MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                         Oct 23 2015, 8:37 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kimberly Gaskins,                                        October 23, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1501-CR-5
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jose D. Salinas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G14-1301-FD-3989



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015   Page 1 of 11
                                             Case Summary
[1]   In January 2013, a police officer stopped Kimberly Gaskins for a nonworking

      headlight, found drugs in her vehicle, and arrested her. The State charged

      Gaskins with class D felony possession of methamphetamine and two counts of

      class D felony possession of a controlled substance. In September 2014,

      Gaskins filed a motion for discharge under Indiana Criminal Rule 4(C),

      claiming that she had not been tried within one year of being charged,

      excluding delays attributable to her or to court congestion or emergency. The

      trial court denied the motion. In December 2014, almost two years after

      Gaskins was charged, a bench trial was held and the trial court found her guilty.


[2]   On appeal, Gaskins argues that the trial court erred in denying her motion for

      discharge. She also argues that the drugs found in her vehicle were seized in

      violation of her state and federal constitutional rights. We find her first

      argument dispositive and therefore vacate her convictions.


                                 Facts and Procedural History
[3]   Criminal Rule 4(C) reads as follows:


              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

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015   Page 2 of 11
              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.


      And Criminal Rule 4(F) reads in pertinent part, “When a continuance is had on

      motion of the defendant, or delay in trial is caused by his act, any time

      limitation contained in this rule shall be extended by the amount of the

      resulting period of such delay caused thereby.”


[4]   On January 16, 2013, an Indianapolis police officer stopped Gaskins for a

      nonworking headlight, found drugs in her vehicle, and arrested her. Her initial

      hearing was scheduled for January 18, but the State moved to continue it until

      January 23. On January 20, the State charged Gaskins with class D felony

      possession of methamphetamine and two counts of class D felony possession of

      a controlled substance. 1 At the initial hearing on January 23, the trial court

      entered a not guilty plea for Gaskins. Gaskins then acquiesced to several

      pretrial conferences. At the June 12 conference, Gaskins requested a




      1
        The State asserts that Gaskins was charged on January 18. The chronological case summary indicates that
      the probable cause affidavit was filed on that date, and the charging information is dated January 20.
      Appellant’s App. at 6, 19.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015          Page 3 of 11
      suppression hearing, which the trial court scheduled for July 31. Gaskins filed a

      written motion to suppress on June 19.


[5]   On July 31, the State requested a continuance, to which Gaskins did not object,

      and the trial court rescheduled the hearing for September 25. Pursuant to

      successive continuances requested by the State, the trial court rescheduled the

      hearing for January 8, 2014. On January 8, due to what the trial court later

      characterized as a “mistake by the Court,” Tr. at 127, the hearing was

      rescheduled for February 26. The suppression hearing was finally held on

      February 26, and the trial court took the matter under advisement.


[6]   On April 9, the trial court denied Gaskins’s motion to suppress as to the

      physical evidence seized during the traffic stop and granted it as to statements

      she made to the arresting officer. The court also set a trial date of August 11.

      On April 16, Gaskins filed an objection to the trial date “as appearing to be

      outside the time constraints of Criminal Rule 4.” Appellant’s App. at 63. 2 Both

      parties filed motions to correct error regarding the suppression order, which the

      trial court denied on May 12.


[7]   On June 11, the State filed a motion to certify the suppression order for

      interlocutory appeal under Indiana Appellate Rule 14(B), which the trial court




      2
        The objection was file-stamped by the circuit court clerk but was not recorded in the chronological case
      summary (“CCS”). On May 20, 2014, Gaskins filed a motion to correct the record. The trial court later
      acknowledged that Gaskins had objected to the trial date, Tr. at 72, but the CCS has not yet been corrected to
      reflect this.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015             Page 4 of 11
      granted on June 13, before Gaskins filed her response. 3 The State did not seek

      and the trial court did not order a stay of its proceedings. Cf. Ind. Appellate

      Rule 14(H) (“An interlocutory appeal shall not stay proceedings in the trial

      court unless the trial court or a judge of the Court of Appeals so orders.”). At a

      hearing on June 25, the trial court vacated the August 11 trial date based on its

      belief that the State’s “interlocutory [appeal] may take some time.” Tr. at 74.


