                                                                           FILED
                                                                       Oct 11 2019, 8:43 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark K. Leeman                                             Curtis T. Hill, Jr.
Leeman Law Office and                                      Attorney General
Pulaski County Public Defender                             Angela N. Sanchez
Logansport, Indiana                                        Assistant Section Chief,
                                                             Criminal Appeals
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brandon Battering,                                         October 11, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2309
        v.                                                 Appeal from the
                                                           Pulaski Circuit Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff                                         Michael A. Shurn, Judge
                                                           The Honorable
                                                           Mary Welker, Judge
                                                           Trial Court Cause No.
                                                           66C01-1512-F1-3



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                           Page 1 of 19
                                           Case Summary
[1]   Brandon Battering, who is charged with child molesting and child solicitation

      based on allegations that he engaged in sexual conduct with his twelve-year-old

      stepsister, appeals the denial of his motion for discharge under Indiana Rule of

      Criminal Procedure 4(C). Rule 4(C) entitles a criminal defendant to discharge

      if the State fails to bring the defendant to trial within one year of the filing of

      charges or the arrest of the defendant, whichever is later. The deadline can be

      extended for a variety of reasons. Our Supreme Court held in Pelley v. State, 901

      N.E.2d 494 (Ind. 2009), reh’g denied, that when the State pursues an

      interlocutory appeal and the trial-court proceedings get stayed as a result, the

      deadline is extended accordingly. The issue in this case is whether the trial-

      court proceedings were “stayed” when the trial court authorized an

      interlocutory appeal by the State and vacated the upcoming trial date but did

      not actually use the word “stay.” We hold that they were, and we therefore

      affirm the trial court’s denial of Battering’s motion for discharge.



                             Facts and Procedural History
[2]   Rule 4(C) provides, in relevant part, “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[.]”

      Battering was arrested on December 3, 2015, but he was not charged until the

      next day, December 4, 2015. Under Rule 4(C), then, the State initially had

      Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019         Page 2 of 19
      until December 4, 2016, to take Battering to trial. However, at a pretrial

      conference held in April 2016, trial was set for January 24-26, 2017, apparently

      with no 4(C) objection from Battering.


[3]   On January 13, 2017, eleven days before trial was set to begin, Battering filed a

      motion to suppress incriminating statements he made to police, claiming that

      officers had continued questioning him after he invoked his right to remain

      silent. The trial court held a hearing on Battering’s motion on January 19 and

      granted it the same day.


[4]   During a telephonic conference the next afternoon, the prosecutor indicated

      that he would be asking the court to certify its suppression order for

      interlocutory appeal. Defense counsel asked the prosecutor, “Are you going to

      ask to stay the proceedings and to continue the jury trial?” Supp. Tr. p. 7. The

      prosecutor answered, “Yes.” Id. The judge stated that he would be “inclined to

      grant” a motion for certification and that “I would be vacating the trial if I’m

      granting that.” Id. Shortly after the call ended, the State filed a combined

      motion for certification and motion to “continue” the jury trial. Appellant’s

      App. Vol. III pp. 103-04. The State did not explicitly request a “stay,” as it said

      it would, but it asserted, “That in order to allow time for the Court of Appeals

      to review this matter, it is necessary to continue the trial of the Defendant that

      is currently set for January 24, 25, and 26, 2017.” Id. at 104.


[5]   The judge and the lawyers then got back on the phone. The judge said that he

      was going to certify the suppression order for interlocutory appeal and


      Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019      Page 3 of 19
      “continue” the jury trial. Supp. Tr. p. 11. Defense counsel objected to the

      continuance of the trial as follows:


              And for my purposes, Your Honor, I need to show my objection
              to the continuance. We object to any continuance. We’re
              prepared and ready for trial. We believe the State should be, as
              well, and so any – we would object to the continuance. And then
              I will file a Rule 4 issue after this.


      Id. The judge overruled the objection, explaining, “Well, I don’t know how to

      certify this issue for interlocutory appeal and still have a trial, but I sort of think

      that if I’ve got to do the one, I have to do the other. They seem to go hand in

      hand.” Id. The judge added, “If I’m going to grant the interlocutory appeal,

      the trial has to be continued, and so I have to grant the State’s motion for that.”

