MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Feb 09 2018, 10:44 am

regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   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
Noah Williams                                            Curtis T. Hill, Jr.
Monroe County Public Defender                            Attorney General of Indiana
Bloomington, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Golby Desroches,                                         February 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A01-1704-CR-953
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Marc R. Kellams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         53C02-1408-FB-772



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018              Page 1 of 10
                                             Case Summary
[1]   Golby Desroches was charged with two class B felonies. He filed a motion to

      dismiss based on the State’s alleged failure to bring him to trial within the one-

      year limitation provided by Indiana Criminal Rule 4(C). The trial court found

      that when Desroches filed his motion to dismiss, the one-year period had not

      expired, and therefore his motion was untimely. At Desroches’ request, the

      trial court certified its decision for interlocutory appeal. On appeal, Desroches

      argues that the trial court erred in calculating the expiration of the one-year

      period by attributing a delay of 31 days to him. Finding no error, we affirm.


                                 Facts and Procedural History
[2]   On August 12, 2014, the State charged Desroches with rape and criminal

      deviate conduct as class B felonies. On October 6, 2014, Desroches was

      arrested and detained on those charges. Initially Desroches hired private

      counsel, but on February 5, 2015, Desroches’ private counsel filed a motion to

      withdraw because Desroches was unable to pay her as required by their fee

      arrangement. That day, the trial court granted private counsel’s motion to

      withdraw, appointed public defender Jeremy Noel to represent Desroches, and

      scheduled a pretrial conference for March 2, 2015. Noel filed his appearance

      on February 17, 2015.


[3]   On March 2, 2015, the trial court held a pretrial conference. The entry for that

      hearing in the chronological case summary (“CCS”) provides, “Hearing held.

      Court now sets this cause for further Pre-trial Conference on April 2, 2015.”


      Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018   Page 2 of 10
      Appellant’s App. Vol. 2 at 4. On April 2 Desroches requested a continuance in

      open court, which was granted, and the trial court continued the pretrial

      conference to May 28, 2015. After Desroches requested two more continuances

      on May 28, 2015, and July 20, 2015, the trial court continued the pretrial

      conference to August 18, 2015. At the August 18 pretrial conference Desroches

      requested that the cause be reset for “further pretrial conference[,]” which the

      trial court scheduled for September 16, 2015. Id. at 5. On September 16,

      Desroches moved for a continuance, which was granted, and the trial court set

      a final pretrial conference for October 15, 2015.


[4]   At the October 15 pretrial conference, the trial court set Desroches’ jury trial for

      March 14, 2016. On March 10, 2016, the trial court held a final motions

      conference. Desroches orally moved to continue the jury trial, which was

      granted, and the court continued the trial to June 6, 2016. On May 26, 2016,

      Desroches filed a motion for continuance, which the trial court granted. The

      trial court did not reschedule the trial but reset the cause for a pretrial

      conference to be held on July 18, 2016.


[5]   On July 5, 2016, public defender Noah Williams filed a motion to substitute his

      appearance for Noel’s. On July 18, 2016, Desroches moved for a seventh

      continuance. The trial court granted his motion and continued the pretrial

      conference to September 13, 2016.




      Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018   Page 3 of 10
[6]   On August 16, 2016, Desroches filed a notice to depose the alleged victim,

      C.N., a second time.1 On September 8, 2016, the State filed a request for an

      order to protect C.N. from another deposition. On September 13, 2016, the

      trial court conducted a pretrial conference, and Desroches filed a motion for

      specific discovery in response to the State’s motion for a protective order. The

      trial court set a hearing on the motions for September 22, 2016, and set a further

      pretrial conference for October 18, 2016.


[7]   After holding a hearing on the State’s motion for a protective order and

      Desroches’ motion for specific discovery, the trial court issued an order denying

      both motions on September 28, 2016. On September 30, 2016, Desroches

      contacted the State to schedule C.N.’s deposition and suggested the possibility

      of a Friday in November.2 Id. at 106, 108.