[8]   On August 12, the trial court received an August 8 order from this Court

      denying the State’s motion to accept jurisdiction of the interlocutory appeal. At

      a hearing on August 13, the trial court set a trial date of October 20. On

      September 10, Gaskins filed a motion to correct record stating that at the

      August 13 hearing she “immediately objected as the trial date was outside one

      year from the filing of charges,” that the court “specifically directed that [her]

      objection be noted on the chronological case summary and made a part of the

      record,” but that the entry for that date “does not note [her] objection to the




      3
        Appellate Rule 14(B)(1)(d) gives a party fifteen days to file a response to a motion to certify an interlocutory
      order. Gaskins filed her response on June 16, only five days after the State served its motion. Under Indiana
      Code Section 35-38-4-2(5), the State may appeal “[f]rom an order granting a motion to suppress evidence, if
      the ultimate effect of the order is to preclude further prosecution of one (1) or more counts of an information
      or indictment.” In her response, Gaskins pointed out that the State had “not alleged that [the trial court’s]
      ruling precludes further prosecution and it in fact it does not.” Appellant’s App. at 77. Gaskins also pointed
      out that, unlike Appellate Rule 9 with respect to appeals from final judgments, Appellate Rule 14 does not
      specifically indicate that a motion to correct error may extend the thirty-day deadline for filing a motion to
      certify an interlocutory order.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015                 Page 5 of 11
       trial date as being outside one year as it should.” Id. at 97. The State did not

       respond to the motion, and the trial court did not rule on it. 4


[9]    Also on September 10, Gaskins filed a motion for discharge under Criminal

       Rule 4(C), which the State opposed and the trial court denied on November 14.

       The parties filed a jury trial waiver, and trial was ultimately rescheduled for

       December 3, 2014, 689 days after Gaskins was charged. The trial court found

       her guilty, and this appeal ensued.


                                        Discussion and Decision
[10]   Gaskins argues that the trial court erred in denying her motion for discharge.

       She also argues that the drugs found in her vehicle were seized in violation of

       her state and federal constitutional rights. We find the first argument

       dispositive.


[11]   Both the Sixth Amendment of the U.S. Constitution and Article 1, Section 12

       of the Indiana Constitution protect the right of an accused to a speedy trial.

       Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). “The speedy-trial right is a

       fundamental principle of constitutional law that has been zealously guarded by

       our courts.” Id. (citation and quotation marks omitted). “Indiana Criminal

       Rule 4 generally implements the constitutional right of an accused to a speedy




       4
        Gaskins submitted to the trial court a transcript of the August 13 hearing, which supports her version of
       events. Defendant’s Ex. A 10/5/14.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015              Page 6 of 11
       trial.” Id. The purpose of the rule “is not to provide defendants with a

       technical means to avoid trial but rather to assure speedy trials.” Id. at 1028.


[12]   “To resolve a motion for discharge made under Rule 4(C), it is necessary to

       identify only those delays attributable to the defendant and those attributable to

       court congestion or emergency.” Carr v. State, 934 N.E.2d 1096, 1100 (Ind.

       2010).

                The Rule does not involve assessment or attribution of any fault
                or accountability on the part of the State, but generally imposes
                upon the justice system the obligation to bring a defendant to trial
                within a set time period, which is extended by the amount of
                delay caused by the defendant or under the exception for court
                calendar congestion or emergency.


       Id. 5 “We review a trial court’s ruling on a Rule 4(C) motion for abuse of

       discretion.” Curtis v. State, 948 N.E.2d 1143, 1149 (Ind. 2011).


[13]   Gaskins was charged on January 20, 2013. Thus, under Rule 4(C), the justice

       system was obligated to bring her to trial by January 20, 2014. Gaskins was not

       responsible for the continuance of the initial hearing until January 23, and thus

       the Rule 4(C) deadline was unaffected. At the hearing on the motion for

       discharge, the trial court found that by acquiescing to successive pretrial

       conferences, Gaskins was responsible for the delay between the January 23




       5
         Consequently, “[e]mploying the rhetoric of ‘delay chargeable to the State’ should be avoided.” Carr, 934
       N.E.2d at 1100-01. Notwithstanding our supreme court’s admonition in Carr (and Gaskins’s quotation of it
       in her brief), the State employs that rhetoric in its brief.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015           Page 7 of 11
       initial hearing and the June 12 conference, a total of 140 days. Gaskins does

       not challenge this determination on appeal. Thus, the Rule 4(C) deadline was

       extended to June 9, 2014.


