                                                                     FILED
                                                                Sep 01 2017, 9:50 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Stephen Gerald Gray                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Ian McLean
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joseph K. Hoskins and                                      September 1, 2017
Daniel McLayea,                                            Court of Appeals Case No.
Appellants-Defendants,                                     49A02-1612-CR-2860
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Jose D. Salinas,
State of Indiana,                                          Judge
                                                           Trial Court Cause No.
Appellee-Plaintiff
                                                           49G14-1506-F6-21151
                                                           The Honorable Shatrese M.
                                                           Flowers, Judge
                                                           Trial Court Cause No.
                                                           49G20-1506-F5-22744



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017             Page 1 of 11
[1]   Joseph Hoskins and Daniel McLayea appeal the trial courts’ denials of their

      respective motions for discharge pursuant to Indiana Criminal Rule 4. 1 Finding

      that a trial date was set for both appellants outside the one-year limit set by Rule

      4(C), we reverse and remand.


                                                       Facts
                                                       Hoskins

[2]   On June 17, 2015, the State charged Hoskins with Level 6 felony dealing in

      marijuana and Class A misdemeanor possession of marijuana. An initial

      hearing was held and Hoskins posted bond the same day. The first trial setting

      for Hoskins was scheduled for February 8, 2016. Between June 17, 2015, and

      February 8, 2016, the parties were engaged in discovery. Hoskins delayed one

      pretrial conference from August 18 to September 3, 2015. On February 3, 2016,

      Hoskins moved to continue his trial. The trial court granted the motion and

      reset the trial for April 4, 2016.


[3]   On March 30, 2016, the State moved to continue the trial; the trial court

      granted the motion and set a trial date of July 11, 2016. On July 6, 2016, the

      State again moved to continue the trial. Hoskins objected and the trial court

      overruled the objection, resetting Hoskins’s trial to September 26, 2016.




      1
       While the appellants’ cases below were dealt with separately by the two trial courts, they have been
      consolidated for this appeal.

      Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017                     Page 2 of 11
[4]   On September 14, 2016, Hoskins moved for discharge under Indiana Criminal

      Rule 4(C). He noted that the time interval from June 17, 2015, to September

      26, 2016, is a total period of 467 days; he admits that 72 days of delay are

      chargeable to him but argues that the remaining balance of 395 days is charged

      to the State. Following a hearing, the trial court denied the motion for

      discharge. Hoskins now brings this interlocutory appeal.


                                                     McLayea

[5]   On June 30, 2015, the State charged McLayea with Level 5 felony dealing in

      marijuana with a prior conviction and Level 6 felony possession of marijuana

      with a prior conviction. On July 1, 2015, an initial hearing was held and

      McLayea posted bond; the trial court set a trial date of October 21, 2015.

      Counsel entered an appearance for McLayea on July 6, 2015.


[6]   On October 15, 2015, the State moved to continue the trial, and the trial court

      rescheduled the trial to February 10, 2016. On February 1, 2016, McLayea

      moved to continue the trial; the trial court granted the motion and reset the trial

      for June 20, 2016. On June 15, 2016, the State moved to continue the trial; the

      trial court granted the request and rescheduled the trial for October 3, 2016.


[7]   On September 28, 2016, the State moved to continue the trial. The deputy

      prosecutor explained that while preparing for trial, he had reviewed telephone

      calls from the jail indicating that “evidence of highly probative value” was on

      cell phones discovered by law enforcement. McLayea Tr. p. 2-4. The deputy

      prosecutor explained that the forensic services unit could accommodate the


      Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017   Page 3 of 11
      October 3, 2016, trial date by providing their analysis of the phones on October

      2. But the State noted that it would provide no time for McLayea to evaluate

      the new evidence and, if McLayea moved to exclude it at trial, his remedy

      would be a continuance. McLayea objected to a continuance of the trial but

      then stated that, if the evidence were admitted at trial, he “would need some

      time to examine the warrant that they’re going to get to search these phones,

      and there maybe [sic] some suppression issues . . . so I would just hope that the

      court would give me enough time to look at the warrant [and] have meaningful

      consultation with my client.” Id. at 5. The trial court granted the State’s

      motion to continue, asking McLayea if he wished to have a trial on October 31

      or November 14, 2016; McLayea replied that he was not available on October

      31, so the trial was reset for November 14, 2016.


