                                                                        FILED
      MEMORANDUM DECISION                                          Jun 29 2016, 9:09 am


      Pursuant to Ind. Appellate Rule 65(D), this                       CLERK
                                                                    Indiana Supreme Court
      Memorandum Decision shall not be regarded as                     Court of Appeals
                                                                         and Tax Court
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Paula M. Sauer                                            Gregory F. Zoeller
      Danville, Indiana                                         Attorney General of Indiana
                                                                Brian Reitz
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Todd A. Brown,                                           June 29, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               32A05-1510-CR-1748
              v.                                               Appeal from the Hendricks Superior
                                                               Court.
                                                               The Honorable Mark A. Smith,
      State of Indiana,                                        Judge.
                                                               Cause No. 32D04-1211-FC-146
      Appellee-Plaintiff.




      Shepard, Senior Judge

[1]   Appellant Todd Brown missed a pre-trial conference on the charge of driving

      while privileges are forfeited for life. He contends, and the record validates,

      that the prosecutor, the court, and his lawyer had reason to believe (including a

      letter Brown sent the court) that his failure to appear was due to being


      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-CR-1748 | June 29, 2016    Page 1 of 6
      incarcerated in the county next door. More than a year passed without any

      action on the case.


[2]   Brown contends his lawyer rendered ineffective assistance by failing to move

      for discharge under Criminal Rule 4.


                               Facts and Procedural History
[3]   The State charged Brown on November 13, 2012, and at Brown’s initial hearing

      the same day, the trial court set a pre-trial conference for January 2, 2013. At

      the pre-trial conference in January, Brown requested a continuance, which the

      court granted. It rescheduled the pre-trial for March 6, 2013. At the March

      conference, Brown again requested a continuance, and the court rescheduled

      the pre-trial conference for April 10, 2013. On April 8, 2013, Brown filed a

      motion to continue, requesting that the pre-trial conference be re-set in sixty

      days. The court granted Brown’s motion and re-set the pre-trial conference for

      June 5, 2013.


[4]   Brown’s counsel appeared on June 5, but Brown did not. The court issued a

      warrant for Brown’s arrest. Following the June 2013 pre-trial conference entry

      and two inconsequential entries regarding the issuance of the warrant, there are

      no entries in the CCS for over a year. The warrant was served on Brown on

      June 13, 2014. On June 16, 2014, Brown appeared in court via video link from

      the county jail. At that time, the trial court set a pre-trial for August 5, 2014.

      From that date forward there were several pre-trial hearings and continuances



      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-CR-1748 | June 29, 2016   Page 2 of 6
      ultimately concluding in a jury trial on August 25, 2015, at which Brown was

      found guilty as charged.


                                                     Issue
[5]   Brown raises two issues, one of which is dispositive: whether his trial counsel

      was ineffective for failing to request his discharge pursuant to Indiana Criminal

      Rule 4(C).


                                   Discussion and Decision
[6]   To prevail on a claim of ineffective assistance, a defendant must establish both

      (1) that counsel’s performance was deficient and (2) that counsel’s deficient

      performance prejudiced the defendant. Johnson v. State, 948 N.E.2d 331 (Ind.

      2011) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

      2d 674 (1984)). To satisfy the first element, the defendant must show that

      counsel’s representation fell below an objective standard of reasonableness and

      that counsel’s errors were so serious that the defendant was denied the counsel

      guaranteed by the Sixth Amendment. Bethea v. State, 983 N.E.2d 1134 (Ind.

      2013). To satisfy the second element, the defendant must show prejudice; that

      is, a reasonable probability that, but for counsel’s errors, the result of the

      proceeding would have been different. Id. There is a strong presumption that

      counsel rendered effective assistance, and the defendant has the burden of

      overcoming this presumption. Harris v. State, 762 N.E.2d 163 (Ind. Ct. App.

      2002), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-CR-1748 | June 29, 2016   Page 3 of 6
[7]   Specifically, Brown bases his claim on counsel’s failure to move for discharge

      under Indiana Criminal Rule 4(C). Criminal Rule 4(C) sets forth a one-year

      time limit for bringing a defendant to trial that begins to run on the date the

      defendant is arrested or charged with a crime, whichever is later. The rule

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

      year. Gibson v. State, 910 N.E.2d 263 (Ind. Ct. App. 2009). The defendant is

      under no obligation to remind the State of its duty or to remind the trial court of

      the State’s duty. Id.


