Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                     Aug 28 2013, 5:41 am
regarded as 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:

JON C. OWEN                                      GREGORY F. ZOELLER
Kendallville, Indiana                            Attorney General of Indiana

                                                 CYNTHIA L. PLOUGHE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DANA L. BERING,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 57A05-1212-CR-646
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                        APPEAL FROM THE NOBLE CIRCUIT COURT
                         The Honorable James R. Heuer, Special Judge
                                Cause No. 57C01-1103-FD-1



                                      August 28, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       The appellant-defendant, Dana L. Bering, brings this interlocutory appeal

challenging the trial court’s denial of her motion for discharge under Criminal Rule 4(C).

In support of her contention, Bering claims that the trial court did not properly calculate

the delays that were attributable to the State.

       The record supports the trial court’s determination that the delays in bringing

Bering to trial were caused by her motions to continue hearings, trial dates, and her entry

of a guilty plea. When the guilty plea was in effect, no trial was needed. Thus, Criminal

Rule 4 that is designed to bring about a speedy trial had no purpose at that time.

However, when Bering’s guilty plea was vacated, Criminal Rule 4 again became

relevant. When Bering filed her motion for discharge, only 187 days of the allotted 365

days set forth in Criminal Rule 4 had expired. Thus, the trial court properly determined

that Bering was not entitled to be discharged. As a result, we affirm the trial court’s

judgment and remand this cause for trial.

                                               FACTS

       On March 8, 2011, the State charged Bering with five counts of theft and one

count of fraud. An initial hearing was conducted that same day, and the trial court set an

omnibus date for May 12, 2011. Although a pretrial conference was to be conducted on

May 12, 2011, Bering moved to continue that conference. Her motion for continuance

was granted and the trial court rescheduled the pretrial conference to June 6, 2011. The

trial court attributed this delay to Bering.



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       On June 6, 2011, the trial court scheduled a jury trial for October 18, 2011, and a

final pretrial conference for September 29, 2011. However, on September 26, Bering

orally moved to continue the final pre-trial conference, as well as the trial date. The trial

court granted Bering’s motion and reset her trial for January 31, 2012. The trial court

also charged Bering with that delay. Bering’s final pre-trial conference was scheduled

for January 12, 2012, the last date on which the trial court would accept a guilty plea

before trial.

       On January 12, 2012, the parties submitted a plea agreement to the trial court.

Thereafter, the trial court conducted a guilty plea hearing after which the trial date of

January 31, 2012, was vacated. The trial court scheduled Bering’s sentencing for March

8, 2012.

       The State subsequently moved to withdraw the guilty plea on February 3, 2012,

and the trial court set that motion for hearing on March 7, 2012. On March 6, 2012,

Bering filed a motion for the recusal of the trial judge. That motion was granted the same

day and Judge Heuer of Whitley Circuit Court accepted the appointment as special judge

on March 8, 2012.

       On May 3, 2012, the State filed a motion for hearing and to set the matter for trial.

On May 7, the trial court set the cause for a pre-trial conference on June 4, 2012. The

hearing was subsequently reset for June 27, 2012. On that day, the trial court heard

argument on the State’s motion to withdraw the guilty plea and took the matter under



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advisement. The trial court granted the motion on July 31, 2012, and scheduled a pre-

trial conference for August 20, 2012.

      On that day, the parties met for a pre-trial conference at which time the trial court,

over Bering’s objection, set a trial date for December 18, 2012. Bering filed a motion for

discharge on August 20, 2012, claiming that the provisions of Criminal Rule 4(C) had

been violated.   The trial court subsequently issued an order on November 7, 2012,

denying Bering’s motion for discharge.

      The trial court granted Bering’s request on November 26, 2012, that the matter be

certified for interlocutory appeal. We accepted jurisdiction over the interlocutory appeal

on February 4, 2013.

                            DISCUSSION AND DECISION

      In determining whether the trial court properly denied Bering’s motion for

discharge, we note that the right to a speedy trial is guaranteed in accordance with the

Sixth Amendment to the United States Constitution and by Article I, Section 12 of the

Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). The provisions of

Criminal Rule 4 assist in implementing this right by establishing time deadlines by which

trials must commence. Collins v. State, 730 N.E.2d 181, 182 (Ind. Ct. App. 2000).

Criminal Rule 4(C) provides in relevant part that

      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

                                            4
       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.