      Id. at 12. The State did not expressly request a “stay,” nor did the court

      expressly state that it was imposing a “stay,” but at no point did defense

      counsel object on either ground to vacating the trial date. After the conference,

      the trial court issued a written order that provided, in pertinent part, “The Court

      . . . now grants the State’s motion, Orders the issues certified for interlocutory

      appeal, and vac[a]tes the trial setting previously set for January 24, 2017.”

      Appellant’s App. Vol. III p. 123.


[6]   The State then had thirty days to ask this Court to accept the appeal. During

      that period, Battering made multiple filings in the trial court. He filed a Motion

      to Exclude Certain Discovery at Trial on January 26 and a Motion to Reduce

      Bond on February 6. Then, on February 15, he filed a Motion to Set Jury Trial.



      Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019          Page 4 of 19
      The same day, the State filed its motion for interlocutory appeal with this

      Court, which we granted on March 17.


[7]   On June 1, while the appeal was still pending in this Court, the trial court held

      a hearing to address Battering’s motions. As soon as the hearing began,

      though, Battering raised a new issue: he asserted that he was entitled to be

      discharged pursuant to Rule 4(C). Citing Pelley, where our Supreme Court

      explained that “the time for an interlocutory appeal is excluded from Rule

      4(C)’s limitation only when the trial court proceedings have been stayed,” 901

      N.E.2d at 500, Battering argued that the State had not requested a stay of the

      trial-court proceedings pending the interlocutory appeal and that as a result the

      4(C) clock had continued to run and had expired. In the alternative, Battering

      asked that he “get a trial as soon as possible,” Tr. p. 13, without waiting for this

      Court to decide the interlocutory appeal. The trial court and the State, on the

      other hand, agreed that no trial should take place before the conclusion of the

      interlocutory appeal. The court wondered whether it even had “jurisdiction to

      do the entire case” with an interlocutory appeal pending, id. at 18, and then

      asked, “[W]hy would we go forward with the trial on all of the issues if it’s up

      on interlocutory appeal before the decision on interlocutory appeal?”, id. at 20.

      The State maintained that the interlocutory appeal “needs to be determined

      before the trial begins,” id. at 23, and asserted that holding a trial before getting

      a ruling in the appeal “vitiates the whole basis for doing the appeal to begin

      with,” id. at 22. Based on Battering’s guess that the interlocutory appeal would

      be decided by late September or early October of 2017, the trial court scheduled


      Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019        Page 5 of 19
      trial for October 9-12. However, the court also directed the parties to brief the

      Rule 4(C) issue in the meantime. At the end of the hearing, the prosecutor

      added that “since [Battering’s] so adamant about wanting a piece of paper

      saying things are stayed,” the State would be filing a motion to stay. Id. at 37.


[8]   The State had not filed that motion as of June 7, when Battering filed his

      written motion for discharge pursuant to Rule 4(C). Again, Battering argued

      that the trial-court proceedings had not been stayed pending the State’s

      interlocutory appeal and that the delay caused by the appeal is therefore

      attributable to the State under Pelley. The next week, on June 13, the State filed

      a motion to stay. The trial court granted that motion on June 15.


[9]   The State then filed its response to Battering’s motion for discharge. It argued

      that even though it did not formally request a “stay” until two weeks earlier, it

      had effectively sought a stay when it asked the trial court to certify its

      suppression order and to “continue” the trial date:


              [A]lthough the State never filed any “Motion to Stay,” it has
              done the functional equivalent. What a motion actually means is
              not how a party identifies the pleading in the title, but on the
              effect the pleading will have on the proceedings. Although not
              titled as a motion to stay, the motions filed herein by the State
              were designed to achieve the same result. The motions filed by
              the State in this case had the effect of stopping of action until the
              Court of Appeals could rule.


