MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Jul 12 2019, 7:41 am
regarded as precedent or cited before any
                                                                                    CLERK
court except for the purpose of establishing                                    Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Dakota A.W. Stinson,                                     July 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2241
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable John M. Plummer
Appellee-Plaintiff.                                      III, Judge
                                                         Trial Court Cause No.
                                                         47D01-1802-F2-228



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019                       Page 1 of 11
[1]   Dakota Stinson (“Stinson”) appeals from Lawrence Superior Court’s denial of

      his Motion for Discharge, arguing that the State failed to bring him to trial

      within the period mandated by Indiana Criminal Rule 4.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On February 9, 2018, Stinson was charged with Level 2 felony burglary and

      Level 3 felony robbery. Three days later, on February 12, 2018, the trial court

      held Stinson’s initial hearing in conjunction with his co-defendants. The

      following exchange occurred at Stinson’s initial hearing:


              THE COURT: Do any of the four of you have any questions
              about the charges, your rights, or the possible penalties? Mr.
              Stinson. Don’t say anything about the facts of the case. I don’t
              want you to do anything that would implicate your guilt or
              innocence.


              THE DEFENDANT: I was going to request a speedy and public
              trial (inaudible).


              THE COURT: We’ll let the Public Defender’s Office know if I
              appoint them. Oh, no. You didn’t ask – yes, you did – for a
              public defender. And I’m assuming, the State, there will be,
              therefore, no offers to Mr. Stinson since he’s asked for a speedy
              trial.


              [STATE]: That is right, Your Honor.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 2 of 11
              THE DEFENDANT: I have three witnesses.


              THE COURT: I don’t care if you’ve got 25 witnesses.


              THE DEFENDANT: (inaudible).


              THE COURT: Tell somebody else about it. So the State has
              acknowledged that it will – there will be no offers related to Mr.
              Stinson given his request. Now we’re not going to make that
              request effective as of today, Mr. Stinson, because you’re going
              to need to talk to your attorney about it. And then they can file
              something with the Court.


      Tr. pp. 4–5.


[4]   A public defender, James Spangler (“Spangler”), was appointed to represent

      Mr. Stinson the next day, on February 13, 2018. Spangler filed his appearance

      on February 22, 2018 and appeared on behalf of Stinson at pre-trial conferences

      held on April 4, April 18, May 7, and May 23 of 2018. Stinson, who was

      housed at the Lawrence County Jail, was only transported to the April 4

      hearing. Spangler stated at the hearings on April 18 and May 23 that Stinson

      was not requesting a trial date. Tr. pp. 12,18. At no time during his

      representation of Stinson did Spangler mention his client’s request for a speedy

      trial to the court.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 3 of 11
[5]   On May 26, 2018, Stinson filed a letter with the court, informing the court that

      Spangler had “resigned from” his case.1 Appellant’s App. p. 24. He also

      informed the court that he had learned from his family, not from his counsel,

      that several pre-trial hearings had taken place.2 Id. Three days later, on May 29,

      2018, the State requested a trial date “no later than August 9, 2018.” Id. at 26.


[6]   On June 13, 2018, the trial court held another pre-trial hearing. At this pre-trial

      hearing, a different public defender, Kristine Kohlmeier (“Kohlmeier”), attended

      the hearing on behalf of the Public Defender’s office. Kohlmeier represented that

      Spangler was no longer employed by the Public Defender’s office, and that the

      agency was searching for a public defender outside of the agency because of

      conflicts and the “high level of the charges.” Tr. p. 22. The court reminded

      Kohlmeier, “[t]he clock is ticking against the Defense for Criminal Rule 4

      purposes. I want you to know that. That the delay here is certainly not

      attributable to the State.” Id. The trial court further admonished her department

      to “get counsel on board ASAP, okay?” Id. at 23. Kohlmeier then declined to

      schedule a trial date and advised the court that she understood that “all delay

      under Criminal Rule 4 from this point forward until another trial date is set is

      attributable to the Defense.” Id. at 24. The parties then set another hearing for




      1
       The court was aware that Spangler moved to Texas on May 30, 2018. Tr. p. 42. However, the CCS does not
      show an entry of withdrawal of appearance for Spangler.
      2
       The record shows that Stinson appeared in person with Spangler for the April 4, 2018 pre-trial conference.
      Tr. p. 8.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019                   Page 4 of 11
      July 16, 2018, and the trial court, at the request of the State, noted for the record

      that Stinson should be transported to court on that date.

