                                                                                   FILED
                                                                              Apr 22 2016, 5:36 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mitchele J. Harlan                                         Gregory F. Zoeller
Clark County Assistant Public Defender                     Attorney General of Indiana
Jeffersonville, Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Byron Tinker, and                                          April 22, 2016

Travis Kelley,                                             Court of Appeals Case No.
                                                           10A01-1507-CR-999
Appellants-Defendants,
                                                           Appeal from the Clark Circuit
        v.                                                 Court
                                                           The Honorable Bradley Jacobs,
State of Indiana,                                          Judge
                                                           Trial Court Cause No.
Appellee-Plaintiff.
                                                           10C02-1207-FD-974
                                                           10C02-1210-FC-245



May, Judge.




Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016                    Page 1 of 12
[1]   On July 19, 2012, the State charged Byron Tinker 1 with one Class D felony and

      three Class A misdemeanors. On February 19, 2015, Tinker filed a motion to

      dismiss because he had not been brought to trial within the one year required by

      Criminal Rule 4(C). The trial court denied Tinker’s motion, but certified that

      decision for interlocutory appeal. On appeal, Tinker argues the trial court

      erroneously assigned periods of time to him that should have counted against

      the State for Rule 4(C) calculations. We reverse and order the charges against

      Tinker dismissed with prejudice.


                                     Facts and Procedural History 2
[2]   Tinker was arrested on July 16, 2012. On July 19, 2012, the State charged him

      with Class D felony maintaining a common nuisance, 3 Class A misdemeanor

      dealing in marijuana, 4 Class A misdemeanor possession of marijuana, 5 and

      Class A misdemeanor possession of paraphernalia. 6 On July 31, 2012, the trial

      court appointed a public defender to represent Tinker and scheduled pretrial




      1
        Travis C. Kelley’s interlocutory appeal of the Clark Circuit Court’s denial of his Criminal Rule 4(C) motion
      to dismiss was consolidated with Tinker’s case for purposes of appeal. We dismissed Kelley’s appeal because
      the charges against Kelley were resolved by a plea agreement.
      2
        We heard oral argument March 15, 2015, in Evansville, Indiana. We thank the Evansville Bar Association
      for its hospitality, and we commend counsel on the quality of their advocacy.
      3
          Ind. Code § 35-48-4-13(b) (2001).
      4
          Ind. Code § 35-48-4-10 (2012).
      5
          Ind. Code § 35-48-4-11 (effective March 15, 2012).
      6
          Ind. Code § 35-48-4-8.3(b) (2003).


      Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016                         Page 2 of 12
      hearings on August 27 and September 26, an attorney conference on October

      12, and trial on November 13, 2012.


[3]   At the second pretrial conference on September 26, 2012, the parties reported

      Tinker had accepted a plea offer. (See Appellant’s App. at 2 (“Offer made,

      accepted.”).) The next CCS entry, for the Attorney Conference on October 12,

      2012, states only: “TMC.” 7 (Appellants’ App. at 2.) The trial date, November

      13, 2012, passed without a CCS entry.


[4]   On January 8, 2013, the court’s CCS entry indicated it was resetting the pretrial

      and trial dates “[b]y agreement of the parties.” (Id.) The final pretrial was set

      for January 30, 2013; the final plea deadline was set for February 8, 2013; and

      trial was set for March 12, 2013. Those three dates passed without any

      additional CCS entries.


[5]   The next CCS entry is on April 2, 2013, when the court reset the final pretrial

      conference for May 1, the final plea deadline as May 17, and the trial on June

      11, 2013. Those dates also passed without any CCS entries.


[6]   The next CCS entry is on July 30, 2013, when the court set the final pretrial

      conference for August 28, a status conference for September 18, and a trial for

      October 1, 2013. The CCS indicates the parties appeared on August 28 and




      7
        We were unable to find an explanation in the record for the abbreviation “TMC,” but Appellant’s Counsel
      clarified at oral argument that it meant “Trial Management Conference.”

      Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016                      Page 3 of 12
      “Plea offer outstanding.” (Id.) The dates for status conference and trial passed

      without CCS entries.


