MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Nov 04 2016, 8:37 am

regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joseph W. Eddingfield                                   Gregory F. Zoeller
Wabash, Indiana                                         Attorney General of Indiana

                                                        Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA
Bryan N. Myers,                                         November 4, 2016
                                                        Court of Appeals Case No.
Appellant-Defendant,                                    17A04-1510-CR-1688
         v.                                             Appeal from the DeKalb Superior
                                                        Court
                                                        The Honorable Monte L. Brown,
State of Indiana,
                                                        Judge
Appellee-Plaintiff                                      Trial Court Cause Nos.
                                                        17D02-1406-FA-16, -17




Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016    Page 1 of 14
                                           Case Summary
[4]   Earlier this year, we issued a memorandum decision in Myers v. State, No.

      17A04-1510-CR-1688 (Ind. Ct. App. Apr. 26, 2016). In that interlocutory

      appeal, Bryan N. Myers challenged the trial court’s denial of his motion for

      discharge of his four class A felony drug dealing charges pursuant to Rule 4(C)

      of the Indiana Rules of Criminal Procedure. We held that the trial court erred

      in summarily denying his motion where both he and the State had requested a

      hearing. We reversed and remanded for an evidentiary hearing on Myers’s

      motion for discharge. The trial court conducted the hearing and issued an order

      with findings of fact and conclusions thereon, again denying Myers’s motion

      for discharge. Having retained jurisdiction, we now conduct our review with

      the aid of the hearing transcript, exhibits, and amended briefs. Concluding that

      the trial court did not err in denying Myers’s motion for discharge, we affirm.


                              Facts and Procedural History
[5]   In May 2014, Myers was charged in Wabash County with class D felony

      possession of methamphetamine (“Wabash County Cause”). He was released

      on bond and was residing at his Pike Street home in Wabash.


[6]   On June 4, 2014, the DeKalb County prosecutor charged Myers with four class

      A felony drug dealing offenses in two separate two-count causes, 17D02-1406-




      Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 2 of 14
      FA-16 (“Cause 16”) and 17D02-1406-FA-17 (“Cause 17”). 1 The following day,

      the DeKalb Superior Court made a probable cause finding and directed that

      arrest warrants be issued to the DeKalb County sheriff. At 9:00 a.m. on Friday,

      June 6, 2014, the arrest warrants were issued under both cause numbers. That

      same day, the warrants were faxed to the Wabash County Sheriff’s Department

      and stamped received at 1:01 p.m. See Defendant’s Ex. A (arrest warrants on

      Causes 16 and 17, identifying Myers and his Wabash address, each including

      file stamp indicating date and time of receipt by DeKalb County sheriff and

      date of fax receipt by Wabash County sheriff). That same afternoon, with the

      DeKalb County warrants in hand, Wabash City Police Officer Kevin Evenson

      detained and arrested Myers shortly after Myers left his Wabash home. After

      presenting the warrants to Myers, Officer Evenson signed and dated them as

      having been served on Myers on June 6, 2014. Id. The date of return of the

      arrest warrants was left blank. Id.


[7]   Myers was jailed in Wabash County over the weekend. On Monday, June 9,

      2014, he appeared in court in Wabash County, where his bond was revoked on

      the Wabash County Cause and he was charged with a new class C felony

      possession offense. That same day, Auburn City Police Officer Cory

      Heffelfinger, a drug interdiction officer, went to the Wabash County Jail hoping




      1
        In both causes, the State charged Myers with class A felony dealing in methamphetamine and class A
      felony dealing in a controlled substance (heroin). As such, we address them together unless otherwise
      indicated.

      Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016       Page 3 of 14
       to interview Myers. Auburn is in DeKalb County. Myers refused the

       interview, and Officer Heffelfinger returned to DeKalb County.