[7]   On July 5, 2019, the Lawrence County Public Defender Agency appointed Kay

      Beehler (“Beehler”) to serve as a Special Public Defender representing Stinson.

      On July 9, 2018, Beehler filed her appearance and a Motion to Reduce Bond.

      The trial court held a hearing on the Motion to Reduce Bond on July 16, 2018.

      The court denied the request to reduce his bond, but the following exchange

      occurred between Beehler and the court:


              MS. BEEHLER: Your Honor, and I know this from speaking
              with Madame Prosecutor here this afternoon. Apparently, Mr.
              Stinson has had several settings in this court for which he’s not
              been transported. And I don’t know why. It was way before my
              time.


              THE COURT: Well, he- let me explain here while we have the
              tape recorder running. The – due to the number of incarcerated
              people in this county, when a court sets a pretrial conference, we
              leave it up to the defense attorney to let the Court know whether
              they would like to have the Defendant transported. And if the
              Defense lawyer does not ask for that, then the Court assumes that
              the Defendant is not needed.


              MS. BEEHLER: Sure. Sure.


              THE COURT: So we let Defense counsel tell us whether or not
              the Defendant-


              MS. BEEHLER: Okay.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 5 of 11
              THE COURT: -should be transported.


              MS. BEEHLER: Well, apparently, prior counsel did not ensure
              that he was brought here.


              THE COURT: That has been a problem. I will tell you right now
              on the record. It has been a lengthy problem with the Lawrence
              County Public Defender Agency. And you can take that up with
              Mr. Shircliff as to why. But nonetheless, finish your argument,
              please.


      Tr. p. 36.


[8]   The parties then turned to the court’s calendar. The Court suggested that

      Stinson’s trial be combined with a co-defendant’s trial that was set for speedy

      trial on August 29, 30, and 31. Beehler objected to a joint trial. The court had a

      two-week murder trial beginning on July 23, 2018. Immediately after that trial,

      beginning on August 7, 2018, the court was set for a four-and-a-half-week

      murder trial. The court then had a mandatory conference in the beginning of

      September and was set for another high-level felony trial the following week.

      The court also had a second option set for that same week. The court also

      offered to bump the second setting on September 26 for this matter because the

      other defendant was not in jail; however, Beehler planned to be out of the

      country between September 20 and October 4, 2018. At the conclusion of the

      hearing, and noting court congestion, the court ultimately set this matter for the

      third setting on September 12, 13, and 14 and denied Stinson’s request to

      reduce the bond.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 6 of 11
[9]    On July 19, Stinson, through Beehler, filed a Motion for Discharge pursuant to

       Indiana Criminal Rule 4(B) as well as a supporting memorandum. The State

       filed its response on July 24, 2018. Stinson filed a rebuttal on July 27, and, on

       August 2, the trial court denied Stinson’s request for discharge. Stinson then

       requested that the trial court certify the matter for interlocutory appeal, which

       the trial court granted after a brief hearing on August 29. Our court agreed to

       hear the matter, and the trial court stayed all proceedings during the appeal.


                                      Discussion and Decision
[10]   Indiana Criminal Rule 4(B) provides, in relevant part, as follows:


               If any defendant held in jail . . . shall move for an early trial, he
               shall be discharged if not brought to trial within seventy (70)
               calendar days from the date of such motion, except where a
               continuance within said period is had on his motion, or the delay
               is otherwise caused by his act, or where there was not sufficient
               time to try him during such seventy (70) calendar days because of
               the congestion of the court calendar.


[11]   The broad goal of Criminal Rule 4 is to provide functionality to a defendant’s

       fundamental and constitutionally protected right to a speedy trial. Cundiff v.

       State, 967 N.E.2d 1026, 1027 (Ind. 2012). “It places an affirmative duty on the

       State to bring the defendant to trial, but at the same time is not intended to be a

       mechanism for providing defendants a technical means to escape prosecution.”

       Austin v. State, 997 N.E.2d 1027 (Ind. 2013). When a defendant requests a

       speedy trial pursuant to Criminal Rule 4, the matter:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 7 of 11
               must be assigned a meaningful trial date within the time
               prescribed by the rule, if necessary superseding trial dates
               previously designated for civil cases and even criminal cases in
               which Criminal Rule 4 deadlines are not imminent. We
               recognize, however, that emergencies in either criminal or civil
               matters may occasionally interfere with this scheme. Similarly,
               there may be major, complex trials that have long been scheduled
               or that pose significant extenuating circumstances to litigants and
               witnesses, which will, on rare occasions, justify application of the
               court congestion or exigent circumstances exceptions.


