                                                                     FILED
                                                                Aug 05 2020, 11:39 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




                          IN THE

  Indiana Supreme Court
             Supreme Court Case No. 20S-CR-31

                   Brandon Battering,
                           Appellant,

                              –v–

                     State of Indiana,
                            Appellee.


        Argued: May 27, 2020 | Decided: August 5, 2020

             Appeal from the Pulaski Circuit Court
                      No. 66C01-1512-F1-3
             The Honorable Michael A. Shurn, Judge
               The Honorable Mary Welker, Judge

    On Petition to Transfer from the Indiana Court of Appeals
                        No. 18A-CR-2309



                   Opinion by Justice David
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice.

    The State bears the burden of prosecuting individuals charged with
crimes. To ensure efficient disposition and resolution of criminal
prosecutions, the State must bring an accused to trial within certain
deadlines imposed by Indiana Criminal Rule 4. Recognizing that some
delays are inevitable, Criminal Rule 4 allows these time limitations to be
extended or tolled in certain circumstances based on the actions of either
the State, the defendant, or the trial court. But once the proverbial clock
strikes midnight and the limitations period has run, a criminal defendant
is entitled to discharge if he or she so moves.

  In the present case, the State filed an interlocutory appeal after
Defendant Brandon Battering successfully suppressed certain evidence.
Rather than request a stay of the proceedings—a motion that almost
certainly would have been granted—the State specifically asked for only a
continuance during the pendency of its appeal. After Battering moved for
discharge under Criminal Rule 4(C), the State belatedly asked for and
received a stay of the proceedings. Battering renewed his motion for
discharge and the trial court denied his request.

   The issue now presented for our review upon Battering’s interlocutory
appeal is whether, for the purposes of Criminal Rule 4(C), the State’s
action of seeking an interlocutory appeal automatically stayed the
proceedings so as to toll Rule 4(C)’s one-year limitation. In other words,
was the State required to specifically move for a stay of the proceedings,
or did the interlocutory appeal create an automatic stay? Reviewing the
plain language of Indiana Rule of Appellate Procedure 14 in conjunction
with Criminal Rule 4(C), we find that Rule 4(C)’s clock continued to tick
until the State formally moved for a stay of the proceedings. Because this
time continued to count against Rule 4’s one-year limitation in
prosecuting the charged crimes and the State exceeded this limitation, we
reverse the trial court and find that Battering is entitled to discharge.




Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020        Page 2 of 11
Facts and Procedural History
   On December 4, 2015, the State filed an information charging
Defendant Brandon Battering with Count 1: Level 1 Felony child
molesting, Count 2: Level 4 Felony child molesting, and Count 3: Level 5
Felony child solicitation. Before trial, Battering filed a motion to suppress
certain evidence obtained by law enforcement during a police
interrogation. On January 19, 2017, the trial court granted Battering’s
motion and suppressed the evidence.

   Shortly after the trial court granted Battering’s motion, the State said it
intended to file an interlocutory appeal challenging the court’s
suppression ruling. During a teleconference, the following exchange
occurred:

      [BATTERING]: Are you going to ask to stay the proceedings
      and to continue the jury trial?


      [STATE]: Yes.


      [BATTERING]: Or – okay. And so that’ll be done
      contemporaneously with what appears to be a request for an
      interlocutory appeal?


      [STATE]: Yes.


      [BATTERING]: Okay.


      THE COURT: So I’m inclined to grant that because it’s such a
      critical issue, but I want to read [the State’s] motion, give you a
      chance to object if you feel – but then that – where does that –
      so then I would be vacating the trial if I’m granting that. Where
      does that leave me on Criminal Rule 4 now?




Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020           Page 3 of 11
      [STATE]: Well, the State’s never asked for a continuance. All
      continuances on the trial have been made by the Defendant so
      far in this case.


      THE COURT: Oh, I understand, but where are we at in that? It
      probably – it might – I mean, I don’t know how long they’re
      going to take to address an interlocutory appeal. Sometimes
      they’re done pretty expeditiously, but would that mean he
      would get out of jail?


      [STATE]: If he posts a bond, yeah.


      THE COURT: Even without posting a bond under Criminal
      Rule 4.


      [STATE]: Not if proceedings are stayed.


      THE COURT: If they’re stayed. Do you agree with that,
      [Battering]?


      [BATTERING]: If they’re proceeding what?


      THE COURT: If the proceedings are stayed, does the time run
      on Criminal Rule 4 to be released without posting any bond?


      [BATTERING]: It’s my understanding it does, Your Honor, but
      I’ll also acknowledge that I think, when I have looked at the
      law on this a few years back, it was unclear. I will say that the
      law is more in favor of the State if they took that statutory
      provision where they acknowledge that further prosecution is
      impossible in light of the Court’s ruling (indiscernible).


      THE COURT: But if it’s not, if it’s just discretionary and I grant
      a discretionary interlocutory appeal and certify it and you’ve
      got a question about whether –



Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020          Page 4 of 11
      [BATTERING]: Absolutely. Yes.