              The motion to certify the order for interlocutory appeal filed in
              the trial court was also a motion to continue the jury trial. It was
              captioned as such. Additionally, it specifically stated, “That in

      Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019         Page 6 of 19
               order to allow time for the Court of Appeals to review this
               matter, it is necessary to continue the trial of the Defendant that
               is currently scheduled for January 24, 25, and 26, 2017.” Also,
               the motion expressly requested that the jury trial “be continued
               pending the resolution of the Interlocutory Appeal . . . .” To find
               that this was not a request for a stay would be to elevate form
               over substance. Though the “magic word” stay was not used, the
               motion unambiguously requests that trial be delayed until after
               resolution of the interlocutory appeal. That is effectively the
               equivalent of a request for a stay. Furthermore, the trial court’s
               order certifying the order for appeal simply stated that it granted
               the motion to certify and motion to continue trial; it did not place
               any caveats on that or alter or limit the wording of the request in
               any way. The court then vacated the current trial dates, which is
               entirely consistent with the State’s request and the grant of a stay
               pending resolution of the appeal. Therefore, the trial court
               effectively granted a stay and recognized that the trial cannot be
               held before resolution of the interlocutory appeal.


       Appellant’s App. Vol. IV pp. 111-12.


[10]   The trial court had not ruled yet on Battering’s motion for discharge when, on

       September 18, 2017, this Court issued an opinion affirming the trial court’s

       suppression order. State v. Battering, 85 N.E.3d 605 (Ind. Ct. App. 2017), reh’g

       denied. The State filed a petition for rehearing, which we denied on November

       30. In late December, before our opinion had been certified, the parties filed

       competing motions in the trial court: on December 19, Battering filed a motion

       to lift the stay and for discharge under Rule 4(C), renewing his claim that the

       State had failed to bring him to trial “within the Rule 4 period,” Appellant’s

       App. Vol. IV p. 154, and on December 27, the State filed a Motion to Set for



       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019      Page 7 of 19
       Jury Trial. Our opinion was certified on January 24, 2018. The trial court then

       lifted the stay and set a hearing date of April 17 on the 4(C) issue.


[11]   At the April 17 hearing, Battering reiterated his argument that the State did not

       request a stay when it pursued the interlocutory appeal and that therefore the

       Rule 4(C) clock had continued running and expired. In response, the State

       again argued that its January 2017 request to “continue” the trial date pending

       the interlocutory appeal was in effect a motion to stay because no trial was

       going to be held until the appeal was complete. The State explained that the

       only reason it formally filed the motion to stay in June 2017 was that Battering

       “kept harping on it[.]” Tr. p. 67. The trial court denied Battering’s motion for

       discharge and scheduled trial for August 29-30, 2018.


[12]   In July 2018, Battering again moved for discharge under Rule 4(C). The trial

       court denied the motion, explaining that the delay caused by the interlocutory

       appeal should not be counted against the State because “the trial court lost

       jurisdiction during that interlocutory appeal[.]” Appellant’s App. Vol. IV p.

       194. However, the court vacated the trial date, certified its order for

       interlocutory appeal, and stayed the proceedings, and we accepted jurisdiction.

       Trial is currently scheduled to begin on January 7, 2020.




       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019      Page 8 of 19
                                   Discussion and Decision
[13]   Battering contends that the trial court erred by denying his motion for discharge

       under Criminal Rule 4(C). The relevant facts are undisputed, so we review the

       issue de novo. See Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013).


[14]   As noted above, Rule 4(C) provides, in pertinent part, “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[.]” Battering was arrested on December 3, 2015, and charged

       the next day, so this case has been pending for almost four years—more than

       1,300 days—much longer than the one year contemplated by the rule. But not

       all delays count against the one-year period, and this appeal concerns only 146

       days: the time that passed between the trial court’s January 20, 2017 order

       certifying its suppression order for interlocutory appeal and the court’s June 15,

       2017 order granting the State’s Motion to Stay pending the appeal. The parties

       agree that if those days count against the State, the 4(C) period has run and

       Battering is entitled to discharge. Battering asserts that there was no stay in

       place during these 146 days, as required by our Supreme Court’s decision in

       Pelley, and that those days should therefore count against the State. The State

       argues that there was a stay in place all along, that its Motion to Stay and the




       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019      Page 9 of 19
       trial court’s order granting it were just formalities, and that the 146 days should

       not count against it.1


[15]   In Pelley, the defendant was charged with murdering four members of his

       family. The State sent a subpoena to a third party that had provided counseling

       to the Pelley family before the murders, and the third party moved to quash it.