[7]   The next CCS entry is 391 days later, on September 23, 2014. On that date, the

      court set pretrial conferences for November 3, 2014, and December 3, 2014, a

      status conference for January 14, 2015, and trial for January 27, 2015. The

      prosecutor and defense counsel appeared on November 3, 2014, but “Def. not

      present. Dates remain set.” (Id.) The CCS entry for the pretrial conference on

      December 3, 2014, states:

              State by DPA Michaelia Gilbert. Def. by Defense Counsel
              Mitch Harlan. Both counsel unavailable due to quantity of cases
              on the docket. Dates remain set.


      (Id.) A CCS entry for the January 14, 2015, status conference indicates:


              State present by DPA Gilbert. Jury trial is set for 1/27/15.
              Counsel has not had contact with defendant in some time. State
              requests warrant for FTA for Final Plea Deadline.


      (Id.) No CCS entry occurred on January 27, 2015, when the trial was

      scheduled.


[8]   On February 19, 2015, Tinker filed a motion to dismiss the charges against him

      because the State had not brought him to trial within the 365 days required by

      Criminal Rule 4(C). The trial court denied Tinker’s motion in a CCS entry that

      stated: “Court waives/denies Motion for CR4, due to untimely filed objection.”




      Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016   Page 4 of 12
(Id. at 14.) At the end of the hearing on Tinker’s motion, the judge provided a

more detailed explanation:

        I’m going to deny the Motion. I’m going to set out the factors
        here, so that it uh it’s a Final Order and Mr. Tinker if you wanted
        to pursue an Appeal [sic], you’ve definitely a right to do so. Um
        what I’ve got is the Advice of Rights, something happened on
        July 31st, assume that’s the Advice of Rights and it attaches.
        Once the Plea Offer was accepted on September 26th, I’m going
        to find that at that point any delay is attributed to Mr. Tinker.
        Um by either the misrepresentation or misunderstanding, but the
        State relied on his ab- uh his statement of some sort that he was
        going to accept the Plea Agreement. Uh I begin it again March
        12, 2013, when the Jury Trial that had been reset um basically
        just came and went. Any delay between September 2012 and
        March . . . 2013, I did find the delay is attributed to Mr. Tinker
        for uh attempting at least to accept the Plea. Then uh March 12th
        until [June] 11th, I’m going to give to Mr. Tinker, and that comes
        to 91 actual days. And then from June 11th when that Trial
        comes and goes and no action is taken to October 1st, I also give
        to Mr. Tinker, that’s 112 actual days. The problem we run into,
        and this, Mr. Tinker, this is no fault of your attorney, um it really
        this is almost impossible to do correctly but October 1st is when
        the Jury Trial came and went, clearly that’s nothing that was
        caused by your [sic] the delay was not caused by you, however,
        uh it was January 27th until the next actionable date, and that was
        your next Trial Date I believe, there’s no objection made in time
        for the State to try you within the 365 days. What’s required
        with CR4 is that the State bring you to Trial, but more
        importantly in this case, is that you have to object to a Trial
        setting outside of that 365 days. January 27th was your Jury Trial
        date, um and so at that point that would have put you over the
        365, but again your Trial for some reason was lost again. And
        since an objection was not made, I can’t give you credit from
        those days, from October 1st to January 27th, 2015. The the [sic]
        part that I struggled with over the last few days researching the

Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016   Page 5 of 12
              case is there is no clear direction when that objection is not
              made, the CR4 is waived, but how many of those days are
              waived. And Mr. Harlan, if you do Appeal [sic], I would suggest
              you pursue that. How many of those days are waived? I think if
              I picked anything other than zero, it’s arbitrary. Um so then
              when the objection is made in February . . . 20th, . . . I would be
              inclined to find that uh absent that requirement to object within a
              reasonable time, all that time would have been attributable, and
              but from [January 27 to February 20] I would give Mr. Tinker
              time for that, but that’s only 24 days and we’re not at 365. So, I
              think the issue would be between October 1, 2013 and January
              27, 2015 that’s where the error may lie, if I’m making error, but
              uh the cases I’ve found are pretty clear that the objection has to
              be made in a timely manner, I can’t say that that was done.


      (Tr. of Proceedings, State v. Byron Tinker, May 27, 2015 (hereinafter “Tr.”) at 3-

      5.) 8 At Tinker’s request, the trial court certified its order for interlocutory

      appeal, and we accepted jurisdiction.


