MEMORANDUM DECISION                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Apr 13 2016, 9:33 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael J. Spencer                                       Gregory F. Zoeller
Noah T. Williams                                         Attorney General of Indiana
Bloomington, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott Afanador,                                          April 13, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         53A01-1509-CR-1326
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Mary Ellen
Appellee-Plaintiff.                                      Diekhoff, Judge
                                                         Trial Court Cause No.
                                                         53C05-1207-FB-669



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016                Page 1 of 8
                                             Case Summary
[1]   Scott Afanador appeals the trial court’s denial of his motion for discharge

      pursuant to Indiana Rule of Criminal Procedure 4(C). We affirm.


                                                      Issue
[2]   The sole restated issue is whether the trial court properly calculated the time

      permitted under Indiana Rule of Criminal Procedure 4(C) to bring Afanador to

      trial.


                                                     Facts
[3]   On July 17, 2012, the State charged Afanador with (1) Class B felony robbery;

      (2) Class B felony unlawful possession of a firearm by a serious violent felon;

      (3) Class C felony carrying a handgun without a license; (4) Class D felony

      criminal recklessness; and (5) Class D felony theft. The State also alleged

      Afanador to be an habitual offender.


[4]   There were a number of delays in bringing Afanador to trial. Those delays

      included, among other things, motions to suppress and petitions for

      interlocutory review Afanador filed and continuances the State requested. On

      July 31, 2014, the trial court denied Afanador’s second motion to suppress.

      The trial court granted Afanador’s motion to certify the order for interlocutory

      appeal, and Afanador filed a timely petition for interlocutory review on

      September 4, 2014. This court denied that motion on October 3, 2014. On

      June 23, 2015, the trial court entered that order on its docket and set the case

      for pretrial conference.
      Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016   Page 2 of 8
[5]   On July 1, 2015, Afanador filed a motion to dismiss pursuant to Indiana Rule

      of Criminal Procedure 4(C). The trial court denied Afanador’s motion on

      August 4, 2015, and scheduled a jury trial for August 17, 2015. At Afanador’s

      request, the trial court then stayed the trial proceedings and certified its August

      4, 2015 order for interlocutory appeal. We accepted interlocutory jurisdiction

      of this matter on October 9, 2015, pursuant to Indiana Rule of Appellate

      Procedure 14(B).


                                                   Analysis
[6]   Criminal Rule 4(C) provides that a defendant may not be held to answer a

      criminal charge for a period in aggregate of greater than one year unless the

      delay is caused by the defendant, an emergency, or court congestion. “The

      duty to bring the defendant to trial within one year rests with the State, and the

      defendant has no duty to remind either the State or the trial court concerning

      the State’s duty.” Todisco v. State, 965 N.E.2d 753, 755 (Ind. Ct. App. 2012),

      trans. denied. Although the purpose of Criminal Rule 4(C) is to create early

      trials, not to discharge defendants, a defendant may seek and be granted a

      discharge if he or she is not tried within the dictates of the rule. See McCloud

      v. State, 959 N.E.2d 879, 884 (Ind. Ct. App. 2011), trans. denied.


[7]   Our supreme court recently observed there has been “some confusion about

      what the standard of review should be in reviewing appeals of Criminal Rule 4

      motions.” Austin v. State, 997 N.E.2d 1027, 1038 (Ind. 2013). The court held

      that in cases where a trial court makes a finding of fact regarding congestion or

      emergency under Criminal Rule 4 based on disputed facts, the standard of
      Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016   Page 3 of 8
      appellate review is the clearly erroneous standard. Id. at 1040. “[I]n cases

      where the issue is a question of law applied to undisputed facts, the standard of

      review—like for all questions of law—is de novo.” Id. at 1039. The facts in this

      case are not in dispute. We review the trial court’s order under the de novo

      standard of review.


[8]   In his Appellant’s Brief, Afanador contends there are two periods of time that

      should be attributed to the State for purposes of a Criminal Rule 4(C)

      calculation. The first is the time during which his September 2014 petition for

      interlocutory review was pending before this court. The second is the 263-day

      period that elapsed between this court’s October 3, 2014 order denying

      interlocutory review and June 23, 2015, the date on which the trial court

      entered that order on its docket. See Appellant’s Br. pp. 9-13. In his Reply

      Brief, however, Afanador concedes his argument regarding the first contested

      period of time—during which his petition for interlocutory review was

      pending—and agrees that time should be attributed to him. Reply Br. p. 8, n.3.

      In light of that concession, we address only Afanador’s argument regarding the

      263 days that elapsed between our order denying interlocutory review and the

      trial court’s entering that order on its docket.


[9]   The trial court’s order denying Afanador’s motion to dismiss and for discharge

      stated:

                1.     Defendant was charged on July 17, 2012.




      Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016   Page 4 of 8
        2.   As of July 1, 2015, 2015 it has been 1,079 days since
        Defendant was charged.


        3.     Defendant moved to continue six times, causing 242 days
        of delay.


        4.    Defendant filed motions to suppress on three separate
        occasions, causing 183 days of delay.


        5.    Defendant filed two motions to certify interlocutory appeal
        causing 114 days of delay.


        6.     State moved to continue 4 times, causing 1791 days of
        delay.


        7.    The pretrial conference scheduled for February 11, 2014
        was rescheduled to February 13, 2014 because the presiding
        judge was unavailable, causing a delay of two days.