       The trial court granted that motion but certified its order for interlocutory

       appeal. This Court accepted jurisdiction and ordered a stay of the trial-court

       proceedings. Ultimately, our Supreme Court reversed the trial court in part.

       See State v. Pelley, 828 N.E.2d 915 (Ind. 2005). The case was remanded to the

       trial court, and the defendant later filed a motion for discharge under Rule 4(C).

       He argued, among other things, that the delay caused by the interlocutory

       appeal was chargeable to the State. The trial court denied the defendant’s



       1
         Arguably, Battering’s claim under Pelley is not even properly before us. After the trial court denied that
       claim at the hearing on April 17, 2018, Battering asked the court to certify the issue for interlocutory appeal.
       The court denied that motion for certification on May 31, 2018. Then, on June 27, 2018, our Supreme Court
       issued its decision in State v. Larkin, 100 N.E.3d 700 (Ind. 2018), reh’g denied. There, the defendant had
       pursued an interlocutory appeal, and the Court held that the delay caused by that appeal was chargeable to
       the defendant for purposes of Rule 4(C). Id. at 705. Battering’s July 2018 motion for discharge—the one that
       led to this appeal—was based on Larkin. Specifically, Battering argued that Larkin stands for the proposition
       that “delay caused by a discretionary interlocutory appeal [is] chargeable to the party who pursued the
       interlocutory appeal,” regardless of whether the trial-court proceedings are stayed during the appeal.
       Appellant’s App. Vol. IV pp. 185-86. In other words, Battering took the position that Larkin overruled Pelley
       with regard to interlocutory appeals pursued by the State. The trial court rejected that argument and denied
       Battering’s motion for discharge. Battering then moved to have that order certified for interlocutory appeal,
       asserting that “[t]his matter involves a substantial question of pure law, i.e., does Larkin’s holding apply to
       interlocutory appeals pursued by the State.” Id. at 191. At the hearing on the motion, Battering argued that
       certification was appropriate because Larkin represented “a sea change in the law” and that whether Larkin
       applies in this case is a “profound issue[.]” Tr. pp. 105, 106. In his briefs to this Court, however, Battering
       has abandoned his claim under Larkin and returned to his claim under Pelley—the claim on which the trial
       court denied certification back in May 2018. That is, the issue the trial court certified for interlocutory appeal
       is not the issue Battering addresses in his briefs. We might be able to dispose of Battering’s appeal on that
       ground alone, see Curtis v. State, 948 N.E.2d 1143, 1147-48 (Ind. 2011), but the State has not asked us to do
       that, so we proceed to the merits of Battering’s claim under Pelley.

       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                                Page 10 of 19
       motion. Our Supreme Court affirmed, emphasizing the fact that the trial-court

       proceedings had been stayed pending the interlocutory appeal:


                When trial court proceedings have been stayed pending
                resolution of the State’s interlocutory appeal, the trial court loses
                jurisdiction to try the defendant and has no ability to speed the
                appellate process. As a practical matter, applying the Criminal
                Rule 4(C) one-year requirement to interlocutory appeals would
                render an appeal by the State impossible because it would in all
                likelihood trigger a mandatory discharge of the defendant.
                Accordingly, we conclude that Rule 4(C)’s one-year limitation
                does not include the time during which trial proceedings have
                been stayed pending interlocutory appeal.


