FOR PUBLICATION                                           Aug 09 2013, 9:24 am




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                                 GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana

                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA


EDDIE SPALDING,                                  )
                                                 )
      Appellant-Defendant,                       )
                                                 )
             vs.                                 )      No. 49A04-1210-CR-534
                                                 )
STATE OF INDIANA,                                )
                                                 )
      Appellee-Plaintiff.                        )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Barbara J. Cook-Crawford
                   The Honorable Shatrese Flowers, Master Commissioner
                            Cause No. 49F19-1103-CM-15688


                                       August 9, 2013

                             OPINION - FOR PUBLICATION

BARNES, Judge
                                       Case Summary

      Eddie Spalding appeals the trial court’s denial of his motion to dismiss and

discharge. We affirm.

                                           Issue

      Spalding raises one issue, which we restate as whether the trial court properly

denied his motion to dismiss and discharge.

                                          Facts

      On March 7, 2011, Spalding was arrested and charged with Class A misdemeanor

operating while intoxicated, Class A misdemeanor resisting law enforcement, and Class

B misdemeanor public intoxication. On March 10, 2011, Spalding was released on bond.

On April 1, 2011, Spalding was held in the Marion County Jail on a United States

Marshal Service (“USMS”) hold. Although a hearing was scheduled for April 11, 2011,

Spalding failed to appear. A re-arrest warrant was issued and served that same day. On

April 12, 2011, Spalding appeared at a hearing and, according to jail records, was

returned to the jail. On May 10, 2011, the State moved for a continuance of the June 30,

2011 trial date, which the trial court granted. On June 2, 2011, Spalding was released to

the USMS.

      A pretrial conference was held on June 30, 2011, at which Spalding failed to

appear, and defense counsel informed the trial court that Spalding was apparently in

federal custody but confirmation was needed. The trial was rescheduled for July 1, 2011,

and Spalding again failed to appear.



                                              2
       On July 19, 2011, Spalding wrote a letter informing the trial court that he was in

federal custody in Kentucky and awaiting transfer to a facility in Oklahoma. The trial

court forwarded this letter to the State on July 25, 2011. On August 29, 2011, the State

petitioned for a writ of habeas corpus ad prosequendum requesting that Spalding be

transported for a September 28, 2011 hearing, which the trial court granted. Although the

writ was issued, federal authorities did not transport Spalding to that hearing.

       From October 21, 2011, through January 23, 2012, Spalding was incarcerated in

the Marion County Jail on a federal hold. It is not clear from the record why Spalding

was in the Marion County Jail during this time.

       On March 13, 2012, Spalding filed a motion to dismiss and discharge alleging that

372 days had passed since his arrest and that all of the delay was attributable to the State.

At a March 14, 2012 hearing, defense counsel informed the trial court that Spalding was

still in federal custody awaiting the adjudication of an alleged probation violation. On

March 28, 2012, another hearing was held, and the trial court ruled that the delays from

July 1, 2011, through July 25, 2011, September 28, 2011, through October 21, 2011, and

March 13, 2012, through March 28, 2012, were attributable to Spalding. The trial court

informed the parties, “from the date defense filed the motion, March 13th of this year to

today and any further proceedings will be charged to the defense.” Tr. p. 27. That same

day, the trial court granted defense counsel’s request to certify the issue for interlocutory

appeal.




                                              3
        On April 26, 2012, Spalding informed the trial court of his intent not to file an

appeal at that time and requested that a bench trial be set before June 4, 2012.1 At an

April 30, 2012 hearing, defense counsel informed the trial court that Spalding was in a

federal facility in Illinois. Defense counsel objected to a proposed trial date of June 7,

2012, and requested that trial be set before June 4, 2012. A trial was scheduled for May

31, 2012.

        Spalding was not transported to the May 31, 2012 trial, and defense counsel stated

that Spalding was still in federal custody and that his earliest release date was “[e]arly

2013.” Id. at 41. The trial court indicated that Spalding would not be transported until he

had executed his sentence. Defense counsel voiced his concerns about Spalding’s right to

a speedy trial and stated that he believed the Indiana Criminal Rule 4 date had already

passed and that, even based on the trial court’s calculations, the deadline would be June

5, 2012. Defense counsel objected to setting a trial date beyond that. The trial court set a

status hearing for November 1, 2012.

