       ATTORNEYS FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
       Timothy J. Burns                                               Gregory F. Zoeller
       Ruth A. Johnson                                                Attorney General of Indiana
       Indianapolis, Indiana
                                                                 Larry D. Allen
                                                                 Chandra K. Hein
                                                                 Deputy Attorneys General
                                                                 Indianapolis, Indiana
       ______________________________________________________________________________


                                                  In the                                FILED
                                 Indiana Supreme Court
                                                                                   Apr 28 2016, 4:18 pm

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                 _________________________________                     Court of Appeals
                                                                                         and Tax Court


                                          No. 49S05-1601-CR-46

               TRAVIS ALLEN ,                                         Appellant-Defendant,

                                                     v.

               STATE OF INDIANA,                                      Appellees-Defendants

                                 _________________________________

                   Appeal from the Marion Superior Court, No. 49F10-1112-CM-86414
                                 The Honorable Linda E. Brown, Judge
                                _________________________________

                On Transfer from the Indiana Court of Appeals, No. 49A05-1410-CR-501
                               _________________________________

                                              April 28, 2016

Dickson, Justice.


       The defendant was convicted of four traffic offenses, two related to his driving while in-
toxicated and two related to his lack of a driver's license. His trial took place on October 8,
2014, almost three years after his arrest on December 9, 2011. This appeal asserts a single claim:
that the trial court erroneously denied his Criminal Rule 4 motion for discharge for delay.


       The defendant contends that he is entitled to discharge under Indiana Rule of Criminal
Procedure 4(C), 1 which provides that a defendant may not be held to answer a criminal charge
for greater than one year "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 . . . ." The rule "places an affirmative duty on the State to bring a
defendant to trial within one year of being charged or arrested, but allows for extensions of that
time for various reasons." Cook v. State, 810 N.E.2d 1064, 1065 (Ind. 2004). This rule protects
the right of an accused to a speedy trial, which is guaranteed by the Sixth Amendment to the
United States Constitution 2 and protected by Article 1, Section 12 of the Indiana Constitution. 3
Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995).


          The defendant was arrested on December 9, 2011. The State does not argue that any de-
lay was attributable to the defendant during the period from the defendant's arrest through the
January 20, 2012, pretrial conference. At the defendant's request continuances were then granted
that delayed the case 116 days from January 20, 2012, to May 15, 2012, and the State argues that
an additional delay of 142 days from May 15, 2012, to October 4, 2012, should also be attributed
to the defendant. At a pre-trial conference on October 16, 2012, the defendant notified the trial
court that he had entered a guilty plea the previous day in another court and received a ten-year
sentence to be served at the Indiana Department of Corrections for an unrelated criminal convic-

1
    Indiana Criminal Rule 4(C) states:

          Defendant Discharged. No person shall be held on recognizance or otherwise to answer a crimi-
          nal 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 attor-
          ney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided fur-
          ther, that a trial court may take note of congestion or an emergency without the necessity of a mo-
          tion, 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.
2
 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." U.S.
CONST. amend. VI.
3
 "All courts shall be open; and every person, for injury done to him in his person, property, or reputation,
shall have remedy by due course of law. Justice shall be administered freely, and without purchase; com-
pletely, and without denial; speedily, and without delay." IND. CONST. art. 1, § 12.



                                                       2
tion. The trial court then stated that it would set the present case for trial, and the court reporter
said, "[b]ut, you will have to file a transport order to get him back." Tr. at 110. It is not clear
from the record whether this statement was made to the judge, the prosecuting attorney, or the
defense counsel, but defense counsel responded, "[t]o get him back, okay." Id. The trial court
then scheduled a bench trial in this case for January 23, 2013. A trial on this date would have
occurred 411 days after the defendant's arrest, but was nevertheless within the limitations of Rule
4(C) because of delays attributable to the defendant.


          On January 23, 2013, the State and defense counsel were present and ready for trial, but
the defendant was absent. The State argues that it was failure of the defense to prepare the
transport order and the resulting non-appearance by the defendant for trial that caused delay at-
tributable to the defendant which should toll the one-year limitation in Rule 4(C). The defendant
contends that, because he was incarcerated at the Department of Corrections on January 23, 2013
and was thus unable to appear for trial, any resulting delay should not be attributable to him. We
need not resolve this issue because these two alternatives each lead to the same result.


          First, if the defendant's failure to appear is not counted as delay caused by his act, then
his trial was not held within the time period prescribed by Rule 4(C), even accepting the State's
claimed attribution of other delays to the defendant. The defendant was arrested December 9,
2011 and brought to trial October 8, 2014–1034 days later. Without attribution to the defendant
of any delay associated with his failure to appear for trial on January 23, 2013, the other delays
alleged by the State as attributable to the defendant would toll for 258 days the one year period
under Rule 4(C), which thus would have required the defendant's trial to commence by August
23, 2013. 4 But the trial did not begin until October 8, 2014, violating Rule 4(C). 5


          Second, if the defendant's non-appearance at his January 23, 2013 trial date is deemed to
commence a delay attributable to him, the duration of that delay would include a reasonable time


4
    While 2012 was a leap year, for this case we have used 365 days per year in our Rule 4(C) calculations.
5
  The State does argue that some later delays are also attributable to the defendant, but we do not consider
them here as they come after August 23, 2013–the last day on which the defendant's trial could have be-
gun under Rule 4(C) if the failure to appear attributed no time to the defendant.


                                                      3
for the trial court to take action to reschedule his trial date. The defendant's failure to appear
placed both the trial court, which is responsible for the management of its docket, and the prose-
cution, which has an interest in avoiding discharge under Criminal Rule 4, on notice that a new
trial date was necessary, including the necessity of transporting the defendant from prison for
trial. As of the scheduled trial date of January 23, 2013, and assuming the State's claimed attrib-
ution of 258 days in delays to the defendant, there remained ample time—212 days plus the rea-
sonable time attributable to the defendant—within which to bring the defendant to trial. Follow-
ing the defendant's non-appearance for trial on January 23, 2013, however, neither the State nor
the trial court took any action for 518 days. On June 25, 2014, at a hearing on the defendant's
motion for discharge under Rule 4(C) filed April 23, 2014, the trial court finally took action to
schedule a new trial date. Thus, even if the defendant's non-appearance for trial is deemed to
have initiated a delay attributable to him for Rule 4(C) purposes, such delay extended only for a
reasonable period of time within which the court could take action to reschedule a new trial date
and secure transportation of the incarcerated defendant for trial. The reasonable period certainly
did not extend for more than 306 days as would have been required for the defendant's trial to
comply with Rule 4(C). The defendant, then, was not brought to trial within the period required
by Rule 4(C).


       Therefore, whether declining to attribute delay to the defendant for failing to arrange for
his transportation from Department of Correction custody and to appear for his trial scheduled
for January 23, 2013, or whether attributing such failures to the defendant under Rule (C) and
permitting the trial court and the State a reasonable time thereafter to bring the defendant to trial,
the defendant was entitled to discharge pursuant to Indiana Criminal Rule 4(C), and his motion
should have been granted.


       We reverse the denial of the defendant's motion for discharge and remand to the trial
court to grant the motion pursuant to Criminal Rule 4(C).




Rush, C.J., and Rucker, David, and Massa, JJ., concur.




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