      THE COURT: Okay.


      [BATTERING]: I think it’s all chargeable to them because what
      they – what – and I don’t mean to be condescending, but they
      try – when they try and have their cake and eat it too, they
      can’t have it both ways. They can’t say –


      THE COURT: Okay.


      [BATTERING]: - it does not cause (indiscernible).


      THE COURT: Well, we’ll deal with that. We’re not there yet, so
      I guess we’ll deal with that another day. But I don’t think an
      interlocutory appeal on that issue would divest me of
      jurisdiction to consider a Criminal Rule 4 in the process, I don’t
      believe.


      [BATTERING]: No, I don’t think so either.


Tr. Supp. pp. 7-9. Thereafter, the State filed a motion to certify the issue
for an interlocutory appeal. Included within this motion was a request for
the trial court to continue—rather than stay—the jury trial set to begin on
January 24, 2017.

   The trial court certified the issue for interlocutory appeal. When the
trial court granted the motion, the parties had the following discussion:

      THE COURT: So I’ll go ahead and grant that, so I – and I will
      then continue the jury trial. And then, [Battering], we’ll just
      have to decide where we go in bond or, you know, Criminal
      Rule 4. And I know you’ll look into that, right?


      [BATTERING]: Yes. And for my purposes, Your Honor, I need
      to show my objection to the continuance. We object to any


Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020             Page 5 of 11
      continuance. We’re prepared and ready for trial. We believe the
      State should be, as well, and so any – we would object to the
      continuance. And then I will file a Rule 4 issue after this.


      THE COURT: Well, I don’t know how to certify this issue for
      interlocutory appeal and still have a trial, but I sort of think
      that if I’ve got to do the one, I have to do the other. They seem
      to go hand in hand.


      …


      So that’s what I said. If I’m going to grant the interlocutory
      appeal, the trial has to be continued, and so I have to grant the
      State’s motion for that. And I understand your objection will be
      shown of record… And of course, the pieces will fall where
      they may with the Criminal Rule 4 filing.


Id. at 11-12.

   During the pendency of the appeal, Battering filed several motions
including a motion to exclude evidence, reduce his bond, and set a date
for jury trial. Battering also filed a motion for discharge under Criminal
Rule 4, arguing that the State failed to bring him to trial within one year
because it sought a continuance during the interlocutory appeal instead of
a stay. On June 13, 2017, the State filed a motion to stay the proceedings
pending the interlocutory appeal. The State’s motion was granted by the
trial court on June 15, 2017, and the proceedings were formally stayed.

   On September 28, 2017, the Court of Appeals issued an opinion
affirming the trial court’s suppression of Battering’s pre-trial statements.
State v. Battering, 85 N.E.3d 605 (Ind. Ct. App. 2017). After the Court of
Appeals issued its decision, Battering filed an initial, a renewed, and an
additional renewed Rule 4(C) motion, asking the trial court to dismiss the
proceedings and discharge him. The trial court denied Battering’s Rule
4(C) motion for discharge and Battering requested an interlocutory appeal
on this issue. The trial court certified the issue and the present appeal
ensued.


Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020          Page 6 of 11
   In a published opinion, the Court of Appeals affirmed the trial court’s
denial of Battering’s Rule 4(C) motion for discharge. Battering v. State, 134
N.E.3d 475, 482 (Ind. Ct. App. 2019). The majority found that “one thing
was absolutely clear to everyone involved: no trial would be taking place
until the State’s interlocutory appeal was complete.” Id. at 481.
Characterizing any motion to stay the proceedings as a “mere formality,”
the Court of Appeals found that the delay during the pendency of the
interlocutory appeal was not chargeable to the State. Id. at 482. Judge
Baker dissented and would have found that because the proceedings were
not formally stayed until the State so moved, the Rule 4(C) clock kept
ticking and Battering was entitled to discharge. Id. at 484 (Baker, J.,
dissenting).

   Battering petitioned for transfer, which we granted, thereby vacating
the Court of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   We generally review a trial court’s ruling on a motion for discharge for
an abuse of discretion. Curtis v. State, 948 N.E.2d 1143, 1149 (Ind. 2009)
(citation omitted). When, as is the case here, the relevant facts are
undisputed and the issue is a question of law, we evaluate a Criminal
Rule 4 motion for discharge de novo. State v. Larkin, 100 N.E.3d 700, 703
(Ind. 2018) (citing Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013)).


Discussion and Decision
   Battering has consistently argued that he is entitled to discharge under
Criminal Rule 4(C). He argues, on the one hand, that the State’s own
motion for interlocutory appeal—combined with the plain language of
Indiana Appellate Rule 14(H)—shows that the Rule 4(C) clock ran up to
and until the State formally moved to stay the proceedings. The State, on
the other hand, argues that its motion to certify this matter for
interlocutory appeal and continue the proceedings was a “stay-in-
substance” and urges us to consider the context of the interlocutory
appeal rather than strictly construe the words of the relevant rules. The


Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020         Page 7 of 11
language of Criminal Rule 4(C) and Appellate Rule 14(H), in light of our
Court’s precedent, however, leads us to the result that Battering seeks:
The State’s motion for continuance was not a stay under Criminal Rule
4(C). Battering is, therefore, entitled to discharge.