[8]    Myers remained incarcerated in Wabash County for the ensuing eleven

       months. Sometime around May 15, 2015, DeKalb County Prosecutor

       ClaraMary Winebrenner learned from conversations with law enforcement

       personnel (including Officer Heffelfinger) that “Myers was incarcerated or

       arrested on our cases.” State’s Ex. 3 (Winebrenner’s affidavit). On May 19,

       2015, Prosecutor Winebrenner filed a motion for an order to transport Myers

       from Wabash County to DeKalb County, which the trial court granted on May

       20, 2015.


[9]    On June 8, 2015, Myers was transported from the Wabash County Jail to

       DeKalb County for an initial hearing on Causes 16 and 17. On June 26, 2015,

       Myers filed a Rule 4(C) motion for discharge. On July 27, 2015, the State filed

       its objection to Myers’s discharge motion, and both parties requested that the

       motion be set for hearing. The trial court set dates for pretrial conferences and

       for a February 2016 trial.


[10]   The trial court did not hold an evidentiary hearing on Myers’s motion for

       discharge. On August 7, 2015, the trial court issued an order summarily

       denying Myers’s motion. Thereafter, Myers sought and received certification of

       the order for interlocutory appeal. The motions panel of this Court granted his

       petition for interlocutory appeal. We reversed and remanded, finding that the

       trial court should have held a hearing on Myers’s motion for discharge.


       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 4 of 14
[11]   On May 23, 2016, the trial court conducted an evidentiary hearing on Myers’s

       motion. Shortly thereafter, the court issued an order with findings of fact and

       conclusions thereon, denying Myers’s motion. Having retained jurisdiction, we

       now address the merits of Myers’s appeal.


                                   Discussion and Decision
[12]   Myers asserts that the trial court erred in denying his motion for discharge

       pursuant to Criminal Rule 4(C), which states,

               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 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.


[13]   In reviewing a challenge to a trial court’s ruling on a Criminal Rule 4 motion

       for discharge, the standard of review depends upon whether the case involves

       application of the law to undisputed facts or the trial court’s issuance of findings

       resolving disputed facts. Austin v. State, 997 N.E.2d 1027, 1039-40 (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 5 of 14
       We review the former cases de novo and the latter cases using a clearly

       erroneous standard. Id. In reviewing for clear error, we neither reweigh

       evidence nor determine witness credibility. Id. at 1040. Rather, we consider

       only the probative evidence and reasonable inferences supporting the judgment

       and reverse only on a showing of clear error, which is error that “leaves us with

       a definite and firm conviction that a mistake has been made.” Id. (citation

       omitted).


[14]   The purpose of Criminal Rule 4(C) is to promote early trials, not to discharge

       defendants. Fuller v. State, 995 N.E.2d 661, 665 (Ind. Ct. App. 2013), trans.

       denied (2014). Subject to the exceptions listed in Rule 4(C), the State has an

       affirmative duty to bring the defendant to trial within one year of being charged

       or arrested. Wood v. State, 999 N.E.2d 1054, 1060 (Ind. Ct. App. 2013), trans.

       denied (2014), cert. denied. The defendant is neither obligated to remind the

       court of the State’s duty nor required to take affirmative steps to ensure that he

       is brought to trial within the statutory time period. Id. At the same time,

       Criminal Rule 4 is not intended to be a mechanism for providing defendants a

       technical means to escape prosecution. Austin, 997 N.E.2d at 1037. When a

       defendant moves for discharge, he bears the burden of showing that he has not

       been timely brought to trial and that he is not responsible for the delay. Wood,

       999 N.E.2d at 1060. Where the record is silent concerning the reason for delay,

       such delay is not attributable to the defendant. Caldwell v. State, 922 N.E.2d

       1286, 1290 (Ind. Ct. App. 2010), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 6 of 14
[15]   Here, the trial court’s findings of fact and conclusions thereon include the

       following:

                                              FINDINGS OF FACT


               ….

               11. That the Court was not provided with any evidence that the
               DeKalb County Sheriff’s Department or the DeKalb County
               Prosecutor’s Office was notified by any Wabash County Police
               Agency that the Defendant had been arrested either on the
               DeKalb County warrants or on a new Wabash County charge.

