MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Sep 05 2018, 8:10 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Eugene Ritter,                                   September 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1711-CR-2744
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas L. Clem,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48E02-0608-FD-353



Altice, Judge


Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018       Page 1 of 16
                                             Case Summary
[1]   Michael Ritter appeals his convictions of false informing as a Class B

      misdemeanor and operating a vehicle while intoxicated as a Class D felony,

      and the determination that he was an habitual substance offender. He also

      appeals the aggregate sentence imposed of six years in the Indiana Department

      of Correction (DOC). He presents the following issues for our review, which

      we expand and restate as:


              1.       Whether the trial court erred in denying his motion to
                       dismiss pursuant to Criminal Rule 4(C);


              2.       Whether he was denied his right to a speedy trial; and


              3.       Whether his six-year sentence is inappropriate.


[2]   We affirm.


                                   Facts & Procedural History
[3]   In the early morning of August 25, 2006, Elwood Police Officer Nicholas

      Oldham was patrolling the streets when he observed a vehicle traveling on the

      wrong side of the road. Officer Oldham initiated a traffic stop and approached

      the vehicle. When he began speaking with the driver, Ritter, he smelled alcohol

      and noticed that Ritter had watery, bloodshot eyes, and slurred speech.


[4]   Ritter told Officer Oldham that he did not have a driver’s license. He provided

      the officer with his correct first and last name but gave a different middle initial,

      an incorrect birth date, and an incorrect social security number. Officer
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      Oldham asked Ritter several times for his date of birth and social security

      number. Each time, however, Ritter provided the same incorrect information.

      The officer also asked Ritter for his age, but the age Ritter provided did not

      match the year of birth he gave the officer. The officer then asked Ritter to step

      out of the vehicle so that he could perform field sobriety tests. Ritter failed the

      horizontal gaze nystagmus test, the walking heel to toe test, and the balancing

      on one leg test.


[5]   Ritter was transported to the police station. In an effort to determine Ritter’s

      true identify, Officer Oldham made telephone calls to different police agencies.

      The officer was eventually able to identify Ritter.


[6]   On August 28, 2006, Ritter was charged with Count I, Class A misdemeanor

      operating a vehicle while intoxicated endangering a person, Count II, Class B

      misdemeanor false informing, and Count III, Class D felony operating a vehicle

      while intoxicated. On August 30, 2006, the trial court set the matter for a jury

      trial to take place on March 27, 2007. Ritter was in jail until January 30, 2007,

      at which point he was released when the trial court granted his motion for

      release.


[7]   On March 27, 2007, the trial was continued and reset for November 13, 2007,

      due to court congestion. On November 13, 2007, the trial was continued and

      reset for July 15, 2008, due to court congestion. On July 15, 2008, the trial was

      continued until March 24, 2009, due to court congestion. On March 24, 2009,

      the jury trial date was continued due to court congestion to November 24, 2009.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 3 of 16
       On March 15, 2010, the trial court made an entry stating that the jury trial

       scheduled for November 24, 2009, had been continued to November 16, 2010,

       due to court congestion. On May 8, 2010, Ritter sought and obtained a

       continuance of the jury trial, which was rescheduled for May 17, 2011.


[8]    On May 2, 2011, Ritter failed to appear for a final pre-trial conference, and a

       warrant was issued for his arrest. On May 6, 2011, the trial court canceled the

       jury trial set for May 11, 2011. Ritter was arrested on September 4, 2012.


[9]    On October 1, 2012, the trial court held a contempt hearing regarding Ritter’s

       failure to appear on May 2, 2011. Ritter advised the trial court that he had been

       in and out of the hospital with medical issues. The trial court released Ritter on

       bond, reset the matter for a final pre-trial conference on December 10, 2012,

       and scheduled the jury trial for January 22, 2013.


[10]   On November 13, 2012, Ritter filed a motion to dismiss, alleging that he had

       been denied a speedy trial per Indiana Criminal Rule 4(C). On December 6,

       2012, the trial court held a hearing regarding the motion. The trial court denied

       the motion on December 12, 2012.


