                                                                       FILED
                                                                  May 06 2020, 8:42 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
J. Clayton Miller                                        Curtis T. Hill, Jr.
Jordan Law, LLC                                          Attorney General of Indiana
Richmond, Indiana                                        Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Noelker,                                          May 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2384
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         89C01-1507-F3-49



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020                            Page 1 of 13
                                Case Summary and Issue
[1]   Following a jury trial, Justin Noelker was found guilty of robbery, a Level 3

      felony, and he subsequently admitted to being an habitual offender. The trial

      court sentenced him to fifteen years at the Indiana Department of Correction,

      enhanced by fifteen years for his habitual offender status. Noelker appeals,

      raising one issue for our review: whether the trial court erred in denying his

      pre-trial motion to dismiss because he was not tried within the time period

      allowed by the Interstate Agreement on Detainers (“IAD”). Concluding the

      trial court did not err in denying his motion to dismiss because, due to delays

      attributable to Noelker, the time period had not yet expired when he was

      brought to trial, we affirm.



                            Facts and Procedural History
[2]   On July 28, 2015, the State charged Noelker with robbery, a Level 3 felony, for

      an incident that occurred on February 20, 2015. He was also alleged to be an

      habitual offender. At the time the information was filed, Noelker was

      incarcerated in Florida for allegedly stabbing two people on March 16, 2015. A

      warrant was issued for Noelker’s arrest on the robbery charge.


[3]   Noelker was arrested on the warrant on June 19, 2017, and returned to Indiana.

      At an initial hearing held on June 27, a public defender was appointed to

      represent him and trial was set for September 26. On August 30, Noelker, by

      counsel, moved for a continuance of the trial date to allow additional time to


      Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020          Page 2 of 13
      complete discovery, negotiations, and investigation. Appellant’s Appendix,

      Volume 2 at 31. The motion was granted, and trial was re-set for November 28.

      On October 12, the trial court received a letter from Noelker requesting a new

      public defender. At a hearing on October 23, the trial court granted Noelker’s

      request, vacated his previous public defender’s appointment, and appointed a

      new public defender. Trial remained set for November 28. However, at a pre-

      trial conference on October 30, newly appointed counsel requested a

      continuance and trial was rescheduled for January 30, 2018.


[4]   At pre-trial conferences on January 8 and March 5, 2018, Noelker’s counsel

      again requested and was granted continuances, resulting in trial ultimately

      being set for June 5. In a letter to the court dated April 8, Noelker requested an

      immediate dismissal of the charges against him because he had been extradited

      from Florida on June 19, 2017 and had not yet been tried in violation of the

      time provisions of the IAD. Because Noelker was represented by counsel, the

      trial court took no action on his letter. At least five motions for continuance

      were requested by the defense thereafter and trial was ultimately set for May 7,

      2019. At a pre-trial conference on April 10, 2019, Noelker’s counsel

      acknowledged that from the first request for a continuance in August 2017 until

      the most recent trial setting, “[a]ll the continuances . . . were continuances by

      defense counsel so those dates don’t toll toward the IAD request.” Amended

      Transcript of Evidence, Volume II at 29-30.


[5]   Subsequently, “disputes arose between the parties regarding the use of a video

      deposition in lieu of live trial testimony.” Appellant’s App., Vol. 2 at 82.

      Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020           Page 3 of 13
Specifically, Noelker was identified and apprehended in Florida on the Indiana

warrant after Noelker’s DNA was collected in Florida and sent to Indiana. 1

The parties agreed to conduct a video deposition of the person who collected

the DNA and use the deposition in lieu of live testimony at trial. During the

deposition, at which Noelker was present, it was discovered that a second

person had mailed the sample, requiring a deposition of that person for chain of

custody purposes. The week before trial, and before the second deposition

could be conducted, Noelker’s counsel advised the State that Noelker would

not sign the stipulation allowing use of the video depositions and filed a motion

to exclude. The trial court held a hearing on the motion on April 30, 2019.

