MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                            Apr 26 2016, 9:47 am
this Memorandum Decision shall not be
                                                                      CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joseph W. Eddingfield                                    Gregory F. Zoeller
Wabash, Indiana                                          Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryan N. Myers,                                          April 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A04-1510-CR-1688
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable Monte L. Brown,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         17D02-1406-FA-16, -17




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016     Page 1 of 7
                                             Case Summary
[1]   In this interlocutory appeal, Bryan N. Myers challenges the trial court’s denial

      of his motion for discharge of his four class A felony drug dealing charges

      pursuant to Rule 4(C) of the Indiana Rules of Criminal Procedure. We reverse

      and remand for an evidentiary hearing on his motion.


                               Facts and Procedural History
[2]   As best we can discern from the materials before us, the facts and procedural

      history are as follows. On June 4, 2014, Myers was charged in DeKalb County

      with a total of four class A felony drug dealing offenses in two separate two-

      count causes, 17D02-1406-FA-16 (“Cause 16”) and 17D02-1406-FA-17

      (“Cause 17”). 1 On June 5, 2014, the trial court made a finding of probable

      cause and directed that arrest warrants be issued to the DeKalb County Sheriff.

      On June 6, 2014, the trial court clerk issued warrants for Myers’s arrest under

      both cause numbers. The warrants included Myers’s street address in Wabash,

      which is in Wabash County. That same day, the warrants were received by the

      Wabash County Sheriff’s Department. At some point, Myers was arrested by

      the Wabash County Sheriff’s Department and incarcerated in the Wabash

      County Jail.




      1
        In both causes, the State charged Myers with class A felony dealing in methamphetamine and class A
      felony dealing in a controlled substance (heroin). As such, we address them together unless otherwise
      indicated.

      Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016           Page 2 of 7
[3]   On May 19, 2015, the DeKalb County prosecutor filed a motion for transport

      order on the basis that it had come to her attention that Myers was currently

      incarcerated in the Wabash County Jail. The trial court granted the motion to

      transport, and Myers was transported to DeKalb County for his initial hearing

      on June 8, 2015.


[4]   On June 26, 2015, Myers filed a motion for discharge pursuant to Criminal

      Rule 4(C), alleging that he had been in custody in Wabash County since June 6,

      2014. On July 27, 2015, the State filed its objections to Myers’s motion,

      claiming that (1) no evidence existed to suggest that Myers had ever been

      arrested on the warrants issued in either cause; (2) no return on the warrants

      was ever filed with the DeKalb Superior Court; (3) nothing in the chronological

      case summary (“CCS”) indicated any return on the warrants, and they were

      instead listed as active warrants; and (4) the DeKalb County prosecutor became

      aware of Myers’s incarceration in Wabash County shortly before she filed the

      motion for transport order on May 19, 2015. Appellant’s App. at 1, 6, 31. The

      parties jointly requested a hearing on Myers’s motion for discharge. Id. at 30.


[5]   On August 7, 2015, without a hearing, the trial court issued an order summarily

      denying Myers’s motion for discharge. On August 28, 2015, Myers filed a

      motion to certify the trial court’s order for interlocutory appeal, which the trial

      court granted on September 21, 2015.


[6]   On September 23, 2015, the State filed a motion to reconsider both the

      discharge order (for failure to hold a hearing) and the certification order. The


      Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016   Page 3 of 7
      trial court set the State’s motion for hearing on October 19, 2015. However, the

      CCS indicates that on October 5, 2015, when the parties appeared for a pretrial

      conference, the trial court also decided to hear the State’s motion to reconsider.

      The CCS also indicates that the trial court vacated the hearing initially

      scheduled for October 19, 2015. At the pretrial conference/hearing, Myers

      submitted as Exhibit A arrest warrants from the DeKalb County Sheriff’s

      Department indicating that the Wabash County Sheriff’s Department had

      received them on June 6, 2014. The portion of the warrants indicating the date

      of service on Myers and date of return with signature are left blank.


[7]   On October 19, 2015, the trial court issued an order which included brief

      findings that the arrest warrants were still pending and that no return of the

      warrants was entered in the CCS. Id. at 155-56. The order does not include a

      ruling on the State’s motion to reconsider the discharge order and is silent

      regarding its certification order. The motions panel of this Court accepted

      jurisdiction of this interlocutory appeal. 2


                                     Discussion and Decision
[8]   Myers asserts that the trial court erred in denying his motion for discharge

      pursuant to Criminal Rule 4(C), which states,




      2
         Myers’s notice of appeal includes a request to the DeKalb Superior Court clerk “to transcribe certify, and
      file … the following hearings of record, including exhibits: Defendant’s Exhibit ‘A’ in Cause [16], [and]
      Defendant’s Exhibit ‘A’ in Cause [17].”

      Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016               Page 4 of 7
               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; provided, however, that in the
               last-mentioned circumstance, the prosecuting attorney shall file a
               timely motion for continuance as under subdivision (A) of this
               rule. Provided further, that a trial court may take note of
               congestion or an emergency without the necessity of a motion,
               and upon so finding may order a continuance. Any continuance
               granted due to a congested calendar or emergency shall be
               reduced to an order, which order shall also set the case for trial
               within a reasonable time. Any defendant so held shall, on
               motion, be discharged.


[9]    Subject to the exceptions listed in Rule 4(C), the State has an affirmative duty to

       bring the defendant to trial within one year of being charged or arrested. Wood

       v. State, 999 N.E.2d 1054, 1060 (Ind. Ct. App. 2013), trans. denied (2014), cert.

       denied (2014). The defendant is neither obligated to remind the court of the

       State’s duty nor required to take affirmative steps to ensure that he is brought to

       trial within the statutory time period. Id. When a defendant moves for

       discharge, he bears the burden of showing that he has not been timely brought

       to trial and that he is not responsible for the delay. Id.


[10]   In reviewing a challenge to a trial court’s ruling on a Rule 4(C) motion for

       discharge, the standard of review depends upon whether the case involves

       application of the law to undisputed facts or the trial court’s issuance of findings


       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016   Page 5 of 7
       resolving disputed facts. Austin v. State, 997 N.E.2d 1027, 1039-40 (Ind. 2013).

       We review the former cases de novo and the latter cases using a clearly

       erroneous standard. Id.


[11]   Unfortunately, this case does not fall neatly into either category. The parties

       appear to dispute the fact of whether and when the warrants were served and

       Myers was placed in custody. However, the record is silent on this important

       factual issue. In this vein, we note the following: (1) the order being appealed

       by Myers is the trial court’s summary order denying discharge; (2) the appealed

       order contains no findings and was issued without an evidentiary hearing

       despite both parties’ requests for hearing; 3 (3) when the trial court eventually

       conducted a hearing, it was on the State’s motion to reconsider and was rolled

       into the pretrial conference; 4 (4) the only order including findings is the order on

       the State’s motion to reconsider, and even at that, the findings are not

       comprehensive and reference the incomplete warrants; (5) the order on the

       State’s motion to reconsider does not include an actual ruling on the motion;




       3
         Criminal Rule 4(C) is silent concerning a defendant’s right to a hearing before the trial court rules on his
       motion for discharge. Nevertheless, because the defendant moving for discharge bears the burden to show
       that he has not been timely brought to trial and that he is not responsible for the delay, Wood, 999 N.E.2d at
       1060, we believe that a hearing typically should be granted upon request before the trial court rules on the
       motion. Here, both parties requested a hearing.
       4
         We have before us no transcript from that conference/hearing, nor should we, as it occurred after the trial
       court denied Myers’s discharge motion. Curiously, however, exhibits from both causes were requested and
       included in the materials before us even though those exhibits were apparently admitted during the hearing
       on the State’s motion to reconsider, which postdated the appealed order denying discharge.

       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016               Page 6 of 7
       and (6) the State did not seek an interlocutory appeal of the order implicitly

       denying its motion to reconsider.


[12]   Simply put, the salient information included in the materials before us consists

       of incomplete warrants and a CCS and trial court orders that shed no light on a

       critical and seemingly easily ascertainable fact: the date on which Myers was

       actually taken into custody in Wabash County. The parties requested an

       evidentiary hearing on Myers’s motion for discharge but did not receive any

       hearing until after the order was issued, when the State requested

       reconsideration for that very reason. We cannot conduct a full and fair review

       on the materials submitted. As such, we reverse the denial of defendant’s

       motion for discharge and remand for an evidentiary hearing on Myers’s motion

       for discharge pursuant to an order to be issued contemporaneously with this

       memorandum decision. We retain jurisdiction of this appeal pursuant to

       Indiana Appellate Rule 37(B).


[13]   Reversed and remanded.


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




       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | April 26, 2016   Page 7 of 7