       901 N.E.2d at 499-500. The Court then reiterated that “the time for an

       interlocutory appeal is excluded from Rule 4(C)’s limitation only when trial

       court proceedings have been stayed.” Id. at 500.2


[16]   We agree with the State that the trial court stayed the trial-court proceedings,

       for purposes of Pelley, as of January 20. That day, when the State indicated its

       intent to request certification of the suppression order for interlocutory appeal,

       it also said that it would “ask to stay the proceedings and to continue the jury

       trial” that was set to begin in a few days (January 24). The judge stated that he




       2
         Because there was a stay in place in Pelley, the Court was not actually faced with the issue of whether a stay
       is required in order to toll the 4(C) clock. As the Court noted, “The only question is whether Rule 4(C)
       excludes the time for the State’s interlocutory appeal from its one-year limitation.” Pelley, 901 N.E.2d at 498.
       Moreover, the two cases the Pelley Court relied on in answering that 4(C) question—Martin v. State, 245 Ind.
       224, 194 N.E.2d 721 (1963), and State ex rel. Cox v. Superior Court of Madison County, Div. III, 445 N.E.2d 1367
       (Ind. 1983)—made no mention at all of there being a stay in the trial court. In any event, we conclude below
       that the trial court did impose a stay when it authorized the first interlocutory appeal in this case.

       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                              Page 11 of 19
would be “inclined to grant” a motion for certification and that “I would be

vacating the trial if I’m granting that.” The State then filed a combined motion

for certification and motion to “continue” the jury trial, asserting that a

continuance was “necessary” “in order to allow time for the Court of Appeals

to review this matter[.]” Back on the record, the judge said that he was going to

certify the suppression order and “continue” the jury trial, explaining, “I don’t

know how to certify this issue for interlocutory appeal and still have a trial, but

I sort of think that if I’ve got to do the one, I have to do the other. They seem

to go hand in hand.” The judge went on, “If I’m going to grant the

interlocutory appeal, the trial has to be continued, and so I have to grant the

State’s motion for that.” By the end of the hearing on January 20, one thing

was absolutely clear to everyone involved: no trial would be taking place until

the State’s interlocutory appeal was complete. Cf. State v. Larkin, 100 N.E.3d

700, 705 (Ind. 2018) (“[I]nterlocutory appeals toll the 4(C) period despite who

filed because the case cannot practically move forward[.]”), reh’g denied.

Notably, when the trial court made that clear, Battering did not object on the

ground that the State had not requested a stay or on the ground that the court

had not imposed a stay. And while the State and the trial court used the word

“continue” instead of the word “stay,” the trial was not merely pushed back

(i.e., “continued”) to a different date. It was put off for as long as the appeal

would take. That is a stay, regardless of the label used. See Black’s Law

Dictionary 1639 (10th ed. 2014) (defining “stay” as “1. The postponement or




Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019      Page 12 of 19
       halting of a proceeding, judgment, or the like. 2. An order to suspend all or part

       of a judicial proceeding or a judgment resulting from that proceeding.”).3


[17]   Battering also argues that there could not have been a stay in place between

       January 20 and June 15 because there was activity in the trial court during that

       period. But the only substantive actions the trial court took during that period

       were holding a hearing on three motions Battering filed after January 20—the

       January 26 Motion to Exclude Certain Discovery at Trial, the February 6

       Motion to Reduce Bond, and the February 15 Motion to Set Jury Trial—and

       ruling on those motions in part. Having filed those motions, Battering should

       not now be heard to complain about the fact that the trial court took action on

       them. Moreover, in a recent 4(C) case, our Supreme Court rejected the

       assertion that trial-court action during an interlocutory appeal amounted to a

       “constructive lift” of a stay. Larkin, 100 N.E.3d at 704.4, 5




       3
        In his reply brief, Battering cites Indiana Appellate Rule 14(H), which provides, in part, “An interlocutory
       appeal shall not stay proceedings in the trial court unless the trial court or a judge of the Court of Appeals so
       orders.” Because we hold that the trial court did order a stay in this case, this provision does not help
       Battering’s cause.
       4
         In light of Larkin, it seems to us that Pelley should not be read to require an unqualified stay in the sense that
       all proceedings in the trial court must come to a complete halt. If getting to trial quickly is a priority for a
       defendant—and the filing of a 4(C) motion certainly suggests that it is—then the defendant would benefit
       from the trial court being able to deal with other pretrial matters while the interlocutory appeal is pending.
       Otherwise, any such matters will have to be dealt with after the interlocutory appeal is complete, thereby
       further delaying the trial. Notably, in the context of appeals from final judgments, our courts have
       recognized that trial courts retain jurisdiction to perform certain tasks. See, e.g., Jernigan v. State, 894 N.E.2d
       1044, 1046 (Ind. Ct. App. 2008).
       5
         In addition to his argument about the trial-court activity between January 20 and June 15, Battering notes
       that the State filed a Motion for Discovery on June 27, 2017, twelve days after the trial court granted the
       State’s Motion to Stay. However, he does not dispute that there was a stay in place after June 15. To the
       contrary, he specifically acknowledges that the 224-day period between June 15, 2017, and January 24, 2018