       Although the duty to bring a defendant to trial within the requirements of Criminal

Rule 4(C) generally rests with the State, the rule explicitly provides that the period of

time under the rule is extended for delays that are caused by the defendant’s own act or a

continuance that is had on the defendant’s own motion. Cook v. State, 810 N.E.2d 1064,

1066-67 (Ind. 2004). In other words, if a defendant “seeks or acquiesces in any delay

that results in a later trial date, the time limitations of the rule are also extended by the

length of those delays.” Wooley v. State, 716 N.E.2d 919, 924 (Ind. Ct. App. 1999).

       We initially observe that the State correctly maintains that Bering waived her right

to a speedy trial when she pleaded guilty. Branham v. State, 813 N.E.2d 809, 811 (Ind.

Ct. App. 2004). Indeed, Bering pleaded guilty and signed an agreement, which included

as one of its advisements, that she had a right to proceed to trial and that by entering the

guilty plea, she was waiving that right. Appellant’s App. p. 41.

       At the guilty plea hearing, the trial court orally advised Bering of her right to a

trial and reminded her that she was waiving that right by pleading guilty.            Bering

acknowledged that she understood those rights and the consequences of pleading guilty.

As a result, Bering has waived her right to a speedy trial. Id. at 811.

                                              5
       Waiver notwithstanding, we note that the period of time embodied in the rule

commenced on March 8, 2011, which was the date that the charges were filed and the

date Bering was arrested. Appellant’s App. p. 3. However, that initial segment ended

sixty-five days later on May 12, 2011, when Bering moved to continue the pre-trial

conference that had been set for that day. The next pre-trial conference was scheduled

for June 16, 2011, that resulted in a thirty-five day delay in setting a trial date for

Bering’s case.

       As noted above, a trial date was set for October 18, 2011, and the trial court

scheduled a final pre-trial conference for September 29, 2011. However, as noted above,

Bering moved to continue both dates on September 26, 2011. The trial court granted

Bering’s motion, and her trial was reset for January 31, 2012, with a final pre-trial

conference set for January 12, 2012. That said, the 102 days from the June 16, 2011, pre-

trial conference until September 26, 2011, properly accrue against the rule period. Time

beyond the filing of Bering’s motion to continue the trial date, however, does not accrue

against that period. In other words, this was a delay that Bering clearly caused by her

motion and the next 108 days—from September 26, 2011, until January 12, 2012—fall

outside the period set forth in the rule. That said, only 167 days of the allotted 365-day

period had expired.

       The next delay occurred on January 12, 2012, when Bering pleaded guilty and

waived her right to proceed to trial. The trial court questioned Bering in detail, and after

knowingly and voluntarily entering a guilty plea, it vacated the existing trial date. That

                                             6
said, the delay following Bering’s guilty plea is chargeable to her because the delay was

caused by her decision to plead guilty. Cook, 810 N.E.2d at 1066-67.

         The delay after the vacation of the trial date because of the guilty plea did not end

until July 31, 2012, which was the date that the trial court granted the State’s motion to

reject the guilty plea. Until that point, there was no need for a trial because Bering had

pleaded guilty and waived her right to a trial.

         Although Criminal Rule 4 is designed to assure a speedy trial, it is not to be used

as a technical means to avoid a trial. Cundiff v. State, 967 N.E.2d 1026, 1028 (Ind.

2012).     Indeed, Bering was afforded earlier trial settings so there is no question that the

trial court was attempting to bring Bering to trial as quickly as possible. However, as

noted above, Bering moved to continue the first trial date and pleaded guilty immediately

before the second. Therefore, the purpose and spirit of Criminal 4(C) were fulfilled. In

other words, during the existence of the otherwise valid guilty plea, there was no need for

a trial, thus removing any practical application of Criminal Rule 4.

         On the other hand, the period of time embodied in the rule came back into effect

when the trial court vacated the guilty plea. At that point, a trial was again required and

the provisions of Criminal Rule 4 were needed to protect Bering’s right to a speedy trial.

To reiterate, the trial court vacated Bering’s proposed guilty plea on July 31, 2012, and

set the case for a pre-trial conference on August 20, 2012. On that date, Bering filed the

motion for discharge. The twenty days (from July 31, 2012, until August 20, 2012)

would accrue against the rule period and, added to the already-expired lapse of 167 days,

                                               7
results in only 187 days of the 365 days allotted to the State having expired when Bering

filed the motion for discharge.

       In conclusion, the delays were caused by Bering’s various motions for

continuances that delayed the proceedings.       Bering’s initial decision to plead guilty

rendered any need for a trial, speedy, or otherwise, moot. And because the period set

forth in the rule had not yet expired at the time of the discharge motion, Bering was not

entitled to relief.

       The judgment of the trial court is affirmed and this cause is remanded for trial.

FRIEDLANDER, J., and VAIDIK, J., concur.




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