        On June 18, 2012, Spalding filed another motion to dismiss and discharge arguing

that, based on the trial court’s March 28, 2012 calculations, 370 days of delay were

attributable to the State. On August 23, 2012, after a hearing, the trial court denied the

motion. On September 27, 2012, Spalding belatedly requested the certification of the

order for interlocutory appeal, which the trial court granted. We accepted jurisdiction,

and Spalding now appeals.


1
 That same day, Spalding filed a petition for writ of habeas corpus ad testificandum and transport order.
Although it is not clear whether a writ was issued, he was not transported to the May 31, 2012 trial.
                                                   4
                                         Analysis

       Spalding argues that the trial court improperly denied his motion to dismiss and

discharge because the time limit for trying him has passed. This issue is a question of

law, which we review de novo. See Pelley v. State, 901 N.E.2d 494, 498 (Ind. 2009).

       Spalding contends that, of the 470 days from the date he was charged until the date

he filed his second motion to dismiss and discharge, only seventy-five days were

attributable to him. According to Spalding, the State failed to timely bring him to trial in

violation of Indiana Criminal Rule 4(C), which 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 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 responds by arguing, “because Defendant was in a foreign jurisdiction

for several months following his arrest and the filing of charges against him in Indiana,

Criminal Rule 4(C) does not apply to those time periods when he was outside the

jurisdiction.” Appellee’s Br. p. 9. Effectively, however, the State asks us to apply


                                             5
Criminal Rule 4(C) and attribute the time Spalding was incarcerated out of state to him.

According to the State, when considering the time Spalding was in federal custody

outside of Indiana, only 181 days are attributable to the Criminal Rule 4(C) time limit

and, therefore, the motion to dismiss and discharge was properly denied.

       When a defendant is incarcerated in another jurisdiction, there are two methods for

securing his or her presence in Indiana—the Interstate Agreement on Detainers (“IAD”),

codified at Indiana Code Section 35-33-10-4, and a writ of habeas corpus ad

prosequendum (“writ”), codified at Indiana Code Section 35-33-10-5. See Sweeney v.

State, 704 N.E.2d 86, 95 (Ind. 1998), cert. denied. “The decision of whether to use a

detainer or a Writ to obtain custody of a prisoner only arises when the prisoner is

confined in a federal prison; Writs are not available with respect to prisoners incarcerated

or confined in other states.” Id. at 97. There is no statutory mandate obligating the State

to file a detainer within a set time frame and, absent the filing of a detainer, the

provisions of the IAD are not triggered. Fisher v. State, 933 N.E.2d 526, 529-30 (Ind. Ct.

App. 2010). Here, the State did not file a detainer. Thus, the IAD and its provisions for

discharge do not apply. This does not necessarily mean, however, that Criminal Rule 4

does apply.

       Our supreme court has observed:

                      While it may be reasonable to impose the time limit of
              Criminal Rule 4(B) when a criminal defendant is within the
              exclusive control of the State of Indiana, for purposes of
              certainty and ease of administration of the rule, it becomes
              irrational to extend its application to a defendant who is
              incarcerated in another jurisdiction which has an interest in


                                             6
              retaining the defendant in its custody, either for trial or to
              serve a sentence.

Smith v. State, 267 Ind. 167, 171, 368 N.E.2d 1154, 1156 (1977) (restating a three-factor

test for determining whether, upon demand, the State has satisfied its constitutional duty

to make a diligent, good-faith effort to bring a defendant incarcerated out of state to trial).

In other words, “Indiana has long held that Criminal Rule 4 does not apply when a person

is incarcerated in a foreign jurisdiction.” Howard v. State, 755 N.E.2d 242, 245 (Ind. Ct.

App. 2001); see also Fisher, 933 N.E.2d at 529 (relying on Howard to conclude that

Criminal Rule 4 did not provide a basis for Fisher’s discharge). Our supreme court has

clarified, “the inapplicability of Criminal Rule 4 to defendants in foreign jurisdictions

should not extend to defendants who are brought into Indiana under Writs or other forms

of temporary custody.” Sweeney, 704 N.E.2d at 100.

       In Howard, the defendant was arrested in Indiana on September 2, 1998, and

formal charges were filed on September 9, 1998. We observed that, for purposes of

Criminal Rule 4, the clock began to tick on September 9, 1998.              Id. at 246.    On

September 15, 1998, at Howard’s initial hearing, defense counsel informed the State that

Howard was incarcerated in Kentucky. Relying on Smith, we concluded, “At this point,

Howard was not in the exclusive control of the State of Indiana. As a result, we find that

Criminal Rule 4 was inapplicable for Howard’s period of incarceration in Kentucky.” Id.

