MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 21 2019, 9:54 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael E. Hunt                                         Curtis T. Hill, Jr.
Monroe County Public Defender                           Attorney General of Indiana
Bloomington, Indiana
                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Deandre L. Williams,                                    November 21, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-734
        v.                                              Appeal from the Monroe Circuit
                                                        Court
State of Indiana,                                       The Honorable Mary Ellen
Appellee-Plaintiff                                      Diekhoff, Judge
                                                        Trial Court Cause No.
                                                        53C05-1705-F3-489
                                                        53C05-1705-F3-434



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019               Page 1 of 10
[1]   Deandre J. Williams pursues an interlocutory appeal of the trial court’s denial

      of his motion for discharge under Indiana Criminal Rule 4(A). He argues the

      trial court’s denial of his motion was clearly erroneous. We affirm.



                                   Facts and Procedural History
[2]   On May 4, 2017, the State charged Williams in Cause Number 53C05-1705-F3-

      000434 (“F3-434”) with two counts of Level 3 felony armed robbery, 1 one

      count of Level 3 felony robbery resulting in bodily injury, 2 and one count of

      Level 5 felony robbery. 3 The State also alleged Williams was an habitual

      offender. 4 The probable cause affidavits supporting the charges allege Williams

      committed two underlying robberies, one at a Bloomington hotel and another

      at a Bloomington liquor store. The trial court issued an arrest warrant, and

      officers executed the warrant on May 11, 2017. At the initial hearing held on

      the same day as Williams’ arrest, the trial court set the matter for jury trial on

      November 6, 2017.


[3]   On May 18, 2017, the State charged Williams in Cause Number 53C05-1705-

      F3-000489 (“F3-489”) with five counts of Level 3 felony armed robbery. 5 The

      State alleged Williams committed a string of additional robberies in the


      1
          Ind. Code § 35-42-5-1.
      2
          Ind. Code § 35-42-5-1.
      3
          Ind. Code § 35-42-5-1.
      4
          Ind. Code § 35-50-2-8.
      5
          Ind. Code § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019   Page 2 of 10
Bloomington area, including robbing a pizza parlor on two separate occasions

and robbing once each a laundromat, convenience store, and bakery. After

Williams’ initial hearing in F3-489, which occurred on May 19, 2017, F3-434

and F3-489 proceeded together on the same procedural track. The court

periodically reviewed the cases through a series of pretrial conferences.


At the October 23, 2017, pretrial conference, Williams’ counsel and the court

discussed the possibility of placing Williams on home detention at Wheeler

Mission pending resolution of his charges. The court wanted assurance that

Williams would be able to comply with GPS monitoring while at Wheeler

Mission and that Wheeler Mission would commit to accepting Williams on a

specific date. The trial court indicated that it would have to contact Wheeler

Mission to see if it could coordinate Williams’ release to home detention. In

the meantime, Williams requested the matter be set for another pretrial

conference. When the trial court suggested setting the matter for pretrial

conference on December 12, 2017, the State noted Williams had a trial date set

in November. Williams’ counsel stated in response, “[w]e would waive or

move to vacate.” (Oct. 23, 2017, Tr. at 6.) The court set the matter for a

further pretrial conference on December 12, 2017. A Chronological Case

Summary note following the October 23, 2017, pretrial conference states, “Jury

Trial scheduled for 11/06/2017 at 8:30 AM was cancelled. Reason: Agreement

of Parties.” (App. Vol. II at 4.) The court held additional pretrial conferences

over the next year.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019   Page 3 of 10
[4]   On November 2, 2018, Williams filed a Motion to Discharge arguing that he

      was entitled to release on his own recognizance because the State failed to bring

      him to trial within six months of his arrest. The State responded to Williams’

      motion on December 3, 2018. In its response, the State listed the number of

      days attributable to Williams and argued “the defendant’s eligibility for relief

      under Criminal Rule 4(A) or 4(C) has not vested.” (Id. at 52.) In response to

      Williams’ motion, the State did not list the fifty-day time period between

      October 23, 2017, and December 12, 2017, as attributable to the defense, but

      the State also did not calculate the number of days attributable to the State.


[5]   On December 13, 2018, the trial court denied Williams’ motion for discharge

      during a pretrial conference and stated on the record:


              At no time did the defense object to a continuance nor at any
              time did the defense say specifically that it was not. There were
              conversations done frequently with Mr. Williams, in fact with
              Mr. Williams addressing the Court, about going to Wheeler to
              live; living someplace else; looking into someplace else. The
              Court at the suggestion and request of the defense looked at other
              places to live and looked at other places for him to be. Was
              willing to do them but they did not work out. It was not
              anything that the prosecution was putting forward it was things
              that the defense was asking. Those continuances are attributed to
              the defense.