[11]   On January 4, 2013, the State filed a motion to amend the charging

       information. The motion was granted, and the State charged Ritter with an

       additional count, habitual substance offender. On January 16, 2013, the State

       filed a second amended information, which added a Class C misdemeanor

       operating a vehicle while intoxicated count. Thus, the final counts were as

       follows: Count I, Class A misdemeanor operating a vehicle while intoxicated

       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 4 of 16
       endangering a person, Count II, Class B misdemeanor false informing, Count

       III, Class C misdemeanor operating a vehicle while intoxicated, Count IV,

       Class D felony operating a vehicle while intoxicated, and Count V, habitual

       substance offender.


[12]   Ritter failed to appear for his trial and was tried in absentia on January 22,

       2013. The jury found him guilty of all charges, and the trial court found him to

       be in contempt for not showing up at his trial. The trial court noted that

       sentencing would take place upon Ritter’s apprehension. The trial court issued

       a warrant for Ritter’s arrest, which was served on July 29, 2017.


[13]   Ritter’s sentencing hearing was held on October 30, 2017. The trial court

       entered judgment on Counts II, IV, and V and sentenced Ritter to six months

       on Count II and three years on Count IV, to be served concurrently. The

       sentence was enhanced by three years due to Count V, habitual substance

       offender, resulting in an aggregate sentence of six years. Ritter now appeals.

       Additional facts will be provided as necessary.


                                        Discussion & Decision

                                        1. Criminal Rule 4(C)
[14]   Ritter claims that the trial court erred by denying his motion to dismiss

       pursuant to Criminal Rule 4(C). As we consider Ritter’s argument, we note

       that we review a trial court’s denial of a motion to dismiss for an abuse of

       discretion. Johnson v. State, 774 N.E.2d 1012, 1014 (Ind. Ct. App. 2002). In

       reviewing the trial court’s decision for an abuse of discretion, we reverse only

       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 5 of 16
       where the decision is clearly against the logic and effect of the facts and

       circumstances. Id.


[15]   Criminal Rule 4(C) provides, for our purposes, that a defendant may not be

       held to answer a criminal charge for greater than one year “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; . . .” This rule protects the right of an

       accused to a speedy trial, which is guaranteed by the Sixth Amendment to the

       United States Constitution and protected by Article 1, Section 12 of the Indiana

       Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). The rule places

       an affirmative duty on the State to bring a defendant to trial within one year of

       being charged or arrested. Cook v. State, 810 N.E.2d 1064, 1065 (Ind. 2004).

       The focus of Criminal Rule 4 is not fault, but to ensure early trials. Curtis v.

       State, 948 N.E.2d 1143, 1151 (Ind. 2011).


[16]   Under Criminal Rule 4(C), the time period begins “from the date the criminal

       charge against such defendant is filed, or from the date of his arrest on such

       charge, whichever is later[.]” Crim. R. 4(C). Delays caused by emergency or

       court congestion do not count toward the one-year period. Id. In addition,

       delays caused by the defendant extend the Rule 4(C) one-year time period.

       Crim. R. 4(F). “In the end, tacking on additional time to the one-year period

       and excluding days from the one-year period are one and the same.” Curtis, 948

       N.E.2d at 1150. Thus, to analyze a claim under Criminal Rule 4(C), we



       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 6 of 16
       determine whether the time not attributable to the defendant’s delays, court

       congestion, or emergency exceeds 365 days. Id.


[17]   When court congestion results in the continuance of a trial, the continuance

       must be for a reasonable time. Young v. State, 765 N.E.2d 673, 676 (Ind. Ct

       App. 2002) (citing Crim. R. 4). The trial judge’s determination of a reasonable

       delay is reviewed under an abuse of discretion standard. Id.; see also Loyd v.

       State, 272 Ind. 404, 409, 398 N.E.2d 1260, 1265 (1980) (“The reasonableness of

       such delay must be judged in the context of the particular case, and the decision

       of the trial judge will not be disturbed, except for an abuse of discretion.”).