The State noted that one witness was in Florida and the other in Nevada and

Noelker’s last-minute refusal to agree to the procedure the parties had been

operating under meant the State had two choices: “A. I try to fly these people

in at the last second . . ., or B. . . . had I known there was going to be an

objection I would have simply said well, okay, let’s . . . take a new sample.

We’ll resubmit it and we’ll just do testing a second time[.] [C]an we [fly two

people in]? Uh, we can if there’s enough lead time[.]” Tr., Vol. II at 40. At the

conclusion of the hearing, the trial court determined that a continuance was

necessary and vacated the May 7 trial date “because the State had relied to its




1
  Evidence collected at or near the scene of the crime included the DNA of the victim and a second person.
During the investigation, there was a “CODIS hit” on the unknown DNA, preliminarily indicating the DNA
was Noelker’s. Tr., Vol. II at 37. The State enlisted the help of Florida officials, where Noelker was then
incarcerated, in getting a DNA sample for confirmatory testing. Because identity was at issue in the case, the
State needed to present the DNA evidence and therefore needed to establish a chain of custody.

Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020                                   Page 4 of 13
      detriment upon [Noelker’s] earlier agreements relative to the admission of the

      video deposition(s) [and] could not procure the witnesses[’] appearance for trial

      on such short notice.” Appellant’s App., Vol. 2 at 83.


[6]   On May 8, the trial court issued an Order Regarding Matters Pertaining to

      Interstate Agreement on Detainers. The trial court noted that the parties agreed

      Noelker was before the court pursuant to the provisions of the IAD and

      stipulated that as of the date of the hearing, Noelker had been held for trial in

      Indiana for 128 days before the first defense continuance and fifty-two days

      remained in which to bring Noelker to trial. The court further noted that due to

      the circumstances, it must “determine which party bears responsibility for the

      days ‘lost’ due to the vacation of the most recent trial date.” Id. The court

      reviewed the procedural history of the case to that point, noting the many

      continuances requested or delays prompted by Noelker,2 and then concluded:


               [T]hese various matters set forth in the preceding pages of this
               order are intended not to portray [Noelker] as a “bad person” for
               any purpose, but are included only as factors considered by the
               Court in it’s [sic] determination of [Noelker’s] accountability for
               the delay cause[d] by his conscious last-minute decision to revoke
               his consent regarding the parties’ agreement to utilize video
               depositions in lieu of live trial testimony. In this Court’s
               judgment, [Noelker’s] decision to withdraw his consent after the
               State of Indiana had relied to its detriment upon his earlier
               acquiescence is representative of [Noelker’s] contumacy and



      2
        In addition to requesting the replacement of his public defender in October 2017, Noelker indicated a desire
      to proceed pro se four times during the course of these proceedings. Each time, the trial court held a status
      conference, and each time, Noelker withdrew his request. See id. at 84-86.

      Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020                                   Page 5 of 13
                 frowardness which he has demonstrated throughout the duration
                 of these proceedings.


                 Accordingly, the Court now finds that vacation of the May 7,
                 2019 trial date in this cause, as well as the resulting reasonable
                 delay in any rescheduling of this matter for trial, shall be
                 attributed to [Noelker].


      Id. at 86. On May 9, Noelker’s jury trial was reset to August 6. See id. at 11.3


[7]   The State collected its own DNA sample from Noelker to eliminate the need for

      the out-of-state witnesses and Noelker’s jury trial commenced as scheduled on

      August 6, 2019. After the jury was selected and sworn but before the

      presentation of evidence began, Noelker moved for dismissal based on violation

      of the IAD. Noelker acknowledged the May 8 order determined that the delay

      was attributable to the defense but objected to that determination. Noelker

      further acknowledged that at the time of the trial court’s order the parties had

      stipulated fifty-two days remained in the IAD period but noted that time period

      had been exceeded. The trial court denied the motion to dismiss, citing its

      earlier order, and the trial proceeded. The jury found Noelker guilty of robbery

      as charged and he thereafter admitted to his status as an habitual offender.