We determined that the date of Howard’s return to Indiana, September 3, 1999, was




                                              7
significant because that was when Howard was again within Indiana’s exclusive control

so as to make Criminal Rule 4 applicable again.2 Id.

        In rejecting Howard’s argument that Sweeney required the delay between his

informing the State of his whereabouts in Kentucky and the State lodging the detainer be

attributed to the State, we explained:

                        Our supreme court merely carved out a very limited
                exception to the Smith line of cases in Sweeney, thereby
                leaving intact its earlier decisions in Smith, Heflin, and
                Brown. Specifically, our supreme court concluded that while
                generally Criminal Rule 4 will not apply to defendants
                incarcerated in foreign jurisdictions, it is proper to apply
                Criminal Rule 4 to such defendants in the single instance
                where the State brings a defendant into Indiana under a form
                of temporary custody, but then voluntarily relinquishes
                control of that defendant to a foreign jurisdiction. Sweeney,
                704 N.E.2d at 100. Such was not the situation in Howard’s
                case. Thus, we follow the Smith line of cases and affirm the
                trial court's decision to deny Howard’s Motion for Discharge.

Id. 246-47.

        Here, following Howard, the Criminal Rule 4(C) clock began to tick on March 7,

2011, when Spalding was arrested and charged, and Criminal Rule 4 became inapplicable

in the Spring or Summer 2011.3 Although the State subsequently attempted to secure


2
   Although the State had lodged a detainer against Howard, because Howard never requested a final
disposition of those charges, we found that the 180-day period in which a defendant must be brought to
trial under the IAD was never triggered. Howard, 755 N.E.2d at 246. Because the application of the IAD
was not outcome determinative, it is not a basis for distinguishing Howard.
3
   It is arguable that Criminal Rule 4(C) no longer applied on April 1, 2011, when Spalding was in the
Marion County Jail under a USMS hold, on June 2, 2011, when he was released to the USMS, on June
30, 2011, when defense counsel informed the trial court and the State that Spalding was apparently
incarcerated out of state, or on July 25, 2011 when the State received written notice of Spalding’s
whereabouts. We decline to determine precisely when Criminal Rule 4(C) became inapplicable at this
stage of the proceedings because, depending on what delays are attributable to Spalding after he is
actually returned to Indiana’s exclusive control and when he is actually tried, the difference between April
                                                     8
Spalding’s presence in Indiana with a writ, he was not returned to Indiana pursuant to the

writ.4 Therefore, the Sweeney exception, which applied Criminal Rule 4 to defendants

who are brought into Indiana under writs or other forms of temporary custody, was not

triggered. See Sweeney, 704 N.E.2d at 100.

        Further, although it appears that Spalding was in the Marion County Jail from

October 21, 2011 through January 23, 2012, the record indicates that Spalding was there

on a federal hold. The federal hold, taken with the State’s assertion that there is no

evidence that the State or trial court knew Spalding had been transported, leads us to

conclude that Spalding was not in the jurisdiction under the exclusive control of Indiana

during this time.5 See id. at 100 n.27 (noting “that defendant’s speedy trial rights in

Indiana do not commence until he is within the jurisdiction and exclusive control of

Indiana authorities.”). Accordingly, when Spalding filed his second motion to dismiss

and discharge, he had not yet been returned to the jurisdiction and under the exclusive

control of the State of Indiana, and Criminal Rule 4(C) was still inapplicable.6



1, 2011, June 2, 2011, June 30, 2011, and July 25, 2011 may be of no significance for purposes of
Criminal Rule 4(C).
4
    The Sweeney court noted that the United States Supreme Court has held that state courts lack
jurisdiction to issue Writs to order the production, or otherwise interfere, with prisoners in federal custody
and that the federal government may, based on principles of comity, honor state-issued writs. Sweeney,
704 N.E.2d at 97 n.19. The federal government is not obligated to honor such writs, however, and they
were not honored here.
5
  Even if Spalding was in the jurisdiction under the exclusive control of Indiana when he was released on
bond and in the Marion County Jail under the federal holds (March 7, 2011, to June 2, 2011, and October
21, 2011, to January 23, 2012) and Criminal Rule 4 applied during those times, that only amounts to 181
days of the one-year period.
6
  Because of our holding that Criminal Rule 4 did not apply, we need not determine whether the time that
he was in federal custody was a delay attributable to him as the State asserts.
                                                      9
      Spalding urges us to follow McCloud v. State, 959 N.E.2d 879, 884 (Ind. Ct. App.

