 (Ind. Ct. App. 2009). Here, the State chose to

       pursue a motion to reconsider instead of immediately filing a request for

       certification of the trial court’s suppression order, which it was entitled to do.

       Id. However, the filing of that motion did not toll the time within which the

       State was required to file a certification request, and, therefore, contrary to the

       trial court’s conclusion here, it could not constitute good cause for a belated

       certification request.


[16]   In addition, a motion to reconsider is deemed denied if not ruled upon by the

       trial court within five days. T.R. 53.4(B). The State’s Motion for

       Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019     Page 9 of 11
       Reconsideration, filed August 21, 2018, was deemed denied five days later by

       operation of Trial Rule 53.4, and so its request for certification, filed on

       November 5, 2018, was not timely as to the denial of that trial court order.

       Even so, the State contends that it argued different grounds against suppression

       in its Motion to Reconsider and the trial court had the authority to create a

       new, appealable order by ruling on that motion. This argument is unavailing,

       as the trial court did not grant the Motion to Reconsider, and, thus, its

       Suppression Order did not change. See Johnson, 917 N.E.2d at 1241 (rejecting

       the argument that an order denying a motion to clarify and simply affirming the

       trial court’s previous ruling created a new, appealable order). We find,

       therefore, that neither rationale relied upon by the trial court in granting

       certification was within its discretion and that the State failed to show good

       cause for the belated filing of its request for certification. See Foy, 862 N.E.2d at

       1224.


[17]   Although the failure to initiate a timely interlocutory appeal does not deprive

       this court of jurisdiction, it results in forfeiture of the right to appeal absent

       “extraordinarily compelling reasons.” Snyder v. Snyder, 62 N.E.3d 455, 458

       (Ind. Ct. App. 2016). In its response to Fahringer’s Motion to Dismiss, the

       State argues that “[m]uch of the delay occurred while the parties where [sic]

       actively litigating the motion to reconsider including briefing and a hearing[,]”

       an argument which we find to be equally as unpersuasive for showing a

       compelling reason to ignore the State’s forfeiture of its appellate right as we did

       for showing good cause for filing a belated certification request. (Appellee’s


       Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019       Page 10 of 11
       Response to Motion to Dismiss, pp. 1-2). The State also argued in its response

       to the Motion to Dismiss that it, the trial court, and Fahringer, all agreed that

       the State would be allowed to seek interlocutory appeal of the trial court’s

       Suppression Order. Our review of the portion of the transcript cited by the

       State in support of Fahringer’s consent to an interlocutory appeal does not

       reveal that the parties specifically discussed the availability of interlocutory

       appeal. However, even if the parties and the trial court had all agreed that the

       State could pursue an interlocutory appeal after the resolution of the State’s

       Motion to Reconsider, the State does not offer us any authority for its apparent

       proposition that the Indiana Rules of Trial Procedure and Appellate Procedure

       may be flouted by mutual agreement. We find that the State has not presented

       us with any extraordinarily compelling reason to disregard its failure to pursue

       timely certification of the trial court’s suppression order, and we dismiss this

       appeal for procedural default.


                                              CONCLUSION
[18]   Based on the foregoing, we conclude that the trial court’s certification of its

       Suppression Order for interlocutory appeal was an abuse of its discretion, and

       we find no compelling reason to disregard the State’s failure to initiate a timely

       interlocutory appeal.


[19]   Dismissed.


[20]   Vaidik, C. J. and Bradford, J. concur



       Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019     Page 11 of 11