[8]   On October 10, 2016, Desroches filed a motion for an eighth continuance,

      which was granted, and the trial court continued the pretrial conference to

      October 20, 2016. On October 18, 2016, Desroches suggested to the State that

      C.N.’s deposition be scheduled for November 21 or 22, 2016, and the parties

      agreed to a deposition date of November 22.3 On October 20, 2016, the trial




      1
          Desroches’ first public defender previously took C.N.’s deposition on August 7, 2015.
      2
        In his reply brief, Desroches states that “the trial court requested that Desroches coordinate with counsel
      for a co-defendant in conducting the deposition so that the victim would not be deposed a third time.”
      Appellant’s Reply Br. at 14 (citing Appellant’s App. Vol. 2 at 95, 106). Although Desroches contends that
      this “unintentionally compound[ed] the delay[,]” he concedes that it was “certainly reasonable.” Id.
      3
        Apparently, in early November 2016, the State notified Desroches that C.N. was unavailable on November
      22, and the parties rescheduled the deposition for January 2017.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018             Page 4 of 10
       court conducted a pretrial conference, and set the cause for further pretrial

       conference for December 8, 2016.


[9]    At the December 8 pretrial conference, the parties advised that “they were

       unable to reach an agreement for disposition.” Id. The trial court set the jury

       trial for December 19, 2016, with a final motions conference on December 15,

       2016. On December 9, 2016, Desroches filed a notice of discovery deposition

       and a request for pretrial disclosure of the State’s intention to offer Rule 404(B)

       evidence at trial. Id.


[10]   On December 13, 2016, Desroches filed a motion to dismiss pursuant to

       Criminal Rule 4(C) and a supporting memorandum. On December 15, 2016,

       the trial court reset the cause for hearing on Desroches’ motion to dismiss for

       January 30, 2017. Following the hearing, on March 20, 2017, the trial court

       issued an order (“the Order”) denying Desroches’ motion to dismiss because

       the one-year period under the rule had not expired, and therefore the motion

       was untimely. The trial court found that 799 days had elapsed between

       Desroches’ arrest on October 6, 2014, and the filing of his motion to dismiss on

       December 13, 2016, but that 439 days were attributable to Desroches, and

       therefore the one-year period in which the State was required to bring

       Desroches to trial was extended to 804 days. Appealed Order at 3-4. In

       relevant part, the Order provides as follows:


               In the case at bar, at the request of [Desroches], a public defender
               was appointed on 02/05/2015. The public defender did not
               enter an appearance until 02/17/2015 and the public defender

       Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018   Page 5 of 10
               appeared for his first pre-trial conference on this matter on
               03/02/2015. On that date, the court set the cause for a further
               pre-trial hearing on 04/02/2015.


                ….


               While it is clear that it is improper to speculate on whether
               defense counsel needed a continuance to prepare his case, the
               record is clear that a continuance was needed. The delay in
               question is from 03/02/2015 to 04/02/2015. 03/02/2015 was
               the first time defense counsel appeared in this matter, and it was
               only two weeks after he filed his appearance. Subsequent to
               04/02/2015, the public defender requested four continuances,
               causing delays until 10/15/2015. At that point, trial was set for
               the first time for 03/14/2016. Taken as a whole, the record is
               not silent, but instead indicates clearly that defense counsel
               needed more time to prepare for trial.


       Id. at 3. This interlocutory appeal ensued.


                                       Discussion and Decision
[11]   Desroches contends that the trial court erred in denying his Criminal Rule 4(C)

       motion to dismiss. We begin by observing that Criminal Rule 4 implements a

       defendant’s federal and state constitutional rights to a speedy trial by “expressly

       requir[ing] that a defendant be discharged if not brought to trial within certain

       prescribed time limits.” Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995).4 In

       reviewing Criminal Rule 4 claims, we review questions of law de novo, and we



       4
        “The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States
       Constitution and by Article I, Section 12 of the Indiana Constitution.” Clark, 659 N.E.2d at 551.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018         Page 6 of 10
       review factual findings under the clearly erroneous standard. Austin v. State, 997

       N.E.2d 1027, 1039-40 (Ind. 2013). Here, the facts are undisputed, and therefore

       our review is de novo.


[12]   Criminal Rule 4(C) reads in part,


               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date of his arrest on such charge,
               whichever is later; 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 .…. Any defendant so held
               shall, on motion, be discharged.