[18]   Here, the State filed charges against Ritter on August 28, 2006, and Ritter’s trial

       was originally scheduled for March 27, 2007, 211 days later. His trial date was

       then continued and rescheduled numerous times due to court congestion.

       Ritter challenges only one of the trial court’s findings of congestion, the fourth

       finding of congestion, contending that the trial court failed to reset his jury trial

       within a reasonable time. Specifically, on March 15, 2010 (in what appeared to

       be a nunc pro tunc order), the trial court made an entry stating that the jury trial

       scheduled for November 24, 2009, had been continued to November 16, 2010,

       due to court congestion. According to Ritter, the trial court’s resetting of the

       trial date for 358 days later was not “within a reasonable time,” and, thus,

       violated Rule 4(C). Appellant’s Brief at 14. We disagree.


[19]   The trial court provided that the reason for the continuance was court

       congestion. Such a delay clearly falls within the exceptions set forth in Rule


       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 7 of 16
       4(C). Furthermore, Ritter did not object to the November 16, 2010 trial date. It

       is well-settled that if a defendant seeks or acquiesces in a delay which results in

       a later trial date, the time limitation is extended by the length of such

       delay. Young, 765 N.E.2d at 676 (citing Vermillion v. State, 719 N.E.2d 1201,

       1204 (Ind. 1999)). Moreover, on May 8, 2010, Ritter sought and obtained a

       continuance of his jury trial, and the trial was rescheduled for May 17, 2011.

       Under these circumstances, we conclude that the trial court set Ritter’s trial

       within a reasonable time. No violation of Criminal Rule 4(C) occurred here.


               2. Right to Speedy Trial Under the U.S. and Indiana
                                  Constitutions
[20]   We next address whether Ritter was denied his right to a speedy trial under the

       U.S. and Indiana Constitutions. The protections of Rule 4(C) are not

       coextensive with the protections guaranteed by the Sixth Amendment of the

       U.S. Constitution and Article 1, Section 12 of the Indiana Constitution; thus,

       the trial court’s technical compliance with Rule 4(C) does not end our inquiry.

       Logan v. State, 16 N.E.3d 953, 961 (Ind. 2014).


[21]   Ritter argues that the 2,269-day delay from the filing of the charges against him

       until his trial occurred violated his rights to a speedy trial under the U.S. and

       Indiana Constitutions and thus entitled him to dismissal of the charges against

       him. The Sixth Amendment to the U.S. Constitution provides, in relevant part,

       that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy

       and public trial. . . .” U.S. Const. amend. VI. Article 1, Section 12 of the

       Indiana Constitution states, in applicable part, that “[j]ustice shall be

       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 8 of 16
       administered freely, and without purchase; completely, and without denial;

       speedily, and without delay.” Ind. Const. art. 1, § 12. 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).


[22]   As an initial matter, the State argues, and Ritter concedes, that Ritter waived

       his constitutional claims because he raises them for the first time on appeal.

       Waiver notwithstanding, we address Ritter’s claims.


[23]   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).

       The inquiry into whether there was a speedy trial violation involves “a

       balancing test, in which the conduct of both the prosecution and the defendant

       are weighed.” Barker v. Wingo, 407 U.S. 514, 530 (1972). Barker dictates the

       factors to be considered are: 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. Id.


                                             Length of Delay
[24]   The length of delay is a “triggering mechanism,” and the other factors need

       only be considered once the delay is “presumptively prejudicial.” Barker, 407

       U.S. at 530. Here, the near six-and-one-half-year delay between the filing of the

       charges against Ritter and his trial calls into question his constitutional right to

       a speedy trial. As such, we apply the Barker approach and take each additional

       factor in turn. See Vermillion, 719 N.E.2d at 1206 (citing Doggett v. United States,

       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 9 of 16
       505 U.S. 647, 652 n.1 (1992)) (a delay of more than a year post-accusation is

       “presumptively prejudicial” and triggers the Barker analysis).


