      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Feb 21 2019, 8:19 am

      court except for the purpose of establishing                              CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Amber C. Shaw                                            Curtis T. Hill, Jr.
      Law Office of Amber C. Shaw                              Attorney General of Indiana
      New Albany, Indiana
                                                               Evan Matthew Comer
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James Michael Wilcutt,                                   February 21, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1896
              v.                                               Appeal from the Harrison Superior
                                                               Court
      State of Indiana,                                        The Honorable Joseph L.
      Appellee-Plaintiff.                                      Claypool, Judge
                                                               Trial Court Cause No.
                                                               31D01-1608-F4-523



      Friedlander, Senior Judge.


[1]   James Wilcutt appeals the denial of his motion to dismiss. We affirm and

      remand.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019             Page 1 of 7
[2]   On August 15, 2016, the State charged Wilcutt with burglary, a Level 4 felony,

      and theft, a Level 6 felony. The State alleged that Wilcutt had broken into a

      dwelling in Harrison County and took personal property, including tools. The

      Harrison Superior Court, the trial court in this case, found probable cause for

      the charges and issued an arrest warrant.


[3]   Wilcutt was incarcerated in Crawford County on unrelated charges when the

      trial court issued the arrest warrant in this case. On September 21, 2016,

      Wilcutt filed a pro se motion with the trial court asking for a hearing and for an
                                                             1
      order to transport him to the hearing. On September 22, 2016, the trial court

      issued an order directing the Harrison County Sheriff to transport Wilcutt from

      the Crawford County Jail to the Harrison County Jail for an initial hearing on

      October 24, 2016.


[4]   The scheduled hearing did not occur because Wilcutt was no longer at the

      Crawford County Jail on the day he was to be transported to Harrison County.

      It was later revealed that Wilcutt had been granted a medical furlough from the

      Crawford County Jail and then failed to return, which resulted in his arrest in

      Crawford County on October 28, 2016, and reincarceration in the Crawford

      County Jail. The trial court in this case did not schedule a new initial hearing

      but instead noted the arrest warrant against Wilcutt remained outstanding.




      1
          It appears that Wilcutt did not serve copies of this motion and his other pro se filings on the State.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019                        Page 2 of 7
[5]   On November 4, 2016, Wilcutt filed another pro se motion with the trial court.

      He again requested an initial hearing and an order to be transported to Harrison

      County. In addition, Wilcutt asked the court to appoint an attorney to

      represent him. Finally, he requested a “Fast and Speedy Trial.” Appellant’s

      App. Vol. II, p. 13. It appears that the trial court did not take any action on

      Wilcutt’s motion.


[6]   On January 26, 2017, Wilcutt filed another pro se motion with the trial court.

      He sent it from the Crawford County Jail. In the motion, Wilcutt asked to be

      discharged and to have the case dismissed because he had not received a “fast

      and speedy trial” despite his prior request. Id. at 14.


[7]   On January 30, 2017, the trial court scheduled an initial hearing for February

      22, 2017. The court held the hearing as scheduled and appointed counsel to

      represent Wilcutt. Wilcutt, by counsel, filed a jury trial demand and a request

      for discovery.


[8]   On March 28, 2017, the court issued an order directing the Harrison County

      Sheriff to transport Wilcutt from the Crawford County Jail to the Harrison

      County Jail for a hearing scheduled for March 29, 2017. That hearing was later

      rescheduled for April 5, 2017, and on April 4, 2017, the trial court reissued the

      order for transport from Crawford County.


[9]   The hearing was held on April 5, 2017. During the hearing, Wilcutt, by

      counsel, withdrew his request for a fast and speedy trial. The trial court

      scheduled another pretrial hearing for June 28, 2017. In addition, the trial court

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019   Page 3 of 7
       issued another order to transport, directing the Harrison County Sheriff to

       transport Wilcutt from the Crawford County Jail to the Harrison County Jail

       on or before June 28, 2017.


[10]   The trial court held the hearing as scheduled on June 28, 2017 and scheduled a

       jury trial for October 17, 2017. The trial court issued another transport order,

       on this occasion directing the sheriff to transport Wilcutt from “the Orange

       County Jail, or such other place where he/she may be housed, to the Harrison

       County Jail on or before September 27, 2017.” Id. at 38.


