FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JAMES C. SPENCER                              GREGORY F. ZOELLER
Datillo Law Office                            Attorney General of Indiana
Madison, Indiana
                                              JAMES B. MARTIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                        Apr 01 2014, 8:42 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL E. MCCLELLAN,                         )
                                              )
     Appellant-Defendant,                     )
                                              )
              vs.                             )     No. 39A04-1305-CR-248
                                              )
STATE OF INDIANA,                             )
                                              )
     Appellee-Plaintiff.                      )


                    APPEAL FROM THE JEFFERSON SUPERIOR COURT
                          The Honorable Alison T. Frazier, Judge
                             Cause No. 39D01-1005-CM-401




                                    April 1, 2014



                            OPINION - FOR PUBLICATION



ROBB, Judge
                                      Case Summary and Issue

       In this interlocutory appeal, Michael McClellan appeals the trial court’s denial of

his motion to dismiss the charge pending against him. McClellan raises one issue, whether

the trial court erred in denying his motion to dismiss because his right to a speedy trial

under the federal and state constitutions was violated.1 Concluding the trial court failed to

evaluate McClellan’s speedy trial claim under the appropriate framework, we remand for

a new hearing on McClellan’s motion to dismiss.

                                    Facts and Procedural History

       In February 2009, McClellan was arrested for operating a vehicle while intoxicated

and spent the night in jail (“February OWI”). The State filed charges in Jefferson Superior

Court. On August 2, 2009, while the February OWI case was pending, McClellan was

stopped on suspicion of operating a vehicle while intoxicated (“August OWI”). Due to a

medical condition, McClellan was unable to take a breath test. McClellan consented to a

blood draw and was driven to his home in Hanover by the investigating officer after the

blood draw. The officer knew that McClellan required an oxygen tank but would not have

access to it in jail, which would create a medical hardship. At the time, McClellan’s license

reflected a home address in Milton, Kentucky.2 McClellan told his attorney, who was

representing him on the February OWI, of the blood draw in connection with the August

OWI.


       1
           McClellan does not raise any claim under Indiana Criminal Rule 4.
       2
          McClellan moved to Kentucky for a brief time while he was separated from his wife and updated
his license to reflect the change in address; once he was placed on home detention he moved back to his
marital residence in Hanover and remained there.

                                                    2
      By December 2009, McClellan had not received any toxicology results in

connection with the August OWI. Neither he nor his attorney asked the State about the

status of that possible case; McClellan assumed that the absence of information meant he

was not going to face charges. On December 23, 2009, he pled guilty to the February OWI.

His plea agreement called for a one year executed sentence, with placement open to

argument. McClellan argued, and the court agreed, that his health prevented him from

being able to withstand a jail sentence, and the court sentenced him to one year of home

detention. McClellan was required to have a land-line phone to be monitored by an

electronic ankle bracelet while on home detention. He returned to Hanover from Kentucky

for the duration of his sentence.    McClellan was discharged in January 2011 after

successfully completing home detention and has lived at the Hanover address ever since.

      On May 25, 2010, after receiving the toxicology report just two days prior, the State

charged McClellan with operating a vehicle while intoxicated, a Class A misdemeanor,

and operating a vehicle while intoxicated, a Class C misdemeanor, for the August OWI.

These charges were brought in Jefferson Superior Court, the same court that heard

McClellan’s February OWI case. The court issued a summons to McClellan at his Milton,

Kentucky address as listed on his license at the time of the offense. The sheriff did not

serve the summons, and it was returned as “NOT OUR COUNTY.” Appendix at 1. A

second summons was returned “NOT SERVED . . . DEFENDANT NO LONGER LIVES

AT THAT ADDRESS.” Id. McClellan did not appear at his initial hearing in July 2010.

The court then issued an arrest warrant and listed McClellan’s Kentucky address. After

that warrant expired, the court issued a second arrest warrant in March 2011. Like the

                                            3
others, it listed McClellan’s Kentucky address. The summons and first warrant were issued

while McClellan was on home detention in Hanover.