   We start from the understanding that “[t]he State bears the burden of
bringing the defendant to trial within one year.” Larkin, 100 N.E.3d at 703
(citing Bowman v. State, 884 N.E.2d 917, 919 (Ind. Ct. App. 2008)). To
enforce this burden, Criminal Rule 4(C) provides, in relevant part:

      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…


As the rule suggests, criminal defendants extend the one-year period “by
seeking or acquiescing in delay resulting in a later trial date.” Pelley v.
State, 901 N.E.2d 494, 498 (Ind. 2009) (citing Vermillion v. State, 719 N.E.2d
1201, 1204 (Ind. 1999)). Additionally, a defendant generally waives rights
under Rule 4(C) by failing to offer a timely objection to trial dates set
outside the one-year limitation, unless the setting of that date occurs after
the one-year period has expired. Id. at 499 (citation omitted).

   Our Court examined the contours of Rule 4(C) in Pelley v. State. In that
case, the State filed an interlocutory appeal after it received an adverse
ruling on a discovery dispute with a third party. Id. at 497. Although the
proceedings were properly stayed during the interlocutory appeal, the
defendant moved for discharge under Rule 4(C), believing that the time
should have been chargeable to the State because it was the party that
brought the interlocutory appeal. Id. We ultimately concluded that “Rule
4(C)’s one-year limitation does not include the time during which trial
proceedings have been stayed pending interlocutory appeal.” Id. at 499-
500. Importantly, however, “the time for an interlocutory appeal is


Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020          Page 8 of 11
excluded from Rule 4(C)’s limitation only when trial court proceedings
have been stayed.” Id. at 500 (emphasis added).

   Nearly ten years later, we again considered whether a defendant was
entitled to discharge under Rule 4(C) in State v. Larkin, 100 N.E.3d at 703-
06. In that case, trial was delayed due to an interlocutory appeal and a
motion for change of judge. The question boiled down to whether the
delay was attributable to the defendant. Id. at 704. Finding that both
periods during the interlocutory appeal and motion for change of judge
were chargeable to the defendant, and that the defendant agreed to the
trial date set outside of Rule 4(C)’s bounds, he was not entitled to
discharge. Id. at 706.

   We can glean from these decisions that Rule 4(C)’s one-year limitation
always tolls when a stay is in place. If a stay is not in place, however, the
clock continues to tick against the State. 1 So the question in this case is
whether the State’s interlocutory appeal constituted a stay even if the State
did not formally request one.

  Our appellate rules answer this question. Indiana Appellate Rule 14(H)
provides:


       An interlocutory appeal shall not stay proceedings in the trial
       court unless the trial court or a judge of the Court of Appeals so
       orders. The order staying proceedings may be conditioned
       upon the furnishing of a bond or security protecting the
       appellee against loss incurred by the interlocutory appeal.


(Emphasis added.) A plain reading of this rule provides that an
interlocutory appeal only constitutes a stay if the trial court or the Court of




1We note that in Pelley, we posited that there are two instances in which a trial court or the
Court of Appeals may decline the State’s request for a stay pending interlocutory appeal: (1) if
“the State is seeking a stay for improper purposes,” or (2) “if the appeal presents issues that
are not critical to the case.” 901 N.E.2d at 500. In this case, however, neither of these two paths
are in play because the State did not move for a stay at all until it felt compelled to do so in
order to placate Battering’s Rule 4(C) concerns.



Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020                            Page 9 of 11
Appeals so orders. The “shall not – unless” structure of this rule
seemingly forecloses any alternate route to a stay.

   Nevertheless, the State urges that it complied—either constructively or
substantially—with the spirit of the rule and should not be punished with
the continued ticking of the Criminal Rule 4(C) clock. The State further
argues that it had no other option in this case than to initiate an
interlocutory appeal after the trial court’s adverse ruling to Battering’s
motion to suppress. Be that as it may, the State did have an appropriate
remedy available to it when it sought an interlocutory appeal: Request a
stay. It failed to do so here.

   The State bears the burden to prosecute a given case within the bounds
of Rule 4(C). As indicated above, there are many valid procedural avenues
to extend or toll this timeline. The words of the applicable rules could not
be any clearer: The State needed to request—and be granted—a stay of
the proceedings in order to toll Rule 4(C)’s one-year limitation. Because it
did not do so until it was too late, Battering is entitled to discharge.


Conclusion
   Battering has successfully shown that Criminal Rule 4(C)’s one-year
limitation has been surpassed. Under this rule, he is therefore entitled to
discharge. We reverse the trial court and discharge the defendant.


Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020          Page 10 of 11
ATTORNEYS FOR APPELLANT
Mark K. Leeman
Pulaski County Public Defender
Logansport, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 20S-CR-31 | August 5, 2020   Page 11 of 11