                                       Discussion and Decision
[9]   Indiana Rule of Criminal Procedure 4(C) provides:

              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



      8
       We direct the Official Court Reporter of Clark Circuit Court No. 2 to Indiana Appellate Rule 28(A)(2),
      which explains that the “pages of the Transcript shall be numbered consecutively regardless of the number of
      volumes the Transcript requires.” We were provided a single volume of transcript for Tinker’s appeal that
      contains two hearings, and the pages for each hearing were separately numbered.

      Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016                        Page 6 of 12
               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.


[10]   Rule 4(C) places an affirmative duty on the State to bring a defendant to trial

       within one year. Gibson v. State, 910 N.E.2d 263, 266 (Ind. Ct. App. 2009).

       “[T]he focus of Criminal Rule 4 is not fault; it is to ensure early trials.” Curtis v.

       State, 948 N.E.2d 1143, 1151 (Ind. 2011). Rule 4 exists to effectuate “a criminal

       defendant’s fundamental and constitutionally protected right to a speedy trial.”

       Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013). Nevertheless, it “is not

       intended to be a mechanism for providing defendants a technical means to

       escape prosecution.” Id.


[11]   Our standard for reviewing the trial court’s determination on a Rule 4 motion

       depends on the type of decision made by the trial court. If there were no

       disputed facts and the trial court needed only to apply the law to those

       undisputed facts, then our “standard of review—like for all questions of law—is

       de novo.” Austin, 997 N.E.2d at 1039. However, if the trial court made factual

       findings regarding court congestion or emergency, for example, based on

       disputed facts, then we review for clear error. Id. at 1040. Under that standard,


       Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016    Page 7 of 12
               [w]e neither reweigh the evidence nor determine the credibility of
               witnesses. We consider only the probative evidence and
               reasonable inferences supporting the judgment and reverse only
               on a showing of clear error. Clear error is that which leaves us
               with a definite and firm conviction that a mistake has been made.


       Id. (internal citations and quotations omitted).


[12]   Tinker was arrested on July 16, 2012, and the State filed charges against him on

       July 19, 2012. Thus, the one-year period in which he needed to be tried began

       to run on July 19, 2012. See Crim. R. 4(C) (“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”).


[13]   Sixty-nine days later, on September 26, 2012, the parties appeared at a pretrial

       conference and informed the court that a plea had been offered and accepted.

       The November 13 trial date remained on the court’s calendar, but no

       proceedings occurred. Then, on January 8, 2013, by “agreement of the parties

       the Court now resets” trial for March 12, 2013. (Appellant’s App. at 2.)


[14]   The trial court assigned the 167 days between September 26, 2012, and March

       12, 2013, to Tinker. On appeal, Tinker concedes he is responsible for “the

       period from when the notation at a pretrial conference that there is an

       agreement, until the end of the new trial date setting . . . [because] [d]uring that

       period, the defendant did not act in a way consistent with the speedy trial rule.”

       (Appellants’ Br. at 10.) We accept Tinker’s concession and assign those 167

       days to him.


       Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016   Page 8 of 12
[15]   In its explanation at the hearing, the trial court mentioned the time before the

       plea was accepted on September 26, 2012, but it did not seem to explicitly

       determine whether those sixty-nine days should be assigned to Tinker. On

       appeal Tinker argues, and the State conceded at oral argument, those days

       should count against the one year in which Tinker needed to be tried. Thus, by

       agreement of the parties, as of March 12, 2013, sixty-nine days of the year in

       which Tinker needed to be tried had elapsed.


[16]   The next time period to be considered is the 203 days between March 12, 2013,

       and October 1, 2013. The trial court assigned all of this time to Tinker and

       noted, for at least part of that time, “no action is taken.” (Tr. at 4.) Tinker

       argues the trial court erred by assigning this time to him because he was not

       required to take any action to move his case to trial. The State argues that,

       although the record before us provides no justification for assigning those days

       to Tinker, we should remand to allow the trial court to explain why it assigned

       those days to Tinker. 9 We decline the State’s invitation to remand.


[17]   The one year deadline for bringing a defendant to trial is extended if the

       defendant requested the continuance, if the defendant’s act caused the

       continuance, or if an emergency or court congestion caused the delay. Crim. R.