      Noelker now appeals.




      3
          Ninety-eight days elapsed between April 30 and August 6, 2019.


      Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020                 Page 6 of 13
                                 Discussion and Decision
                                     I. Standard of Review
[8]   The ruling on a motion to dismiss under the IAD is a question of law that we

      review de novo. State v. Smith, 882 N.E.2d 739, 742 (Ind. Ct. App. 2008).

      However, we review the findings underlying the ruling under a clearly

      erroneous standard. Id. Findings are “clearly erroneous” when the record lacks

      any facts or reasonable inferences to support them. Schrenker v. State, 919

      N.E.2d 1188, 1192 (Ind. Ct. App. 2010), trans. denied.


                       II. Interstate Agreement on Detainers
[9]   “A detainer is ‘a notification filed with the institution in which a prisoner is

      serving a sentence, advising that he is wanted to face pending criminal charges

      in another jurisdiction.’” Webb v. State, 437 N.E.2d 1330, 1331 (Ind. 1982)

      (quoting United States v. Mauro, 436 U.S. 340, 359 (1978)). The IAD is an

      agreement among forty-eight states, the District of Columbia, Puerto Rico, and

      the United States creating uniform procedures for lodging and executing a

      detainer. Conn v. State, 831 N.E.2d 828, 830 (Ind. Ct. App. 2005), trans. denied;

      Ind. Code § 35-33-10-4, Art. 2(a) (defining “state”). Both Indiana and Florida

      are parties to the IAD. Ind. Code § 35-33-10-4; Fla. Stat. § 941.45. The

      purpose of the IAD is to “encourage the expeditious and orderly disposition of

      outstanding charges against persons already incarcerated” in another

      jurisdiction. State v. Robinson, 863 N.E.2d 894, 896 (Ind. Ct. App. 2007), trans.

      denied. Essentially, the IAD governs the speedy trial rights of a defendant

      Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020            Page 7 of 13
       incarcerated in a foreign jurisdiction. State v. Thompson, 687 N.E.2d 225, 227

       (Ind. Ct. App. 1997); see also Fisher v. State, 933 N.E.2d 526, 529 (Ind. Ct. App.

       2010) (noting that “Indiana has long held . . . that [Criminal Rule 4] does not

       apply when a person is incarcerated in a foreign jurisdiction”; we apply the

       IAD instead) (quotation omitted). In relevant part, the statute provides:


               (a) Whenever a person has entered upon a term of imprisonment
               in a penal or correctional institution of a party state, and
               whenever during the continuance of the term of imprisonment
               there is pending in any other party state any untried indictment,
               information or complaint on the basis of which a detainer has
               been lodged against the prisoner, he shall be brought to trial within
               one hundred eighty (180) days after he shall have caused to be
               delivered to the prosecuting officer and the appropriate court of
               the prosecuting officer's jurisdiction written notice of the place of
               his imprisonment and his request for a final disposition to be
               made of the indictment, information or complaint; provided that
               for good cause shown in open court, the prisoner or his counsel
               being present, the court having jurisdiction of the matter may grant any
               necessary or reasonable continuance.


       Ind. Code § 35-33-10-4, Art. 3(a) (emphasis added).


[10]   The IAD process begins when the state bringing charges against a defendant in

       custody in another IAD jurisdiction files a detainer. Robinson, 863 N.E.2d at

       896. Once the detainer is filed, the defendant may file a request for final

       disposition, which triggers the requirement under the IAD that he be brought to




       Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020                Page 8 of 13
       trial within 180 days. Fisher, 933 N.E.2d at 529.4 The IAD is analogous to

       Criminal Rule 4(B) and case law interpreting the time provisions of Rule 4(B)

       are instructive in determining the circumstances under which a defendant may

       be entitled to discharge under the IAD. Allen v. State, 636 N.E.2d 190, 193 (Ind.