[11]   On October 10, 2017, Wilcutt, by counsel, moved to continue the jury trial.

       The trial court granted Wilcutt’s motion and rescheduled the trial for November

       14, 2017. On November 1, 2017, the court held a hearing. Wilcutt’s counsel

       appeared, but Wilcutt was absent. Counsel was unsure of Wilcutt’s location,

       but the trial court noted Wilcutt had a pending case in Orange County with a

       sentencing date of November 27, 2017. The trial court indicated it would

       prepare a transport order.


[12]   On December 18, 2017, Wilcutt, acting pro se although he was represented by

       counsel, filed a motion for transport order. He claimed he was “currently

       residing in the Orange County Jail,” and that the case that had caused his

       incarceration in that county had been resolved. Id. at 51. He asked the trial

       court to order the sheriff to transport him to the Harrison County Jail. The trial

       court did not act on Wilcutt’s pro se motion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019   Page 4 of 7
[13]   Next, Wilcutt obtained new counsel, who filed a Motion to Dismiss and a

       request for a hearing. The trial court held a hearing. On May 10, 2018, the trial

       court issued an order denying the Motion to Dismiss. On June 7, 2018, the trial

       court issued findings of fact and conclusions thereon further explaining its

       reasons for denying Wilcutt’s Motion to Dismiss. Wilcutt moved the trial court

       to certify its order for interlocutory review, and the trial court agreed. Next,

       Wilcutt asked this Court to accept review over the case, and the Court agreed.

       This appeal followed.


[14]   Wilcutt raises three issues, which we consolidate and restate as: whether the

       trial court erred in denying his motion to dismiss. He claims the trial court

       should have dismissed the State’s charges because the State did not bring him to

       trial within seventy days of his request for a fast and speedy trial, in violation of

       Indiana Criminal Rule 4(B).


[15]   Where the facts are not in dispute, a speedy trial claim presents a question of

       law. Cundiff v. State, 967 N.E.2d 1026 (Ind. 2012). We apply a de novo

       standard of review to a trial court’s ruling on a question of law. Id.


[16]   The Sixth Amendment and article I, section 12 of the Indiana Constitution

       protect an accused’s right to a speedy trial. These constitutional provisions are

       generally implemented through Indiana Criminal Rule 4(B). Cundiff, 967

       N.E.2d at 1027. Rule 4(B) states, in relevant part:


               If any defendant held in jail on an indictment or an affidavit 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
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019   Page 5 of 7
               motion, except where a continuance within said period is had on
               his motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar.


       Rule 4(B) places an affirmative duty on the State to bring a defendant to trial,

       but at the same time the rule is not intended to be a mechanism for providing

       defendants a technical means to escape prosecution. Austin v. State, 997 N.E.2d

       1027 (Ind. 2013).


[17]   The State does not dispute that Wilcutt filed a request for a speedy trial on

       November 4, 2016. Instead, the State claims Rule 4(B) is inapplicable here.

       “[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge for

       which he seeks a speedy trial, and as long as that requirement is met, the

       availability of Rule 4(B) is not affected if the defendant is also incarcerated on

       other grounds.” Cundiff, 967 N.E.2d at 1031.


[18]   In Wilcutt’s case, he was not in custody in Harrison County when he filed his

       request for a speedy trial. To the contrary, he conceded during a trial court

       hearing in this case that he was never incarcerated in the Harrison County Jail

       during the period of time relevant to this case. Tr. Vol. 2, p. 5. Wilcutt was

       instead incarcerated in Crawford County on unrelated charges. He remained

       incarcerated in Crawford County until at least April 5, 2017, when he withdrew

       his request for a speedy trial in this case.


[19]   Following the Indiana Supreme Court’s holding in Cundiff, we conclude

       Wilcutt’s November 4, 2016, request for a speedy trial did not trigger Rule

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019   Page 6 of 7
       4(B)’s seventy-day deadline because he was not incarcerated on the charges in

       this case. Further, after he waived his right to a speedy trial, he did not renew

       his request once he was in custody in Harrison County to answer for the current

       charges.


[20]   For the reasons stated above, we affirm the judgment of the trial court and

       remand for further proceedings.


[21]   Affirmed and remanded.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1896 | February 21, 2019   Page 7 of 7