      (Dec. 13, 2018, Hearing Tr. at 5-6) (errors in original). Williams filed a motion

      to correct error, and the trial court denied his motion. Williams then sought

      and was granted leave to pursue this interlocutory appeal.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019   Page 4 of 10
                                Discussion and Decision
[6]   In evaluating Criminal Rule 4 motions, we review questions of law de novo and

      factual findings for clear error. Bradley v. State, 113 N.E.3d 742, 748 (Ind. Ct.

      App. 2018), reh’g denied, trans. denied. Rule 4(A) provides:


              (A) Defendant in Jail. No defendant shall be detained in jail on
              a charge, without a trial, for a period in aggregate embracing
              more than six (6) months 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 make such statement in a motion for continuance not later
              than ten (10) days prior to the date set for trial, or if such motion
              is filed less than ten (10) days prior to trial, the prosecuting
              attorney shall show additionally that the delay in filing the
              motion was not the fault of the prosecutor. 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 detained shall be released on his own recognizance
              at the conclusion of the six-month period aforesaid and may be
              held to answer a criminal charge against him within the
              limitations provided for in subsection (C) of this rule.


      Crim. R. 4(A) (emphasis in original). A defendant in custody and awaiting trial

      is entitled to be released from jail if 180 days pass from the date he is arrested or

      charged (whichever is later) without trial. Id. However, every day a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019   Page 5 of 10
      defendant’s trial is delayed because of the defendant’s own motion or act, or

      because of a congested court calendar, does not count toward the 180 days. Id.

      Criminal Rule 4 is meant to protect a defendant’s right to expeditious resolution

      of criminal charges without providing the defendant with a technical means to

      escape prosecution. Logan v. State, 16 N.E.3d 953, 959 (Ind. 2014). When the

      record is silent regarding the reason for a delay, the delay is attributed to the

      State. Schwartz v. State, 708 N.E.2d 34, 37 (Ind. Ct. App. 1999). Whether or

      not a trial date is set, a delay in trial on the defendant’s own motion is not

      attributed to the State for Criminal Rule 4 purposes. Cook v. State, 810 N.E.2d

      1064, 1067 (Ind. 2004). Also, if the defendant delays a task that must be

      completed before trial, that amounts to the defendant delaying trial. Payton v.

      State, 905 N.E.2d 508, 512 (Ind. Ct. App. 2009), trans. denied.


[7]   The parties generally agree regarding which party is responsible for most of the

      delays in bringing Williams to trial. For example, both parties agree the forty-

      nine-day delay between the date of Williams’ arrest in F3-434, May 11, 2017,

      and the pretrial conference on June 29, 2017, is attributable to the State.

      However, the parties disagree regarding which side should be charged with the

      fifty-day delay from October 23, 2017, to December 12, 2017. The impetus of

      this appeal is to determine whether it was clear error not to attribute those days

      to the State. For clarity, we have distilled the historical tally of these days into

      the following chart.

       Dates                              Total Number of Days                Party Charged with the Days

       5/11/17 to 6/28/17                 49                                  State


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019          Page 6 of 10
       6/29/17 to 8/27/17                 60                                  Defense

       8/28/17 to 9/24/17                 28                                  State

       9/25/17 to 10/22/17                28                                  Defense

       10/23/17 to 12/11/17               50                                  *in dispute on appeal*

       12/12/17 to 1/15/18                35                                  Defense

       1/16/18 to 3/5/18                  49                                  State

       3/6/18 to 5/2/18                   58                                  Defense

       5/3/18 to 6/11/18                  40                                  State

       6/12/18 to 11/2/18                 143                                 Defense




      The fifty days in dispute on appeal is dispositive. If the fifty days are attributed

      to Williams, then Williams is not entitled to release on his own recognizance

      pursuant to Criminal Rule 4(A) because the total delay charged to the State is

      only 166 days for F3-434 and 159 days for F3-489. However, if the fifty days

      are attributed to the State, then Williams is entitled to release on his own

      recognizance because the total delay charged to the State is 216 days for F3-434

      and 209 days for F3-489.