[14]   At the June 12 conference, Gaskins requested a suppression hearing, which the

       trial court scheduled for July 31. The trial court found that Gaskins was not

       responsible for this 49-day delay. The State characterizes this as a continuance

       that Gaskins acquiesced to and thus is responsible for. We disagree. See Curtis,

       948 N.E.2d at 1150 (“[A] motion to suppress is not automatically considered a

       delay attributable to the defendant under Rule 4(C): ‘the mere filing of a motion

       to suppress does not of itself engender any delay … within the period of the

       rule.’”) (quoting Moreno v. State, 166 Ind. App. 441, 455 n.10, 336 N.E.2d 675,

       684 n.10 (1975)). “‘[W]hen determining the extent of the delay caused by the

       defendant’s actions, we must proceed on a case-by-case basis.’” Id. (quoting

       Wheeler v. State, 662 N.E.2d 192, 194 (Ind. Ct. App. 1996)) (alteration and

       emphasis in Curtis). “The setting of a trial date is not determinative of what

       delays are chargeable to the defendant, but a pretrial motion’s proximity to a set

       trial date weighs in favor of attributing a delay to a defendant.” Id. (citation

       omitted). Here, the trial court had not yet set a trial date, and Gaskins’s request

       for a suppression hearing was made less than six months after charges were

       filed. These facts weigh in favor of not attributing the delay to Gaskins.


[15]   On July 31, however, Gaskins acquiesced to a continuance until September 25.

       The trial court found her responsible for this 56-day delay, and she does not



       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015   Page 8 of 11
       dispute this finding on appeal. Thus, the Rule 4(C) deadline was extended to

       August 4, 2014.


[16]   Pursuant to successive continuances requested by the State, the trial court

       rescheduled the suppression hearing for January 8, 2014, resulting in a 105-day

       delay. The trial court found that Gaskins was not responsible for this delay,

       and the State does not challenge this on appeal.


[17]   The trial court also found that Gaskins was not responsible for the 49 days

       between January 8 and the February 26 suppression hearing because it made a

       “mistake.” Tr. at 127. The State characterizes the court’s acceptance of

       responsibility as a basis for extending the Rule 4(C) deadline, but it is well

       settled that only court-related delays attributable to congestion or emergency

       may prolong that time limit. Carr, 934 N.E.2d at 1100. Here, the trial court

       made no such findings.


[18]   The trial court determined that Gaskins was not responsible for the 42 days

       between February 26 and April 9, during which it took the motion to suppress

       under advisement. The State makes the same argument as above regarding this

       delay, which we reject for the same reason.


[19]   On April 9, the trial court ruled on the motion to suppress and set a trial date of

       August 11, to which Gaskins timely objected as being past the Rule 4(C)

       deadline of August 4. Cf. Hood v. State, 561 N.E.2d 494, 496 (Ind. 1990)

       (“When a trial court sets a trial date which is beyond a period allowed and the

       defendant is or should be aware that the setting is beyond the time allowed, it is

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015   Page 9 of 11
       his obligation to object at the earliest opportunity so the court can reset the trial

       for a date within the proper period. Failure to voice a prompt objection is

       deemed a waiver of the issue.”). The trial court’s April 9 suppression ruling

       prompted the State to file a motion to correct error and request an interlocutory

       appeal, which in turn prompted the court to vacate the trial date on June 25.

       The trial court found that Gaskins was not responsible for this 77-day delay,

       and the State does not specifically dispute this on appeal.


[20]   Also on June 25, the trial court granted the State’s motion to certify its

       suppression order for interlocutory appeal, and this Court denied the State’s

       motion to accept jurisdiction on August 8. The trial court found that Gaskins

       was not responsible for this 44-day delay. Because the State did not seek and

       the trial court did not order a stay of its proceedings during this period, we

       agree. See Pelley v. State, 901 N.E.2d 494, 500 (Ind. 2009) (“[T]he time for an

       interlocutory appeal is excluded from Rule 4(C)’s limitation only when trial

       court proceedings have been stayed.”).


[21]   On August 13, the trial court scheduled a trial date for October 20, and Gaskins

       again timely objected. Gaskins filed a motion for discharge on September 10, at

       which point the Rule 4(C) deadline had long since passed. 6 Based on the

       foregoing, we conclude that the trial court abused its discretion in denying the

       motion. Consequently, we vacate Gaskins’s convictions.




       6
           We note that the trial court found that Gaskins was not responsible for any delay after August 8.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015               Page 10 of 11
[22]   Vacated.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-5 | October 23, 2015   Page 11 of 11