[8]   On November 9, 2016, McLayea moved for discharge under Indiana Criminal

      Rule 4(C). Following a hearing, the trial court denied McLayea’s motion.

      McLayea now brings this interlocutory appeal.


                                    Discussion and Decision
[9]   Indiana Criminal Rule 4(C) provides, in pertinent part, as follows:

              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 . . . .



      Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017   Page 4 of 11
       In reviewing a trial court’s ruling on a motion for discharge, we apply a de novo

       standard of review to issues of law and to the application of law to undisputed

       facts. Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013). We review resolution

       of disputed factual issues for clear error, which is that which leaves us with a

       definite and firm conviction that a mistake has been made. Id. at 1039-40.


                                                  I. Hoskins
[10]   Turning first to Hoskins, the timeline is as follows:


           • June 17, 2015: charges were filed.
           • July-October 2015: discovery ongoing, pretrial conferences held.
           • August 18, 2015: Hoskins moves to continue a pretrial conference. It is
             reset for September 3, 2015. This delay of 16 days is undisputedly
             charged to Hoskins.
           • November 12, 2015: trial court sets a trial date of February 8, 2016.
           • February 3, 2016: Hoskins moves to continue the trial. The trial court
             grants the motion and reschedules the trial to April 4, 2016. This delay
             of 56 days is undisputedly charged to Hoskins.
           • March 30, 2016: State moves to continue the trial. The trial court grants
             the motion and reschedules the trial to July 11, 2016. This is a delay of
             98 days.
           • July 6, 2016: State again moves to continue the trial; Hoskins objected.
             Over Hoskins’s objection, the trial court grants the motion and
             reschedules the trial to September 26, 2016. This is a delay of 77 days.

       In sum, a total of 467 days elapsed between the filing of charges and the

       September 26, 2016, trial date. It is undisputed that 72 of those days are

       charged to Hoskins; that leaves a remaining balance of 395 days, which exceeds

       the 365-day limit put in place by Rule 4(C). We must determine, therefore,

       whether any of the remaining 395 days are chargeable to Hoskins.

       Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017   Page 5 of 11
[11]   The State argues that the clock does not begin running until July 23, 2015,

       when Hoskins retained counsel. We disagree. The cases to which the State

       cites in support of this assertion involve situations in which defendants caused

       delays by making late requests for changes of counsel or waiting for

       unreasonable amounts of time to retain counsel. See Andrews v. State, 441

       N.E.2d 194 (Ind. 1982) (defendant obtained new counsel well into litigation

       after trial date had been set); Little v. State, 275 Ind. 78, 415 N.E.2d 44 (1981)

       (defendant discharged public defender to hire private counsel after trial dates

       had been set and case had been ongoing for some time); State ex rel. Sheppard v.

       Circuit Court of Clark County, 274 Ind. 602, 413 N.E.2d 258 (1980) (same); Eguia

       v. State, 468 N.E.2d 559 (Ind. Ct. App. 1984) (defendant failed to request public

       defender or obtain counsel for over five months after the initial hearing). In this

       case, Hoskins did not change trial counsel, wait an unreasonable amount of

       time to retain counsel, or in any way delay the setting of the trial with respect to

       the retention of counsel. Under these circumstances, we decline to toll the

       running of the 365-day clock until Hoskins retained counsel; as a result, the

       clock began ticking on June 17, 2015—the day on which the State filed the

       charges.


[12]   The State next argues that the entire delay between August 18, 2015, and the

       first trial date setting of February 8, 2016, should be charged to Hoskins.

       Again, we disagree. While the State frames Hoskins’s August 2015 motion as

       one to continue the trial, in fact, no trial date had even been set at that point.

       Instead, he merely moved to continue a pretrial status conference, and as noted


       Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017   Page 6 of 11
       above, is charged with the sixteen-day delay as a result of that motion. There is

       simply no reason to charge Hoskins with more of a delay than that for this

       period of time.