[13]   Criminal 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). The defendant is under no obligation to remind either the State

       or the trial court of the State’s duty. Id. However, “when a defendant takes

       action which delays the proceeding, that time is chargeable to the defendant

       and extends the one-year time limit, regardless of whether a trial date has been

       set at the time or not.” Cook v. State, 810 N.E.2d 1064, 1066-67 (Ind. 2004); see

       also Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999) (“If a defendant seeks

       or acquiesces in a delay that results in a later trial date, the time limitations set

       by Criminal Rule 4 are extended by the length of such delays.”). When a

       defendant seeks a continuance, the time between his motion for a continuance

       and the new trial date is chargeable to the defendant. Todisco v. State, 965

       Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018   Page 7 of 10
       N.E.2d 753, 755 (Ind. Ct. App. 2012), trans. denied.5 If a defendant’s actions

       cause his attorney’s resignation or withdrawal, then the defendant is charged

       with that delay. Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996). “‘The

       determination of whether a particular delay in bringing a defendant to trial

       violates the speedy trial guarantee largely depends on the specific circumstances

       of the case.’” Payton v. State, 905 N.E.2d 508, 511 (Ind. Ct. App. 2009) (quoting

       State v. Penwell, 875 N.E.2d 365, 367 (Ind. Ct. App. 2007), trans. denied (2008)),

       trans. denied. “The objective of [Criminal Rule 4] is to move cases along and to

       provide the defendant with a timely trial, not to create a mechanism to avoid

       trial.” Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000); see also State v. Black, 947

       N.E.2d 503, 508 (Ind. Ct. App. 2011) (“The purpose of Criminal Rule 4 is to

       assure early trials, not to discharge defendants.”). “[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.


[14]   Here, the parties agree that the one-year period began to run on October 6,

       2014, when Desroches was arrested. Desroches filed his motion to dismiss on

       December 13, 2016. The number of days between Desroches’ arrest and the

       filing of his motion to dismiss is 799. The trial court found that 439 days were

       attributable to Desroches and that when he filed his motion there were still 5

       days remaining before the one-year period expired (799 – 439 = 360).



       5
          We observe that continuances due to court congestion or emergency do not count toward the Criminal
       Rule 4(C) period. Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011). However, these situations are not in
       issue here.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018            Page 8 of 10
       Desroches does not dispute that he formally requested eight continuances that

       account for 383 days and that the trial court properly attributed those days to

       him. Desroches also does not dispute that he contributed to the withdrawal of

       his private counsel and the necessity of the appointment of a public defender,

       which resulted in another delay of 25 days from February 5, 2015, when private

       counsel withdrew, to March 2, 2015, when the newly appointed public defender

       appeared at the pretrial conference held on that date. Thus, there is no dispute

       that the one-year period was extended by at least 408 days (383 + 25 = 408).


[15]   Desroches argues that the trial court erred in attributing to him the 31 days

       between the pretrial conference on March 2, 2015, and the next scheduled

       pretrial conference on April 2, 2015, and thus the one-year period expired on

       November 18, 2016. Specifically, he contends that the delay cannot be

       attributable to him because the record is “wholly silent” as to the reason for the

       delay. Appellant’s Br. at 13. Desroches is correct that courts “‘may not

       attribute delays in proceeding to trial to the defendant where the record is void

       regarding the reason for the delay.’” Curtis v. State, 948 N.E.2d 1143, 1151 (Ind.

       2011) (quoting Alter v. State, 860 N.E.2d 874, 878 (Ind. Ct. App. 2007)).

       However, we cannot agree that the record here is void regarding the reason for

       delay.


[16]   Desroches’ case was nearly four months old when his private counsel withdrew

       due to his failure to pay her. Because of Desroches’ actions, a public defender

       was appointed at that time to represent Desroches. Attorney Noel filed his

       appearance on February 17, 2015, just two weeks before the scheduled March

       Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018   Page 9 of 10
       2, 2015 pretrial conference. A further pretrial conference was scheduled for

       April 2, but Noel asked for continuances on April 2, May 28, July 20, and

       September 16, 2015. Finally, in October 2015, trial was set for the first time for

       March 15, 2016. The record supports a reasonable inference that Desroches’

       new public defender, whose sudden appointment was caused by Desroches’

       actions, required the time between March 2 and April 2 to prepare for trial, and

       therefore that time is attributable to Desroches. Not all changes of counsel will

       necessarily result in delays chargeable to the defendant. See Simpson v. State,

       165 Ind. App. 285, 289-90, 332 N.E.2d 112, 115-16 (1975) (concluding that trial

       court erred in charging defendant with delay based on appointment of new

       counsel where the only action taken by anyone after defendant filed motion for

       early trial was his request for appointment of new counsel). Clearly, it will

       depend on the record and the particular circumstances of the case. Here, the

       record is not void regarding the reason for the delay and supports a

       determination that Desroches’ actions caused the delay. We find no error in

       the trial court’s determination that Desroches caused the delay between March

       2 and April 2, 2015, and that the delay was attributable to him. Accordingly,

       we affirm the trial court’s denial of his motion to dismiss.


[17]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1704-CR-953 | February 9, 2018   Page 10 of 10