       Ct. App. 1994), trans. denied; see Ind. Crim. R. 4(B) (“If any defendant held in

       jail . . . shall move for an early trial, he shall be discharged if not brought to trial

       within seventy (70) calendar days from the date of such motion, except where a

       continuance within said period is had on his motion, or the delay is otherwise

       caused by his act[.]”).


[11]   Noelker contends the trial court erred in attributing the delay of the May 7 trial

       date to him, and accordingly, argues he was tried outside the 180-day time limit

       when he was tried on August 6. The State argues Noelker waived any error in

       the trial date. “A defendant applying for discharge pursuant to the IAD may be




       4
         We note that the record before us does not indicate the filing of a formal detainer. However, in Crawford v.
       State, 669 N.E.2d 141, 148-49 (Ind. 1996), our supreme court determined that an arrest warrant is a detainer
       for purposes of the IAD if it is based upon an untried information. The trial court did issue an arrest warrant
       for Noelker in August 2015 after the information was filed, see Appellant’s App., Vol. II at 22, and as it was
       based upon untried charges, it suffices to serve as a detainer in this case.
       We also note there is no request for final disposition by Noelker apparent in the record before us. The first
       mention of the IAD in the record is Noelker’s April 8, 2018 letter to the court requesting an immediate
       dismissal for failure to bring him to trial within 180 days. The IAD “‘unquestionably requires delivery’” of a
       request for final disposition to both the court and the prosecutor in the jurisdiction that lodged the detainer,
       “and without delivery, the IAD’s 180-day clock ‘does not commence.’” Bowling v. State, 918 N.E.2d 701, 706
       (Ind. Ct. App. 2009) (quoting Fex v. Michigan, 507 U.S. 43, 52 (1993)), trans. denied. “The procedures set forth
       in the IAD are not mere technicalities; thus, strict compliance is required.” Smith, 882 N.E.2d at 742.
       Nonetheless, the parties agreed that Noelker was before the trial court pursuant to the provisions of the IAD,
       and although we are not privy to the calculations, also apparently agreed on the date the 180-day clock began
       to run and the days that remained. See Brief of Appellee at 14 n.3 (noting that but for the parties’ stipulation
       to the days passed and days remaining, the lack of a request for final disposition “would have been fatal to
       [Noelker’s] claim on appeal”).

       Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020                                    Page 9 of 13
       precluded from relief if he fails to object to a date for trial beyond the 180-day

       period at the time it was set or during the remainder of the time.” Reid v. State,

       670 N.E.2d 949, 952 (Ind. Ct. App. 1996), trans. denied. Although we agree

       with that general rule, the setting of the August trial date was accompanied by a

       specific finding that Noelker was responsible for the ensuing delay. Under

       those circumstances, objecting to the trial setting would have been pointless

       because the trial court had already explicitly decided that the trial date was

       within the time limitation. We decline to decide this case on waiver alone.


[12]   Regardless, we hold the trial court was correct to attribute the delay to Noelker.

       The IAD provides that “for good cause shown in open court,” the trial court

       “may grant any necessary or reasonable continuance” of the 180-day time

       period. Ind. Code § 35-33-10-4, Art. 3(a). And case law relating to Criminal

       Rule 4(B) makes clear that the time limit is extended by periods of delay

       attributable to the defendant. Allen, 636 N.E.2d at 193.