[8]   Williams asserts the record is silent regarding the fifty-day delay from October

      23, 2017, to December 12, 2017, and therefore, these days should be attributed

      to the State. Williams bases his assertion on the fact that the Chronological

      Case Summary entry for October 23, 2017, states: “Defendant appears in the

      custody of the sheriff and by counsel. Cause set for further pretrial conference

      on December 12, 2017 at 10:00 a.m. . . . Parties are checking on dates

      defendant can go to Wheeler Mission.” (App. Vol. II at 4.) Williams also

      notes that, in response to his motion to discharge, the State did not list this fifty-

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019           Page 7 of 10
      day time period between October 23, 2017, and December 12, 2017, as

      attributable to the Defense. If we credit those fifty days to the State, Williams

      argues, then Williams was held in custody without trial for over six months

      because of delays not attributable to him. Therefore, Williams argues he is

      entitled to be released on his own recognizance. 6


[9]   However, the transcript of the October 23, 2017, pretrial conference reveals the

      matter was continued at the defendant’s request, so the court could determine

      whether Wheeler Mission was an appropriate place for Williams to serve home

      detention. When the State brought up that Williams’ jury trial was set for

      November 6, 2017, Williams moved to vacate the trial. 7 As the trial court

      noted at the hearing on Williams’ Motion to Discharge, Williams requested

      that he be allowed to serve his pretrial confinement on home detention. That

      was not something the State requested. In fact, the State objected to Williams’


      6
        In his reply brief, Williams argues the State waived its argument that the fifty days between October 23,
      2017, and December 12, 2017, should be attributed to Williams because the State did not raise the argument
      before the trial court. In Ind. Bureau of Motor Vehicles v. Gurtner, we held that a driver’s argument that she was
      not provided adequate due process before her driving privileges were suspended was not waived even though
      she did not raise it before the trial court because she was an appellee seeking to affirm a trial court’s
      judgment. 27 N.E.3d 306, 312 (Ind. Ct. App. 2015). We noted that an appellee is entitled to defend a trial
      court’s judgment on any grounds, and we observed that “[t]his rule is consistent with the presumption in all
      appeals that a trial court’s judgment is correct as well as the general rule that on appeal we will affirm a
      judgment on any theory supported by the record.” Id. Consequently, while the State did not attribute the
      days to Williams in response to Williams’ motion to discharge, the State is not precluded from arguing on
      appeal that those days should be attributed to Williams.

      7
       Williams argues he had no option but to agree to vacate the trial date at the October 23, 2017, pretrial
      conference because the State failed to timely exchange information in discovery. However, this argument
      was not raised in Williams’ initial brief. It is well settled that “[a]ppellants are not permitted to present new
      arguments in their reply briefs, and any argument an appellant fails to raise in his initial brief is waived for
      appeal.” Kelly v. Levandoski, 825 N.E.2d 850, 858 n.2 (Ind. Ct. App. 2005), trans. denied; see also Ind. App. R.
      46(C). Consequently, Williams has waived any argument that additional delay should be attributed to the
      State because the State failed to cooperate in discovery. See Cobbs v. State, 987 N.E.2d 186, 191 n.1 (Ind. Ct.
      App. 2013) (holding argument presented for first time in reply brief was waived).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019                     Page 8 of 10
       potential release to home detention. Consequently, as the trial court explained

       at the December 13, 2018, pretrial conference, any delay caused by trying to

       find a place for Williams to serve home detention should be charged to the

       defense. We cannot say this was clear error based on the record before the trial

       court, and therefore, we hold Williams’ motion to discharge was properly

       denied. See Austin v. State, 997 N.E.2d 1027, 1043 (Ind. 2013) (holding trial

       court did not clearly err in finding court congestion warranted setting

       defendant’s trial outside period provided by speedy trial rule).



                                              Conclusion
[10]   We hold the fifty-day delay between October 23, 2017, and December 12, 2017,

       is attributable to Williams because Williams agreed to vacate the November

       2017 trial date, and the reason for the delay was for the trial court to determine

       if Wheeler Mission was an adequate home detention placement for Williams,

       given Williams wanted to be released to home detention pending resolution of

       his charges. Therefore, the total number of days of incarceration attributable to

       the State between Williams’ arrest and the date of the motion to discharge was

       166 for F3-434. In F3-489, the total delay attributed to the State was 159 days.

       Both delays are less than the 180-day delay required by Indiana Criminal Rule

       4(A) to mandate Williams’ release on his own recognizance. Consequently,

       Williams’ motion to discharge was premature, and we affirm the trial court.


[11]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019   Page 9 of 10
Bailey, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-734 | November 21, 2019   Page 10 of 10