               12. That on June 9, 2014, Officer Cory Heffelfinger an officer
               with the Auburn Police Department, a city in DeKalb County,
               Indiana, attempted to interview the Defendant at the Wabash
               County Jail, but Defendant refused to speak with Officer
               Heffelfinger. No evidence was presented to explain how Officer
               Heffelfinger knew the Defendant was in the Wabash County Jail.

               13. That Officer Heffelfinger did not arrest or otherwise
               transport the Defendant to DeKalb County nor did he notify the
               DeKalb County Sheriff’s Department of the fact that Bryan
               Myers was being held in the Wabash County Jail or his arrest on
               new charges in Wabash County or his arrest on the DeKalb
               County warrants.

               14. That between June 9, 2014, and May 15, 2015, it does not
               appear that any action was taken with regard to either the
               foregoing DeKalb County cases nor does it appear that any
               information was received by the DeKalb County Sheriff’s
               Department or the DeKalb County Prosecuting Attorney’s Office
               about the Defendant in association with said cases.

               15. That on or about May 15, 2015, in a conversation with
               DeKalb County Chief Probation Officer, Katherine Cullum, and

       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 7 of 14
        Officer Cory Heffelfinger, the DeKalb County Prosecuting
        Attorney learned that the Defendant might be involved in other
        drug related activities in the DeKalb County, Indiana, area and
        that he may be in the Wabash County Jail.

        16. That pursuant to [DeKalb County Prosecutor]
        Winebrenner’s Affidavit admitted as State’s exhibit 3, a note
        placed in the Defendant’s files memorializing said conversation,
        stated that the conversation with Officer Heffelfinger occurred on
        May 15, 2015.

        17. That in response to the information received by Prosecutor
        Winebrenner, she reviewed the Defendant’s files, observed that
        the Defendant had not had his initial hearing on the DeKalb
        County charges, and on May 19, 2015, filed her Motion for a
        Transportation Order in the pending DeKalb County cases.

        ….

        19. That Prosecutor Winebrenner’s Affidavit states that no
        formal notice was ever given to the prosecutor that the Defendant
        was incarcerated or that he had been arrested on the charges filed
        in DeKalb County, rather, said information was generally
        learned from conversations with Probation Officer Cullum and
        Officer Heffelfinger on or about May 15, 2015.


                                   CONCLUSIONS OF LAW


        ….

        7. That following the Defendant’s arrest on June 6, 2014,
        Wabash City Police Officer Kevin Evenson then partially
        completed the Sheriff’s Return at the bottom of the arrest
        warrants issued by the Clerk of DeKalb County.

        8. That no evidence was presented that Officer Evenson ever

Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 8 of 14
        provided a copy of said returns either to the DeKalb County
        Sheriff’s Department, the DeKalb County Prosecuting Attorney,
        DeKalb Superior Court II, or the Clerk thereof.

        9. That prior to May 15, 2015, Officer Cory Heffelfinger never
        informed the DeKalb County Sheriff’s Department, the DeKalb
        County Prosecuting Attorney, DeKalb Superior Court II, or the
        Clerk thereof, of the Defendant’s incarceration in Wabash
        County, Indiana.

        10. That subsequent to June 6, 2014, the first occasion the
        DeKalb County Prosecuting Attorney learned the Defendant
        might be in jail in Wabash County, Indiana, was May 15, 2015,
        when that information was relayed to her by Officer Cory
        Heffelfinger.

        11. That after receiving information from Officer Cory
        Heffelfinger on May 15, 2015, that the Defendant might be in jail
        in Wabash County, Indiana, on May 19, 2015, 4 days later,
        Prosecutor Winebrenner filed her Motion For An Order Of
        Transportation from Wabash County to DeKalb County for the
        purpose of conducting an initial hearing on the pending DeKalb
        County charges.

        12. That following the Court’s Order of June 5, 2014, where the
        Court found probable cause for the arrest of the Defendant in
        [Causes 16 and 17], the Court first learned of the Defendant’s
        possible whereabouts on May 20, 2016 [sic], when the Court
        signed the Order that Defendant be transported from Wabash
        County to DeKalb County for initial hearing.