       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                                  Page 13 of 19
[18]   Finally, Battering suggests that the State’s filing of a Motion to Stay on June 13

       (and the trial court’s grant of that motion two days later) proves that there was

       no stay in place before then. At the end of the June 1, 2017 hearing, the State

       noted that it would be filing a formal motion to stay only because Battering was

       “so adamant about wanting a piece of paper saying things are stayed[.]” Then,

       at the hearing on April 17, 2018, the State reiterated that the only reason it filed

       the Motion to Stay was that Battering “kept harping on it[.]” For all the

       reasons discussed above, and having closely reviewed the entire record, we are

       persuaded by the State’s characterization of its motion as a mere formality.


[19]   The trial court correctly ruled that the delay between January 20 and June 15,

       2017, is not chargeable to the State.6


[20]   Affirmed.


       Altice, J., concurs.


       Baker, J., dissents with separate opinion.




       (when our opinion in the first appeal was certified) “is excluded from the Rule 4(C) period.” Appellant’s Br.
       p. 20.
       6
         In his opening brief on appeal, Battering also suggests that, regardless of the time that passed during the
       original interlocutory appeal, the 4(C) period has expired in light of time that has passed since that appeal,
       specifically, the seven months between the certification of our opinion (January 24, 2018) and the trial date
       that was then set (August 29, 2018). In response, the State notes that Battering’s motion for discharge, the
       trial court’s order denying the motion, Battering’s request for certification, and the trial court’s certification
       order all focused on time that passed during the original interlocutory appeal, without discussing any time
       that has passed since that appeal. The State maintains that Battering is therefore barred from raising the
       latter issue in this appeal. In his reply brief, Battering abandons the claim.

       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                                  Page 14 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Brandon Battering,                                         Court of Appeals Case No.
                                                                  18A-CR-2309
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, dissenting.


[21]   While I understand the emotional appeal of the result reached by the majority,

       and I wholeheartedly agree that its analysis is where our system should be, I do

       not believe that it is where we are, based on our Supreme Court’s precedent, the

       Rules of Appellate Procedure, and the record in this case. Therefore, I

       respectfully dissent.


[22]   As noted by the majority, in Pelley v. State, our Supreme Court found as follows:


               . . . When trial court proceedings have been stayed pending resolution of
               the State’s interlocutory appeal, the trial court loses jurisdiction to
               try the defendant and has no ability to speed the appellate
               process. As a practical matter, applying the Criminal Rule 4(C)

       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                   Page 15 of 19
               one-year requirement to interlocutory appeals would render an
               appeal by the State impossible because it would in all likelihood
               trigger a mandatory discharge of the defendant. Accordingly, we
               conclude that Rule 4(C)’s one-year limitation does not include
               the time during which trial proceedings have been stayed pending
               interlocutory appeal.


               We note that the time for an interlocutory appeal is excluded
               from Rule 4(C)’s limitation only when the trial court proceedings have
               been stayed. . . .


       901 N.E.2d 494, 499-500 (Ind. 2009) (emphases added). Recently, our

       Supreme Court reached the same conclusion, finding that when the trial court

       proceedings were stayed after the defendant filed a motion for interlocutory

       appeal, the 4(C) period was tolled. State v. Larkin, 100 N.E.3d 700, 705-06 (Ind.

       2018) (holding that where proceedings have been stayed, “interlocutory appeals

       toll the 4(C) period despite who filed because the case cannot practically move

       forward”). A stay of proceedings is not automatic upon the filing or acceptance

       of an interlocutory appeal. See Ind. Appellate Rule 14(H) (“[a]n interlocutory

       appeal shall not stay proceedings in the trial court unless the trial court or a judge

       of the Court of Appeals so orders”) (emphases added).