[13]   Noelker contends the delay should not have been attributed to him for several

       reasons. First, he argues that the State should have obtained Noelker’s specific,

       signed agreement to the stipulation before preparing for trial based on the

       stipulation because, essentially, Noelker’s pre-trial conduct demonstrated he

       was unreliable, unpredictable, and often at odds with his attorney. See

       Appellant’s Brief at 10-11. Therefore, he contends it was not reasonable for the

       State to rely on Noelker’s counsel’s agreement to the stipulation alone. We

       disagree. Tactical decisions are counsel’s to make because “[t]he adversary

       process could not function effectively if every tactical decision required client

       Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020           Page 10 of 13
       approval.” Taylor v. Illinois, 484 U.S. 400, 418 (1988). “Although there are

       basic rights that the attorney cannot waive without the fully informed and

       publicly acknowledged consent of the client, the lawyer has—and must have—

       full authority to manage the conduct of the trial.” Id. at 417-18 (footnote

       omitted). “Thus, decisions by counsel are generally given effect as to what

       arguments to pursue, what evidentiary objections to raise, and what agreements

       to conclude regarding the admission of evidence[.]” New York v. Hill, 528 U.S.

       110, 115 (2000) (citations omitted). The State was most certainly entitled to

       rely on Noelker’s counsel’s agreement to the use of video depositions in lieu of

       trial testimony even in the absence of Noelker’s personal assent to the

       procedure.


[14]   Second, Noelker contends the second chain of custody witness “should not

       have been unknown to the State in the shadow of trial” and nothing Noelker

       did “contributed to this significant oversight by the State.” Appellant’s Br. at

       12-13. However, it appears the parties had agreed to conduct a video

       deposition of this second witness for use at trial and were working to obtain that

       deposition in time for trial before Noelker indicated his refusal to agree to that

       procedure. The late-discovered witness did not contribute to any delay of the

       May 7 trial.


[15]   Finally, Noelker also argues that the witnesses were not “unavailable” and

       could have been produced at trial. See Ind. Evid. Rule 804(a) (criteria for being

       unavailable) and (b)(1). The State conceded this was so at the April 30 hearing,

       but the pertinent question was not whether the witnesses were unavailable on a

       Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020           Page 11 of 13
       larger scale; it was whether they were unavailable for the trial scheduled on

       May 7. As of one week before trial, the State had taken no steps to procure

       their attendance or to procure a second DNA analysis that would not require

       their attendance, relying on the agreement with Noelker’s counsel that their

       attendance would not be necessary to introduce crucial DNA evidence. The

       State acknowledged it could do either, but that it would require “lead time[.]”

       Tr., Vol. II at 40. Noelker’s refusal to go along with the stipulation counsel had

       entered caused prejudice to the State in the presentation of its case and

       necessitated a delay.


[16]   In sum, it was Noelker’s—and Noelker’s alone—gamesmanship that

       necessitated the delay of the May 7 trial. The purpose of the speedy trial rules

       “is to assure early trials and not to discharge defendants.” Utterback v. State, 261

       Ind. 685, 687, 310 N.E.2d 552, 554 (1974). “When a defendant makes a

       motion for speedy trial, he is required to maintain a position which is

       reasonably consistent with his request.” Covelli v. State, 579 N.E.2d 466, 470

       (Ind. Ct. App. 1991), trans. denied. Noelker’s conduct throughout this

       proceeding has hardly been consistent with an actual desire for a speedy trial

       and his late refusal to acquiesce in his counsel’s reasonable trial decisions

       reflects a strategic ploy to obtain a discharge. Good cause was shown in open

       court on April 30, 2019 for delaying the trial and Noelker has not argued that

       the length of the ensuing delay was unreasonable. Accordingly, the trial court

       did not err in denying Noelker’s motion to dismiss, made on the day of trial.




       Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020           Page 12 of 13
                                               Conclusion
[17]   The delay in trying Noelker was attributable to Noelker’s actions and therefore

       the 180-day time limit of the IAD had not yet expired when he was tried on

       August 6, 2019. Accordingly, the trial court did not err in denying Noelker’s

       motion to dismiss, and the judgment of the trial court is affirmed.


[18]   Affirmed.


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




       Court of Appeals of Indiana | Opinion 19A-CR-2384 | May 6, 2020       Page 13 of 13