[13]   Next, we must consider the 98-day delay from April 4 to July 11, 2016, and the

       77-day delay from July 11 to September 26, 2016—a total delay of 175 days.

       Both of these continuances were requested by the State, and Hoskins objected

       to the second continuance, which resulted in a trial date set outside the 365-day

       limit. On appeal, the State argues that Hoskins should be charged with the

       delay.2 Its argument amounts to the following:


           • When Hoskins was arrested on June 16, 2015, law enforcement seized
             three cell phones.
           • The State did not investigate the content of the cell phones.
           • Therefore, on February 3, 2016, Hoskins requested that the cell phones
             be returned because the State had yet to request and execute a search
             warrant, so the phones had no evidentiary value.
           • Because of Hoskins’s request, the State decided to search the cell phones.
           • As a result of the search of the cell phones and interpretation of the
             forensic data, the State had to request that the trial be continued.

       In other words, the State argues that the delay resulted because Hoskins

       requested the return of his property, which caused the State to finally search the




       2
         Below, the State contended that because Hoskins did not object to the continuance from April 4 to July 11,
       2016, he is charged with that 98-day delay. The State has abandoned this argument on appeal. We agree
       with Hoskins that he did not waive his rights under Criminal Rule 4 because he failed to object to a July 11
       trial date, as that date was still well within the 365-day time limit. His objection was not “ripe” until the trial
       court set a trial date beyond the one-year period, and when that occurred, he did object. See Cook v. State, 810
       N.E.2d 1064, 1068 n.3 (Ind. 2004) (observing that “a defendant’s agreement to a continuance sought by the
       State is not chargeable to the defendant and does not extend the time period of Crim. R. 4(C)”).

       Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017                          Page 7 of 11
       cell phones. The State directs our attention to well-settled authority that

       “delays caused by action taken by the defendant are chargeable to the

       defendant,” Cook, 810 N.E.2d at 1067, contending that this delay was caused by

       Hoskins’s request for the return of his property.


[14]   Initially, we note that the State has waived this argument as it raises it for the

       first time on appeal. E.g., Harbert v. State, 51 N.E.3d 267, 279 (Ind. Ct. App.

       2016), trans. denied. Waiver notwithstanding, the State had these cell phones in

       its possession from the time of Hoskins’s arrest in June 2015 until Hoskins

       requested their return in February 2016. That the State waited eight months to

       search the phones is certainly not Hoskins’s fault, and the delay caused by the

       State’s extraordinarily belated search of evidence is in no way chargeable to

       Hoskins. We agree with Hoskins that the “State made a strategic decision to

       delay the trial and seek a search warrant to conduct a search that could have

       been conducted months earlier.” Hoskins Reply Br. p. 7. Consequently, the

       175-day delay between April 4 and September 26, 2016, is not chargeable to

       Hoskins and is included in the Rule 4(C) one-year clock.


[15]   From June 17, 2015, and September 26, 2016, a total of 467 days passed. Of

       those days, 72 are charged to Hoskins, leaving a remaining balance of 395 days.

       This exceeds Rule 4(C)’s one-year limit. Consequently, Hoskins’s motion for

       discharge should have been granted, and we reverse and remand.


                                                II. McLayea
[16]   Turning next to McLayea, the underlying timeline of his case is as follows:

       Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017   Page 8 of 11
           • June 29, 2015: the State filed criminal charges against McLayea.
           • July 1, 2015: trial court held an initial hearing and set a trial date of
             October 21, 2015.
           • October 15, 2015: the State moved to continue the trial. The trial court
             granted the motion and the trial was reset for February 10, 2016. This
             resulted in a delay of 112 days.
           • February 1, 2016: McLayea moved to continue the trial. The trial court
             granted the motion and the trial was reset for June 20, 2016. This
             resulted in a delay of 131 days and is chargeable to McLayea.3
           • June 15, 2016: the State moved to continue the trial. The trial court
             granted the motion and the trial was reset for October 3, 2016. This
             resulted in a delay of 105 days.
           • September 28, 2016: the State moved to continue the trial. McLayea
             objected to the continuance. The trial court granted the State’s motion,
             and the trial was reset for November 14, 2016. This resulted in a delay of
             42 days.