        13. That on June 8, 2015, Initial Hearing was held in DeKalb
        Superior Court II at which time the Defendant appeared pro se,
        which is the first date that DeKalb Superior Court II positively
        knew of the whereabouts of the Defendant following its Order of
        June 5, 2014.


Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 9 of 14
               14. That between June 5, 2014, and May 15, 2015, Defendant
               failed to present any evidence that the DeKalb County
               Prosecuting Attorney, the DeKalb County Sheriff’s Department,
               or the DeKalb Superior Court II knew of the Defendant’s
               whereabouts or otherwise had reason to know of the Defendant’s
               whereabouts.

               15. That the fact the DeKalb County Prosecutor’s Office knew in
               June of 2014 that the Defendant was a Wabash county resident
               did not put that office or the DeKalb County Sheriff’s
               Department on notice of the Defendant’s specific whereabouts,
               especially considering the fact that the return of the warrants
               faxed to Wabash County on June 6, 2014, were not filed in
               DeKalb County until well after May 15, 2015. Based on the
               record, neither the DeKalb County Prosecutor’s Office nor the
               DeKalb County Sheriff’s Department had actual notice of the
               Defendant’s whereabouts until at least May 15, 2015.

               16. That during the period of June 5, 2014, through May 15,
               2015, the Defendant failed to provide the Prosecuting Attorney
               of DeKalb County, the DeKalb County Sheriff’s Department, or
               the DeKalb Superior Court II with any written notice of his
               whereabouts.

               17. That based on the foregoing findings and conclusions, the
               Court finds that the clock for Criminal Rule 4 purposes did not
               begin to run until May 15, 2015.


       Supp. App. at 30-32, 36-39 (citations omitted).


[16]   Myers maintains that the Rule 4 clock should have begun to run on June 6,

       2014, the date when he was arrested in Wabash County and presented with the

       DeKalb County warrants. He relies on Caldwell, 922 N.E.2d at 1287-88, in

       which another panel of this Court reversed the denial of the defendant’s motion

       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 10 of 14
       for discharge. There, the defendant had been released on recognizance after his

       arrest for operating while intoxicated. Id. at 1288. A few days later, the State

       filed a multiple-count information against him, but the clerk of the court did not

       send the warrant to the county sheriff for execution. Id. Eighteen months later,

       the State requested an initial hearing and summons for Caldwell to appear. Id.

       Again, the clerk of the court failed to forward the summons to the sheriff for

       service. Id. When the defendant heard that his name was on the docket, he

       voluntarily appeared in court and subsequently moved for discharge. Id. We

       find Caldwell distinguishable in that there all of the events took place in a single

       county. Here, however, two counties were involved, and the record shows a

       lack of awareness by the DeKalb County authorities that an arrest had been

       made in Wabash County on their warrants.


[17]   We find this case to be more factually similar to Feuston v. State, in which we

       affirmed the trial court’s denial of the defendant’s motion for discharge. 953

       N.E.2d 545, 551 (Ind. Ct. App. 2011). 2 There, the defendant had been arrested

       in Jay County on a theft charge. He was released on bond and failed to appear

       for his pretrial conference. Five months after his arrest in Jay County, he was

       arrested and jailed in Delaware County on a burglary charge. Nearly eighteen

       months after his Jay County arrest, he filed a motion for discharge, claiming

       that upon his arrival at the Delaware County Jail, a jail employee had read him




       2
         In Austin, 997 N.E.2d at 1038-39, our supreme court declined to follow Feuston on the issue of the
       appropriate standard of review in Criminal Rule 4 cases.

       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016         Page 11 of 14
       the warrant from Jay County, which constituted a “hold” based on those

       charges, and that because one year had passed since then, he was entitled to

       discharge under Rule 4(C). Id. at 546. Emphasizing that the trial court and

       prosecutor alone bear the responsibility of bringing a defendant to trial in a

       timely manner, we held that Feuston was not entitled to discharge because he

       failed to meet his burden of demonstrating that the Jay County trial court and

       prosecutor had actual knowledge of his whereabouts during the time that he

       was incarcerated in Delaware County. Id. at 553. Even though certain fax

       communications indicated that employees from the Jay County Jail were aware

       of Feuston’s incarceration in Delaware County, we concluded that “the

       knowledge of a police or correctional officer should not be imputed to the trial

       court or prosecutor.” Id. at 551.