       9
         The State also asks us to rely on evidence “not contained in the record as currently constituted.” (State’s
       Br. of Appellee at 9 n.3.) Specifically, the Deputy Attorney General asks us to rely on her conversation with
       a Clark County deputy prosecutor about a proposed minute entry regarding Tinker’s alleged absence from a
       pre-trial conference on September 18, 2013, which was submitted but the court did not docket. “This
       argument relies on evidence not in the record, and we thus decline to address it.” Julie C. v. Andrew C., 924
       N.E.2d 1249, 1258 (Ind. Ct. App. 2012).

       Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016                         Page 9 of 12
       4(C). “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.” Id. We have held the same expectation should apply – the

       entry of a timely order in the court’s record – to justify charging a delay to a

       defendant:

               Reviewing courts may not attribute delays in proceeding to trial
               to the defendant where the record is void regarding the reason for
               the delay. Where docket entries are absent or missing regarding
               the reason for a delay, the delay is not chargeable to the
               defendant.


       Alter v. State, 860 N.E.2d 874, 878 (Ind. Ct. App. 2007) (internal citations

       omitted) (charging unexplained delays to the State for Criminal Rule 4(C)

       calculations).


[18]   Tinker’s case was scheduled to be tried on March 12, 2013, June 11, 2013, and

       October 1, 2013. Although Indiana Trial Rule 77(B) requires that, “The judge

       of the case shall cause Chronological Case Summary entries to be made of all

       judicial events,” all of those scheduled dates for Tinker’s trial passed without a

       CCS entry to explain why the case was not tried. Pursuant to Alter, we may not

       remand for the trial court to explain those delays at this late date, as the record

       already should have contained the support required to determine their proper

       assignment. Id. at 879; see also T.R. 77(B) (“Notation of judicial events in the

       Chronological Case Summary shall be made promptly, and shall set forth the

       date of the event and briefly define any documents, orders, rulings, or

       judgments filed or entered in the case.”). Thus, the 203 days that passed
       Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016   Page 10 of 12
       between March 12, 2013, and October 1, 2013, are included in the 365-day

       deadline.


[19]   As of October 1, 2013, 272 (i.e., 69+203) of the 365 days in which Tinker

       needed to be tried had passed. The next action taken in the State’s cause

       against Tinker was 357 days later on September 23, 2014, when the trial court

       set trial for January 27, 2015. The trial court assigned those 357 days to Tinker

       because “there’s no objection made in time for the State to try you within the

       365 days.” (Tr. at 4.) That determination was also error.


[20]   Indiana law provides:

               A defendant waives his right to be brought to trial within the
               period by failing to raise a timely objection if, during the period,
               the trial court schedules trial beyond the limit. However, a
               defendant has no duty to object to the setting of a belated trial
               date if the setting occurs after the year has expired.


       Pelley v. State, 901 N.E.2d at 494, 498-99 (Ind. 2009) (internal citations omitted).

       Thus, Tinker had an obligation to object only if, during the 365 day period, the

       court scheduled a new trial outside the 365 day period.


[21]   On September 23, 2014, the court rescheduled trial for 2015. 357 days had

       passed since the court’s prior action on October 1, 2013, at which point 272

       days had passed. As such, by the court’s act in September of 2014, 629 days

       had passed. There was no occasion on which, during the one-year period, the

       court attempted to reset trial outside the one-year period. Therefore, the trial

       court erred when it found Tinker had a duty to object.

       Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016   Page 11 of 12
[22]   The 357 days between October 1, 2013, and September 23, 2014, count against

       the one-year period and, when added to the days that had accrued prior to

       October 1, 2013, result in more than 365 days passing without Tinker being

       tried for his crimes. “Because the State did not bring [Tinker] to trial within

       one year of the date charges were filed, the trial court erred when it denied his

       motion for discharge pursuant to Criminal Rule 4(C).” Gibson, 910 N.E.2d at

       268.


                                                   Conclusion
[23]   We reverse the court’s decision and order the charges against Tinker dismissed

       with prejudice.


[24]   Reversed and remanded.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 10A01-1507-CR-999 | April 22, 2016   Page 12 of 12