       In sum, a total of 504 days passed between June 29, 2015, when charges were

       filed against McLayea, and November 14, 2016, when his final trial date was

       set. It is undisputed that 131 days are charged to McLayea, leaving a balance of

       373 days.


[17]   As with Hoskins, the State argues that the seven-day period during which

       McLayea selected counsel—July 1 through July 6, 2015—is charged to




       3
         The State argues that we should calculate the delay from the date on which McLayea filed the motion
       rather than from the originally-scheduled trial date. It cites to Mefford v. State, in which this Court held that
       “when a defendant seeks a continuance, the time between his motion for a continuance and the new trial date
       is excluded from the one-year time limit.” 51 N.E.3d 327, 333 (Ind. Ct. App. 2016). In support of this
       proposition, the Mefford Court cited to Todisco v. State, but Todisco does not, in fact, support the proposition.
       965 N.E.2d 753, 756 (Ind. Ct. App. 2012). Instead, Todisco holds that a defendant is charged with the delay
       that is caused by his act, which is measured from trial date to trial date. Id. We believe the Todisco approach
       to be more consistent with Rule 4(C) and decline the State’s invitation to measure the delay in this case from
       the date on which McLayea filed the motion to continue.

       Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017                        Page 9 of 11
       McLayea. For the reasons stated above, we disagree with this argument and

       decline to do so.


[18]   The State focuses its remaining argument on its final request for a continuance,

       which resulted in a delay of forty-two days. At the hearing, the deputy

       prosecutor explained that law enforcement had seized three cell phones at the

       time of McLayea’s arrest, but the State had not yet searched the phones:


               Generally, so long as my case isn’t really crappy, I don’t get our
               phones analyzed, because our forensic unit is pretty overcrowded
               from homicide, rape cases, and things like that.


                                                         ***


               Unless I know some things [sic] going to be on them. . . . I was
               reviewing some jail calls last night, and this morning. On several
               of those jail calls there’s information that the Defendant relays to,
               who he’s talking to, that would indicate there be [sic] evidence of
               highly probative value on those cell phones.


                                                         ***


               So, I am seeking a search warrant for that this afternoon. I’ve
               contacted our forensic unit. . . .


       McLayea Tr. p. 2-3. This case is similar to Hoskins’s in that the State waited

       until the last minute to listen to jail calls and analyze the cell phones that had

       been in its possession for months. As with Hoskins, in our view it would be

       unfair to charge McLayea with the delay in the trial that resulted from the way

       in which the State conducted its case.
       Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017   Page 10 of 11
[19]   The State points out that when the trial court granted the State’s motion to

       continue the previously-scheduled trial date of October 3, it offered October 31,

       2016, as its earliest possible setting. McLayea’s attorney was unavailable for an

       October 31 hearing, so the trial court set it for November 14, 2016. According

       to the State, McLayea should be charged with the days between October 31 and

       November 14. We disagree. McLayea clearly objected to any continuance

       whatsoever, nor did he “acquiesce[]” to a November trial date, as argued by the

       State. Appellee’s Br. p. 22. The State should have requested a trial date within

       the one-year rule when the trial court chose to set the trial outside that period.

       McLayea had “no obligation to remind the court of the State’s duty [to bring a

       defendant to trial within one year], nor is he required to take any affirmative

       action to see that he is brought to trial within the period.” Leek v. State, 878

       N.E.2d 276, 277 (Ind. Ct. App. 2007). McLayea objected to a new trial date;

       the trial court overruled that objection; and the burden was with the State to

       find a new trial date within the requisite one-year period. Under these

       circumstances, McLayea’s motion for discharge should have been granted. We

       reverse and remand.


[20]   The judgment of the trial court is reversed and remanded with respect to both

       appellants.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1612-CR-2860 | September 1, 2017   Page 11 of 11