                                            Reason for Delay
[25]   Regarding the reason for delay, we are instructed to look at “whether the

       government or the criminal defendant is more to blame for that delay.” Doggett,

       505 U.S. at 651. In Barker, the U.S. Supreme Court determined that:


               different weights should be assigned to different reasons. A
               deliberate attempt to delay the trial in order to hamper the
               defense should be weighted heavily against the government. A
               more neutral reason such as negligence or overcrowded courts
               should be weighted less heavily but nevertheless should be
               considered since the ultimate responsibility for such
               circumstances must rest with the government rather than with the
               defendant.


       407 U.S. at 531. Here, no evidence was presented that the State delayed

       Ritter’s trial in order to hamper the defense. However, the evidence does

       establish that once Ritter’s initial trial was set for March 27, 2007, the trial court

       continued his trial five times due to court congestion (from March 27, 2007

       until November 16, 2010). The delays due to court congestion must be

       considered against the State. See id.


[26]   Meanwhile, every other delay was attributable to Ritter. He requested and was

       granted a continuance of his November 16, 2010 jury trial to May 17, 2011,

       suggesting that he was not prepared to go to trial on November 16, 2010. He

       then failed to show for his final pre-trial conference, which caused the trial court

       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 10 of 16
       to have to cancel the May 17, 2011 trial, issue a warrant for Ritter’s arrest,

       reschedule the pre-trial conference, and reschedule Ritter’s trial for January 22,

       2013.


[27]   While the delays due to court congestion caused more than three-and-one-half-

       years of delay, and are considered against the State, Ritter caused over two

       years of additional delay because he requested a continuance and failed to show

       for a pre-trial conference. After weighing the reasons for delay, and

       acknowledging that this is a close call, we find that this factor weighs in Ritter’s

       favor.


                              Assertion of Right to Speedy Trial
[28]   With regard to the third Barker factor, namely if or when Ritter asserted the

       speedy trial right, the record reflects that Ritter did not assert his speedy trial

       right until November 13, 2012, when he filed his motion to dismiss. He filed

       his motion to dismiss after seeking a continuance of his trial, after failing to

       show for a pre-trial conference, and forty-five days after the trial court reset his

       trial for January 22, 2013. This factor weighs heavily against Ritter.


                                                   Prejudice
[29]   “The final factor in the Barker test, prejudice, is assessed in light of the three

       interests which the right to a speedy trial was designed to protect: (i) to prevent

       oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the

       accused; and (iii) to limit the possibility that the defense will be impaired.”

       Sweeney, 704 N.E.2d at 103 (citing Barker, 407 U.S. at 532). The most

       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 11 of 16
       important of the three is limiting the possibility of defense impairment. Barker,

       407 U.S. at 532. 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.


[30]   Regarding pre-trial incarceration, Ritter was released from incarceration on

       January 30, 2007, after spending approximately five months in jail. He was

       arrested on September 4, 2012, for failing to appear for his final pre-trial

       conference, but was released on bond on October 1, 2012. While Ritter does

       suffer from medical problems, there was no evidence that he suffered anxiety

       due to the delays in his case. In addition, Ritter showed little concern for the

       delay. He did not object when the trial court repeatedly reset his trial as a result

       of court congestion, and he did not file his motion to dismiss until November

       13, 2012, over six years after he was initially charged. He also sought his own

       continuance and failed to show at his final pre-trial conference and at his jury

       trial. Moreover, the record does not establish that the delay in the case

       undermined or impaired Ritter’s defense, e.g., in the form of lost evidence or

       missing witnesses. This factor weighs heavily against Ritter.


[31]   Our balancing of the Barker factors under the facts of this case leads us to

       conclude that the delay did not deprive Ritter of his right to a speedy trial under

       the Sixth Amendment to the U.S. Constitution or Art. 1, Sec. 12 of the Indiana

       Constitution. Accordingly, the trial court did not err in denying Ritter’s motion

       to dismiss the charges against him.



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                                     3. Inappropriate Sentence
[32]   Ritter next argues that his six-year sentence is inappropriate in light of the

       nature of his offenses and his character. He maintains that his sentence should

       be revised because “the nature of the offenses w[as] not uniquely egregious or

       atypical and though he had a criminal history[,] his involvement and support of

       his church, his multiple health problems, which include epilepsy and cancer,

       and military service support his character.” Appellant’s Brief at 13.