[23]   The State concedes—as it must—that (1) Pelley’s holding means that the Rule

       4(C) period is tolled during an interlocutory appeal only when the trial court

       proceedings have been stayed; and (2) a stay is not automatic pursuant to

       Appellate Rule 14(H). Appellee’s Br. p. 23. The State’s position is that we

       should not focus on form over substance, insisting that the fact that the


       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019        Page 16 of 19
       “talismanic” word “stay” was not invoked does not mean that a stay was not,

       in effect, in place. Id.


[24]   In the State’s January 20, 2017, motion to certify the suppression order for

       interlocutory appeal, it asked that the looming trial date be “continued,” rather

       than stayed. Appellant’s App. Vol. III p. 103-04. And in its order granting the

       State’s motion, the trial court vacated the trial date but did not stay the

       proceedings. Id. at 107. When the State filed a motion asking this Court to

       accept jurisdiction of the interlocutory appeal, it did not ask that a stay be

       ordered; nor, in accepting jurisdiction on March 17, 2017, did this Court issue a

       stay. Id. at 154-58, 164-65. This course of events, in and of itself, would not

       lead us to conclude, necessarily, that no stay was issued. If it was merely an

       issue of semantics, it would elevate form over substance to conclude that word

       choice dictated the outcome here.7


[25]   But the parties’ and the trial court’s course of action following these orders

       indicates that, in fact, they did not believe that the proceedings had been stayed.

       On February 22, 2017, the trial court scheduled a hearing on Battering’s motion

       to exclude certain discovery at trial; the State did not object to the hearing.

       Subsequently, Battering filed a motion to re-set the jury trial. On June 1, 2017,

       the trial court held a hearing on all pending motions. At that hearing, Battering




       7
         I do, however, tend to agree with Battering that “[a] motion to continue has the opposite effect of a motion
       to stay. A motion to continue requests that proceedings continue but be set for another day. A motion to
       stay, on the other hand, seeks to stop proceedings.” Reply Br. p. 5 (emphases original).

       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                              Page 17 of 19
       orally moved for discharge pursuant to Rule 4(C). The State engaged in legal

       argument at this hearing but did not object on the basis that the proceedings had

       been stayed. The trial court scheduled another hearing to consider Battering’s

       motion for discharge. Before that hearing occurred, the State filed a motion to

       stay the proceedings on June 13, 2017; the trial court granted the motion two

       days later. Just two weeks later, on June 27, 2017, the State filed a motion for

       discovery, which the trial court granted, until Battering pointed out that, at last,

       the proceedings had been stayed, at which point the trial court rescinded its

       order.


[26]   It is apparent that neither Battering, nor the State, nor the trial court believed

       that the proceedings were stayed upon the trial court’s certification of the

       suppression order for interlocutory appeal, given all of the litigation that

       occurred following that date. And as noted above, neither the trial court’s

       certification of an order for interlocutory appeal nor this Court’s acceptance of

       jurisdiction over that appeal mean that a stay is automatically granted. It must

       be requested and ordered. And here, neither the words of the relevant orders

       nor the behavior of the parties or the trial court show that a stay was put in

       place until June—long past the Rule 4(C) one-year cutoff.8




       8
         Even if it were argued that when this Court accepted jurisdiction of the interlocutory appeal, it necessarily
       removed jurisdiction from the trial court, the clock would already have run. This Court did not accept
       jurisdiction until March 17, 2017—almost two months too late.

       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019                               Page 18 of 19
[27]   Because the proceedings were not stayed until months after the interlocutory

       appeal was filed and accepted, the tolling rule announced in Pelley and followed

       in Larkin does not apply. It necessarily follows that the Rule 4(C) clock did not

       stop ticking. Consequently, I believe that the trial court should have granted

       Battering’s motion for discharge. Therefore, I respectfully dissent.




       Court of Appeals of Indiana | Opinion 18A-CR-2309 | October 11, 2019    Page 19 of 19