2011), trans. denied, which applied Criminal Rule 4(C) to a defendant who, after being

arrested in Indiana, was incarcerated in a federal facility in Oklahoma for ten months

before being returned to Indiana. In doing so, the McCloud court relied on Sweeney for

the proposition that “where no detainer was filed and the IAD did not apply, the

defendant was entitled to the protections of Criminal Rule 4 . . . .” McCloud, 959 N.E.2d

at 884. The McCloud court recognized that Sweeney was brought into Indiana on a writ

and noted, “we do not believe that the writ was significant or determinative of the Court’s

decision that Sweeney was entitled to Criminal Rule 4 protections.” Id. at 884 n.4.

      We do not agree with McCloud’s reading of Sweeney. In Sweeney, the court

addressed the State’s argument that, even though no detainer had been lodged, the IAD,

not Criminal Rule 4(C), applied because the defendant was incarcerated in a foreign

jurisdiction when the present charges were filed. Sweeney, 704 N.E.2d at 99. Sweeney

clarified prior holdings and observed that the IAD is applicable for purposes of a speedy

trial because a detainer has been lodged and not simply because the defendant is in a

foreign jurisdiction. Id. at 100. The Sweeney court further explained:

                     Heflin stated that “it is irrational to extend the
             application of Criminal Rule 4(B) to a defendant who is
             incarcerated in another jurisdiction.” [Heflin v. State, 275
             Ind. 197, 201, 416 N.E.2d 121, 124 (1981)] (citing Smith v.
             State, 267 Ind. 167, 368 N.E.2d 1154 (1977)). However, the
             inapplicability of Criminal Rule 4 to defendants in foreign
             jurisdictions should not extend to defendants who are brought
             into Indiana under Writs or other forms of temporary custody.
             This court has determined that defendants in Indiana criminal
             prosecutions have certain speedy trial rights which we have
             embodied in Criminal Rule 4. Where the legislature has

                                            10
                prescribed an alternate set of time deadlines as part of a
                broader statutory scheme as it has done in the IAD, we
                properly subordinate Criminal Rule 4 thereto. But where the
                state elects not to invoke the IAD for purposes of securing a
                defendant’s presence at trial, it cannot invoke selectively
                provisions of the IAD that it finds to its liking. Defendant
                here is entitled to the protections of Criminal Rule 4.

Id. (emphasis added).

        We take from Sweeney that, if the State does not lodge a detainer, the IAD does

not apply and the State cannot selectively invoke certain provisions of it. Further, if a

defendant is brought into Indiana under a writ or other form of temporary custody,

Criminal Rule 4 applies. As we read Sweeney, if a defendant who is incarcerated in

another jurisdiction is not brought into Indiana’s exclusive control, Criminal Rule 4 does

not apply even when the State does not lodge a detainer. To the extent McCloud reads

Sweeney to hold that Criminal Rule 4 applies whenever the IAD does not, we

respectfully disagree.

        Even when the IAD and Criminal Rule 4 do not apply, a defendant is not without

recourse—he or she may still raise a constitutional speedy trial argument. See Fisher,

933 N.E.2d at 530 (applying the four-part Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182,

(1972), test to determine whether constitutional right to a speedy trial was violated even

though the IAD and Criminal Rule 4 did not apply).7 Spalding, however, does not make a

Barker argument on appeal and, therefore, has not established that he was entitled to



7
  McCloud specifically declined to follow Fisher to the extent Fisher stands for the proposition that
Criminal Rule 4 has no application to a defendant who is incarcerated in a foreign jurisdiction. McCloud,
959 N.E.2d at 884.


                                                   11
discharge under a constitutional analysis. Because Criminal Rule 4(C) did not apply

while Spalding was not in the exclusive control of Indiana, he has not shown that the trial

court erroneously denied his motion to dismiss and discharge.

                                        Conclusion

          The trial court properly denied Spalding’s motion to dismiss and discharge. We

affirm.

          Affirmed.

NAJAM, J., and BAILEY, J., concur.




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