        8.     The State moved to vacate in order for both sides to file
        written briefs on May 9, 2014, causing a 66 day delay. The
        Defendant did not object to this delay.


        9.   On October 3, 2014, the Court of [A]ppeals denied the
        Defendant’s second motion to certify interlocutory appeal.




1
 We note that the trial court’s order does not indicate whether Afanador objected to the State’s
continuances. Because Afanador does not argue that the trial court incorrectly attributed the 179 days of
delay for the State’s continuances to him, he has waived any argument regarding allocation of those days.
See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006). We, therefore, do not endeavor to determine
whether the trial court properly charged Afanador with those days.

Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016            Page 5 of 8
        10. On June 23, 2015, the Trial Court and the State received
        notice of the Court of Appeals’ order.


        11. The time between the Court of Appeals’ order and the
        time the Trial Court received the order was 263 days.


        12. On July 1, 2015, Defendant filed a motion to dismiss and
        discharge, causing a 34-day delay.


                                              *****


        There are 820 days of delay directly attributable to the [sic] or to
        which the defendant did not object, giving the Court 1,185 days
        to bring this cause to trial before violating Criminal Rule 4(C).
        As of August 4, 2015 [the date of the order], the Court has 72
        days remaining to bring the cause to trial in a timely manner.


App. pp. 420-21.


Our review of this order reveals the trial court did not include the disputed 263

days in its calculation of Criminal Rule 4(C) time. In order to reach the “820

days of delay directly attributable to the [sic] or to which [Afanador] did not

object,” the trial court appears to have added the following:


1.      242 days for Afanador’s continuances;


2.      183 days for Afanador’s motions to suppress;




Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016   Page 6 of 8
       3.      1142 days for Afanador’s two motions to certify interlocutory appeal;


       4.      179 days for the State’s four continuances;


       5.      two days for a pretrial conference that was rescheduled because the

       presiding judge was unavailable;


       6.      sixty-six days for the State’s request to vacate so that the parties could file

       briefs; and


       7.      34 days for Afanador’s motion to dismiss and discharge.


       See App. p. 420. The sum of those seven numbers is 820, the number of days of

       delay the trial court attributed to Afanador as of its August 4, 2015 order. It

       does not include the 263 days claimed by Afanador.


[10]   In order to determine the date by which the State was required to bring

       Afanador to trial in compliance with Criminal Rule 4(C), we next add to the

       820 days of delay the 365 days provided for by the rule. The sum of those

       numbers is 1,185 days. The State charged Afanador on July 17, 2012. It was

       required to bring him to trial 1,185 days later: on or before October 10, 2015.3



       2
         Afanador does not agree this calculation is accurate. Instead, he contends the periods of interlocutory
       appeal amounted to only 93 days of delay. He concedes, however, “This discrepancy is not central to the
       Appellant’s argument . . . .” Appellant’s Br. p. 10, n.3. Because the twenty-one-day discrepancy to which
       Afanador points does not change our conclusion, and because Afanador does not pursue his contention
       regarding this calculation with a cogent, reasoned argument as required by Indiana Rule of Appellate
       Procedure 46(A)(8), he has waived it. We will use the 114-day figure from the trial court’s order in our own
       calculation.
       3
        We note the trial court concluded that, as of August 4, 2015, seventy-two days remained during which it
       must try Afanador in order to comply with Criminal Rule 4(C). When we calculate August 4, 2015, plus

       Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016             Page 7 of 8
Afanador filed his motion for discharge on July 1, 2015. The relevant time

period in a Criminal Rule 4(C) calculation is the date on which the defendant

was charged until the date he or she filed a motion to dismiss and discharge.

Curtis v. State, 948 N.E.2d 1143, 1149 (Ind. 2011). Here, that period was only

1,084 days. The trial court concluded the time allowed by Criminal Rule 4(C)

had not yet expired at the time it denied Afanador’s motion on August 4, 2015.

Although the trial court erroneously calculated the relevant time period from

the date the State charged Afanador to the date the trial court denied his motion

for discharge, for the foregoing reasons, we agree with its conclusion.


                                             Conclusion
The trial court did not, as Afanador contends attribute the time that elapsed

between this court’s October 3, 2014 order denying interlocutory review and

June 23, 2015, the date on which the trial court entered that order on its docket,

to Afanador in its Criminal Rule 4(C) calculation. We affirm. 4


Affirmed.


Robb, J., and Altice, J.. concur.




seventy-two days, we arrive at October 15, 2015. It is not clear why there is a discrepancy between our
calculation and the trial court’s, but it does not change our conclusion.
4
 We note that neither party’s brief includes a calculation of the time at issue or suggests a date by which the
State was required to bring Afanador to trial. That information would have been helpful to our review of this
case and may well have resulted in a more efficient resolution of this matter.

Court of Appeals of Indiana | Memorandum Decision 53A01-1509-CR-1326 | April 13, 2016               Page 8 of 8