[8]   Here, the State filed charges against Brown on November 13, 2012. Pursuant

      to Criminal Rule 4(C), the State needed to bring Brown to trial by November

      13, 2013. Between the date charges were filed and the June 5, 2013 pre-trial

      conference where Brown failed to appear, three continuances caused delays

      attributable to Brown. See id. (defendant extends one-year period by seeking or

      acquiescing in delay resulting in later trial date). In this case, Brown’s

      continuances extended the one-year trial period by 154 days, thereby making a

      trial necessary, pursuant to Criminal Rule 4(C), by April 16, 2014.


[9]   At the June 5, 2013 pre-trial conference, Brown failed to appear, and the CCS

      reflects no settings by the trial court from June 5, 2013 to June 16, 2014 when

      Brown next appeared in court over a year later. By June 16, 2014, the one-year

      period in which to bring Brown to trial had passed. At the June 2014 hearing,

      the trial court set a pre-trial conference for August 5, 2014, and it is at this point

      that Brown alleges his counsel should have moved for discharge.



      Court of Appeals of Indiana | Memorandum Decision 32A05-1510-CR-1748 | June 29, 2016   Page 4 of 6
[10]   A defendant waives the right to be brought to trial within one year by failing to

       raise a timely objection if the trial court, acting during the one-year period,

       schedules the trial beyond the time limit. Id. By contrast, a defendant has no

       duty to object to the scheduling of a belated trial date if the scheduling occurs

       after the year has expired. Id. Rather, in that situation, the defendant need

       merely move for discharge. Pearson v. State, 619 N.E.2d 590 (Ind. Ct. App.

       1993); see also Young v. State, 765 N.E.2d 673 (Ind. Ct. App. 2002). Thus,

       Brown is correct that his trial counsel should have moved for his discharge at
                                                              1
       the June 2014 hearing or soon thereafter.


[11]   Of course, a defendant cannot be allowed simply to abscond for a year and then

       seek to benefit from his absence by invoking Rule 4. See, e.g., Feuston v. State,

       953 N.E.2d 545 (Ind. Ct. App. 2011) (explaining that when defendant

       absconds, ensuing delay is caused by his act and Criminal Rule 4(C) clock is

       tolled until court and State have actual knowledge of his whereabouts), declined

       to follow on other grounds by Austin v. State, 997 N.E.2d 1027 (Ind. 2013); see also

       Werner v. State, 818 N.E.2d 26 (Ind. Ct. App. 2004) (defendant, whose case is

       midstream in one county and who is subsequently arrested on unrelated charges

       in another county, must provide formal written notice of his incarceration to

       court and State to avoid tolling of one-year time limit), trans. denied.




       1
        Although the CCS shows that Brown appeared without counsel at the June 16, 2014 hearing, it also
       documents notice of the August pre-trial conference setting to Brown’s counsel two days later on June 18,
       2014.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-CR-1748 | June 29, 2016             Page 5 of 6
[12]   We thus have examined what the State and the trial court knew concerning

       Brown’s whereabouts. Brown’s unchallenged contention is that the State and

       the trial court had knowledge of his whereabouts when he failed to appear for

       the June 2013 pre-trial. At the conference on June 5, 2013, Brown’s counsel

       explained to the court he had “a strange feeling that possibly Mr. Brown . . .

       could be in the Marion County Jail.” Tr. p. 19. At the hearing on June 16,

       2014, the State confirmed to the court what defense counsel suspected in June

       2013: “It looks like, uh, prior to the failure to appear that he did send a letter to

       the court advising that he was incarcerated.” Id. at 27.


                                                Conclusion
[13]   We conclude that Brown’s counsel performed deficiently in failing to move for

       discharge. Accordingly, we reverse Brown’s conviction and order that he be

       discharged.


[14]   Reversed and remanded with instructions.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1510-CR-1748 | June 29, 2016   Page 6 of 6