       McClellan was eventually served with the warrant in November 2012 at his home

in Hanover.3 At the initial hearing on November 5, the court agreed to the arresting

officer’s request that McClellan be allowed to appear voluntarily due to his medical

conditions.4 McClellan filed a motion to dismiss on December 28, 2012, and an amended

motion to dismiss on January 10, 2013, alleging his due process rights were violated by the

delay from the time of the traffic stop until the time he was brought to court. A hearing

was held on the motion, and for the first time, McClellan argued that his right to a speedy

trial was violated in addition to his due process rights. On March 25, 2013, the trial court

denied the motion to dismiss, reasoning that it was appropriate for the State to wait for the

toxicology report before charging McClellan, and that the charges were filed within the

statute of limitations. The trial court further reasoned that the address the summons and

warrant listed was that which McClellan provided to police at the time of the offense, and

that the State had no affirmative duty to research the changed address.

       McClellan filed a petition to certify the order for interlocutory appeal and a stay of

the proceedings, and the trial court granted the petition. This court then accepted

jurisdiction of the interlocutory appeal.




       3
           The record is silent as to what prompted service at this address.
       4
           McClellan suffers from chronic obstructive pulmonary disease (COPD), sleep apnea, kidney
failure, diabetes, and bladder issues.

                                                       4
                                   Discussion and Decision

                                    I. Standard of Review

       The issue here is whether the trial court erred in denying McClellan’s motion to

dismiss based on a violation of his right to a speedy trial under the Sixth Amendment and

Article 1, Section 12 of the Indiana Constitution. The standard of review for a speedy trial

issue, which is a pure question of law, is de novo. Cundiff v. State, 967 N.E.2d 1026, 1027

(Ind. 2012). The analysis of a claim involving a speedy trial right is the same under both

the state and federal constitutions. Sweeney v. State, 704 N.E.2d 86, 102 (Ind. 1998), cert.

denied, 527 U.S. 1035 (1999). The inquiry into whether there was a speedy trial violation

involves balancing four factors: 1) the length of the delay; 2) the reason for the delay; 3)

the defendant’s assertion of the right to a speedy trial; and 4) prejudice to the defendant.

Barker v. Wingo, 407 U.S. 514, 530; Vermillion v. State, 719 N.E.2d 1201 (Ind. 1999).

The four factors are related and

       must be considered together with such other circumstances as may be
       relevant. . . . [T]hese factors have no talismanic qualities; courts must still
       engage in a difficult and sensitive balancing process. But, because we are
       dealing with a fundamental right of the accused, this process must be carried
       out with full recognition that the accused's interest in a speedy trial is
       specifically affirmed in the Constitution.

Barker, 407 U.S. at 533.

                           II. McClellan’s Speedy Trial Rights

                                      A. Length of Delay

       The length of the delay acts as a triggering mechanism; a delay of more than a year

post-accusation is “presumptively prejudicial” and triggers the Barker analysis.


                                             5
Vermillion, 719 N.E.2d at 1206 (citing Doggett v. United States, 505 U.S. 647, 652 n.1

(1992)). “[W]hen length of delay is considered as a factor in the Barker analysis, this court

determines ‘the extent to which the delay stretches beyond the bare minimum needed to

trigger judicial examination of the claim.’” Davis v. State, 819 N.E.2d 91, 96 (Ind. Ct.

App. 2004) (citing Doggett, 505 U.S. at 652), trans. denied. Here, the length of time

between McClellan being formally accused of the August OWI and when he was first

brought in for his initial hearing was two years and five months. 5 This length of delay is

sufficient to be considered “presumptively prejudicial” because it stretched seventeen

months beyond the triggering point.