[18]   Myers argues that Feuston is distinguishable because there the defendant had

       unclean hands due to his failure to appear for his pretrial conference. Id. at 552.

       While this is certainly a factual distinction, it is not dispositive. In both cases,

       the prosecutor and the trial court were unaware of the defendant’s incarceration

       in the second county. To the extent that Myers equates the prosecutor’s and the

       trial court’s lack of awareness of his whereabouts with a silence in the record

       that cannot be attributed to him, we disagree.


[19]   As the movant, Myers had the burden of demonstrating that he was not brought

       to trial within the time limits of Rule 4(C) and therefore was entitled to

       discharge. Yet, he failed to call witnesses to controvert Prosecutor

       Winebrenner’s averments in her affidavit that she lacked knowledge of his

       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 12 of 14
       whereabouts. 3 For example, he did not call any personnel from Wabash

       County to ask why the warrants were not returned to DeKalb County. Nor did

       he call Officer Evenson to clarify why the warrants were incomplete,

       improperly filled out, and not returned to DeKalb County and to ask whether

       he attempted to notify the DeKalb County prosecutor or trial court concerning

       his detention and arrest of Myers. Nor did he call Officer Heffelfinger to testify

       as to how he became aware of Myers’s incarceration in the Wabash County Jail

       when he attempted to interview him and to determine whether the officer was

       aware of the DeKalb County warrants or had simply heard about Myers’s

       detention and pending revocation of his bond in the original Wabash County

       Cause. We simply do not know how Officer Heffelfinger knew to find Myers in

       the Wabash County Jail or why he did not attempt to return Myers to DeKalb

       County.


[20]   What we do know is that the trial court found that the DeKalb County

       prosecutor did not become aware that Myers had been arrested on their

       warrants until May 15, 2015, and that the court attested to its own lack of

       awareness of Myers’s whereabouts between June 2014 and May 2015. In other



       3
         We acknowledge the very recent decision in Arion v. State, 56 N.E.3d 71, 72 (Ind. Ct. App. 2016), in which
       another panel of this Court reversed the trial court’s denial of the defendant’s motion for discharge where the
       defendant was incarcerated in Miami County on prior convictions. The Arion court emphasized that the law
       enforcement officer’s failure to return a warrant to the Carroll County trial court after serving it on the
       incarcerated defendant did not absolve the State of its responsibility to bring the defendant to trial in a timely
       manner. Id. Arion is factually distinguishable in that there, “[b]oth the State and the trial court were well
       aware of Arion’s whereabouts[.]” Id. at 75. Here, the DeKalb County prosecutor and trial court did not
       know Myers’s whereabouts, and we consider Wabash County law enforcement’s failure to return the
       warrants to DeKalb County only to the extent that the unreturned warrants have implications concerning the
       lack of awareness of Myers’s arrest.

       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016             Page 13 of 14
       words, as between Myers, the trial court, and the DeKalb County prosecutor,

       Myers was the only one who knew that he had been arrested on the DeKalb

       County warrants. To the extent that Myers argues that DeKalb County

       authorities should have known his whereabouts based on his address in the city

       of Wabash, thus equating knowledge of a person’s residence in a county with

       knowledge that the person is housed in that county’s jail, he invites us to

       reweigh evidence, which we may not and will not do.


[21]   In sum, Myers has failed to provide us with a record that indisputably shows

       that the DeKalb County prosecutor and/or the trial court became aware of his

       incarceration before May 15, 2015. As such, he has failed to meet his burden of

       demonstrating that the trial court clearly erred in denying his motion for

       discharge. Accordingly, we affirm.


[22]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A04-1510-CR-1688 | November 4, 2016   Page 14 of 14