[33]   Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we find that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender. When reviewing a sentence, our principal role is to leaven the

       outliers rather than necessarily achieve what is perceived as the correct result in

       each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not

       look to determine if the sentence was appropriate; instead we look to make sure

       the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012).


[34]   “[S]entencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference.” Cardwell, 895 N.E.2d at

       1222. “Such deference should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson


       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 13 of 16
       v. State, 29 N.E.3d 111, 122 (Ind. 2015). In conducting our review, we may

       consider all aspects of the penal consequences imposed by the trial court in

       sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). In addition, as we assess the nature of the offense and

       character of the offender, “we may look to any factors appearing in the

       record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Ritter has

       the burden to show that his sentence is inappropriate. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[35]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the General Assembly has selected as

       an appropriate sentence for the crime committed. Childress v. State, 848 N.E.2d

       1073, 1081 (Ind. 2006). Ritter was convicted of false informing as a Class B

       misdemeanor and operating a vehicle while intoxicated as a Class D felony. He

       also was found to be an habitual substance offender. At the time Ritter

       committed the offenses, the sentence for a Class B misdemeanor was a “fixed

       term of not more than one hundred eighty (180) days.” Ind. Code § 35-50-3-3.

       The sentencing range for a Class D felony was between six months and three

       years, with an advisory sentence of one and one-half years. See I.C. § 35-50-2-7.

       In addition, the habitual substance offender statute provided that “[t]he court

       shall sentence a person found to be a habitual substance offender to an




       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 14 of 16
       additional fixed term of at least three (3) years but not more than eight (8) years

       imprisonment.” I.C. § 35-50-2-10(f) (repealed 2014).


[36]   Although the trial court imposed the maximum sentence for each of Ritter’s

       two convictions, the court ordered them to be served concurrently.

       Furthermore, the court imposed the minimum enhancement for his habitual

       offender enhancement. The court recommended that Ritter be placed in a

       therapeutic community while serving his sentence and advised Ritter that it

       would later consider a modification of his sentence if he successfully completed

       the program.


[37]   As to the nature of Ritter’s offenses, while intoxicated Ritter drove his vehicle

       on the wrong side of the road, potentially placing other drivers in danger.

       When he was stopped and questioned by a police officer, he repeatedly

       provided the wrong birthdate and an incorrect social security number such that

       the officer had to make several calls to various police agencies to determine

       Ritter’s correct identity. No aspect of his offenses persuades us that his

       sentence is inappropriate.


[38]   Ritter also has not shown his sentence to be inappropriate in light of his

       character. When considering the character of the offender, one relevant fact is

       the defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013). The significance of criminal history varies based on the gravity,

       nature, and number of prior offenses in relation to the current offense. Id.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1711-CR-2744 | September 5, 2018   Page 15 of 16
[39]   Ritter has a criminal history that began in 1992 and continues to the present,

       including the following convictions: Class D felony possession of marijuana

       and Class D felony obtaining or attempting to obtain a legend drug by fraud

       (1992); misdemeanor operating while intoxicated (1999); Class D felony

       nonsupport of a dependent child (2000); misdemeanor domestic battery (2004);

       Class D felony battery resulting in bodily injury (2004); misdemeanor driving

       while intoxicated, Class D felony possession of marijuana, and Class D felony

       operating while intoxicated – BAC of .08 or greater (2004); misdemeanor public

       intoxication (2010); and misdemeanor domestic battery (2013). At the time of

       his sentencing, Ritter had a Level 5 felony domestic battery and a Level 6

       felony strangulation case pending. In addition, in the instant case, Ritter failed

       to appear for court for a pre-trial conference and failed to appear for his jury

       trial.


[40]   Under these facts and circumstances, we find that both the nature of the offenses

       and Ritter’s character support the six-year sentence imposed by the trial court.

       Ritter’s sentence is not inappropriate.


[41]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




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