                                         B. Reason for Delay

       The delay was due to the court issuing summons and warrants to McClellan at an

outdated address. McClellan argues that the State had an obligation to serve him earlier,

especially since he was on home detention and the State should have been aware of his

correct address. The State argues that the delay was not deliberate and that the trial court

found that the State had no affirmative burden to know McClellan’s address. While this

does not appear to have been a bad faith attempt to hamper the defense, this court has

recognized that a delay in serving a defendant once the defendant has moved is a “neutral

reason” which “should be weighted less heavily but nevertheless should be considered

since the ultimate responsibility for such circumstances must rest with the government




       5
         The nine months between the traffic stop and the filing of charges are not considered in
determining the delay. McClellan concedes that the case was filed within the statute of limitations and
McClellan was not formally accused until May 25, 2010, and that is the date relevant to our analysis.

                                                  6
rather than with the defendant.” Harrell v. State, 614 N.E.2d 959, 964 (Ind. Ct. App. 1993),

trans. denied. Here, the State’s inability to locate McClellan after McClellan moved caused

the delay. We do not suggest that it requires a Herculean effort on the part of the State to

locate a defendant when the defendant has provided the State with his address and then

moves;6 only a reasonable effort is required for the delay not to be attributable to the State.

See Bowman v. State, 884 N.E.2d 917, 920 (Ind. Ct. App. 2008) (“When the State has

made reasonable efforts to locate an arrestee, it cannot be found at fault for delay caused

by the accused’s disappearance.”), trans. denied; Harrell, 614 N.E.2d at 966 (“[W]e

concluded that the government is more to blame for the delay because it presented no

evidence that it had attempted, with reasonable diligence, to serve the warrant or to find

[the defendant].”). Under these particular facts, where the State had actual notice of

McClellan’s address because he was on home detention through the same court in the same

county, the reason for the delay is attributable to the State.

                                          C. Assertion of Right

        McClellan first asserted his right to a speedy trial when the court was hearing

arguments on his motion to dismiss on January 10, 2013. Prior to that hearing, McClellan

was asserting only that his due process rights were violated so there were two months when

he could have argued this claim, but did not. McClellan could not have asserted his rights

in the nearly two and a half years before he was brought to trial. Therefore, the assertion




        6
          We recognize the incentive for an arrestee to relocate and essentially “hide out” for a year and
then claim a deprivation of the right to a speedy trial if we held the State always responsible for locating
the defendant.

                                                     7
of his right neither weighs for or against McClellan since it was not until the hearing on

the motion to dismiss that he presented this claim.

                                  D. Prejudice to McClellan

       When analyzing prejudice to a defendant in the context of the speedy trial right, we

must consider three particular interests: preventing oppressive pretrial incarceration;

minimizing anxiety and concern of the accused; and limiting the possibility of impairing

the defense. Barker, 407 U.S. at 532. The most important of the three is limiting the

possibility of defense impairment. Id. The burden is on the defendant to show actual

prejudice to prove a speedy trial deprivation. Sturgeon v. State, 683 N.E.2d 612, 617 (Ind.

Ct. App. 1997), trans. denied. If the delay between the filing of an information and the

arrest of the defendant exceeds the statute of limitations for the crime, the “defendant is no

longer required to produce evidence of actual prejudice; it is presumed subject to being

rebutted by the state, i.e., once prejudice is presumed, the burden shifts to the State to go

forward with evidence to rebut the presumption.” Scott v. State, 461 N.E.2d 141, 145 (Ind.

Ct. App. 1984). Here, McClellan was not required to show actual prejudice due to the

length of time between the filing of charges and McClellan’s arrest (two years, five months,

when the statute of limitations was two years). The State though has not had an opportunity

to rebut the presumption of prejudice in this case. If the State is able to rebut the

presumption of prejudice, this factor may then weigh against McClellan in the analysis. It

is the responsibility of the trial court to administer this balancing test. Therefore, we

remand to the trial court to hold a new hearing on McClellan’s motion to dismiss using the

balancing test set forth herein and determine whether McClellan’s motion should be

                                              8
granted.

                                        Conclusion

       We remand to the trial court to hold a new hearing on McClellan’s motion to dismiss

based on the speedy trial right using the four-factor balancing test established by Barker v.

Wingo and its progeny and to determine whether McClellan’s motion to dismiss should be

granted.

       Remanded.

BARNES, J., and BROWN, J., concur.




                                             9