       Id. (quoting Clark v. State, 659 N.E.2d 548, 551–52 (Ind. 1995)). “Crim. Rule

       4(b)’s direction to discharge is mandatory and ‘nothing will prevent the rule’s

       operation save its own exceptions.’” Paul v. State, 799 N.E.2d 1194, 1197 (Ind.

       Ct. App. 2003) (quoting Crosby v. State, 597 N.E.2d 984, 987 (Ind. Ct. App.

       1992)). However, courts recognize that a 4(B) motion “does not necessarily

       present a bright-line approach whereby all other cases must yield to the

       defendant who files a speedy trial motion.” Austin, 997 N.E.2d at 1040.


[12]   Once counsel is appointed, a defendant speaks to the court through counsel.

       Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000). In the absence of a proper

       request to proceed pro se, requiring a trial court to respond to both defendant

       and counsel “would effectively create a hybrid representation to which

       Defendant is not entitled.” Id.


[13]   Stinson argues that he made his request for speedy trial at the initial hearing.

       He further argues on appeal that the State did not make any attempt to

       “expedite prosecution” until Stinson filed a letter with the court on May 26,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 8 of 11
       2018, well after the seventy-day deadline had passed. In support, Stinson relies

       on Robinson v. State, 918 N.E.2d 692 (Ind. Ct. App. 2009). In that case,

       Robinson filed a pro se motion for a speedy trial in accordance with Criminal

       Rule 4(B); however, he was not tried until eighty-four days after his request for

       a speedy trial although he did not make any requests for continuances or cause

       other delays. Id. at 694. Ultimately, Robinson was discharged pursuant to

       Criminal Rule 4(B).

[14]   The State argues that Stinson was represented by counsel and that he spoke to

       the court through counsel, making any delay attributable to him. The State

       relies on Underwood v. State in support. 722 N.E.2d 828 (Ind. 2000). Underwood

       argued that he was entitled to discharge under Crim. R. 4(B) because he was

       not tried within the appropriate time frame because his counsel requested a

       continuance to which Underwood objected. Id. at 832. On review, our supreme

       court noted that the trial court was under no obligation to respond to

       Underwood’s objection to his own counsel’s request for continuance as this

       would “effectively create a hybrid representation to which Defendant is not

       entitled.” Id.


[15]   Here, the trial court did not accept Stinson’s initial pro se request for a speedy

       trial until after he had the opportunity to discuss with counsel. Once counsel

       was appointed, he appeared on Stinson’s behalf, made several requests to

       continue, and made no further mention of a request for speedy trial. As such,

       the delay, assuming we were to accept the request made at the initial hearing,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 9 of 11
       cannot be attributable to the State. Even if we were to accept this request on

       appeal, Stinson, through counsel, then made several requests for continuances

       in the following months.


[16]   Analyzing Stinson’s second pro se request for a speedy trial, even if we were to

       require the trial court accept it because the public defender agency was

       searching for new counsel for him, any further delay again is not attributable to

       the State. Three days after Stinson once again told the court pro se he wanted a

       speedy trial, the State filed a request for a trial date “no later than August 9,

       2018.” Appellant’s App. p. 26. At the next hearing on June 13, 2018, the trial

       court made an attempt to schedule a trial date pursuant to the State’s request,

       and the public defender, who had not filed an appearance on Stinson’s behalf

       but was covering the hearing, declined to schedule a trial date and accepted

       responsibility for any delay on behalf of the defense from that point forward.


[17]   While Stinson made two pro se attempts to request a speedy trial, once at the

       initial hearing and the other in his May 26 letter once Spangler resigned, he is

       bound by the actions of his attorneys. We are dismayed by the delays incurred

       due to a lack of attention to the matter by both the public defender’s office and

       the trial court. However, as the delay is attributable to Stinson through the

       action and inaction of counsel, his remedy, if any, is not through the workings

       of Criminal Rule 4(B).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 10 of 11
                                                 Conclusion

[18]   Because any delay in this matter is attributable to the defense, and not to the

       State, we affirm the trial court’s denial of Stinson’s request for discharge

       pursuant to Criminal Rule 4(B).


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2241 | July 12, 2019   Page 11 of 11
