                                                                        Oct 14 2015, 9:28 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Timothy J. Burns                                           Gregory F. Zoeller
      Indianapolis, Indiana                                      Attorney General of Indiana

                                                                 Larry D. Allen
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Travis Allen,                                             October 14, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A05-1410-CR-501
              v.                                                Appeal from the Marion Superior
                                                                Court

      State of Indiana,                                         The Honorable Linda E. Brown,
      Appellee-Plaintiff.                                       Judge

                                                                Cause No. 49F10-1112-CM-86414




      Najam, Judge.




                                        Statement of the Case
[1]   Travis Allen appeals his convictions for operating a vehicle while intoxicated,

      as a Class A misdemeanor; driving with a suspended license, a Class A


      Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015             Page 1 of 13
      misdemeanor; and driving without a license, as a Class C felony; following a

      bench trial.1 Allen presents two issues for our review:


                1.        Whether the trial court erred when it denied his motion for
                          discharge pursuant to Criminal Rule 4(C).

                2.        Whether the delay in bringing him to trial violated his
                          right to a speedy trial as guaranteed by the United States
                          and Indiana Constitutions.


      We affirm.


                                     Facts and Procedural History
[2]   On December 9, 2011, Indiana State Police Trooper Chris Townsend arrested

      Allen for driving while intoxicated. Also on that date, the State charged Allen

      with four offenses related to that incident, and Allen was released on bond.

      Allen subsequently was arrested and jailed for an unrelated offense in Cause

      No. 49G20-1204-FB-25327 (“FB-25327”).2 And on May 15, 2012, pursuant to

      a local rule, the trial court transferred the instant case to the trial court handling

      FB-25327. After Allen pleaded guilty in FB-25327, and after the trial court

      sentenced him to ten years in that case, the instant case was transferred back to

      the original trial court on October 15, 2012. At a pre-trial conference on

      October 16, the trial court scheduled a bench trial for January 23, 2013. During




      1
        The parties do not explain how Allen could be convicted both of driving with a suspended license and
      driving while never having had a valid license. Those two offenses appear to be incompatible.
      2
          The parties do not provide any information about the offense or offenses alleged in that unrelated cause.


      Court of Appeals of Indiana | Opinion 49A05-1410-CR-501      | October 14, 2015                     Page 2 of 13
      that pre-trial conference, Allen notified the trial court that he had just been

      sentenced to ten years in the Department of Correction in the other cause, and

      the court reporter advised Allen and his counsel that his counsel would have to

      file a transport order for Allen to be present at his trial.


[3]   On January 23, 2013, the State and defense counsel were present and ready for

      trial, but Allen was not there.3 The trial court issued a “Rearrest Warrant with

      Bond set in the amount of $5000[.]” Appellant’s App. at 7.


[4]   On September 5, 2013, Allen filed a pro se Verified Petition for Resolution of

      Detainer. On September 10, the trial court struck Allen’s pro se petition

      because he was represented by counsel. And on April 23, 2014, Allen, by his

      counsel, filed his motion to discharge pursuant to Criminal Rule 4(C). The trial

      court denied that motion following a hearing on June 25. Following a bench

      trial on October 8, 2014, the trial court found Allen guilty on all four charges,

      but entered judgment on only three, namely, operating a vehicle while

      intoxicated, as a Class A misdemeanor; driving with a suspended license, a

      Class A misdemeanor; and driving without a license, as a Class C felony. The

      trial court sentenced Allen accordingly. This appeal ensued.




      3
        At the subsequent hearing on Allen’s Criminal Rule 4(C) motion, the State argued that defense counsel did
      not appear to know where Allen was and, in any event, did not notify the court that Allen was incarcerated
      on that date.

      Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015                   Page 3 of 13
                                         Discussion and Decision
                                         Issue One: Criminal Rule 4(C)

[5]   Allen contends that he is entitled to discharge under Indiana Criminal Rule

      4(C). Criminal Rule 4(C) provides that a defendant may not be held to answer

      a criminal charge for greater than one year unless the delay is caused by the

      defendant, emergency, or court congestion. Curtis v. State, 948 N.E.2d 1143,

      1148 (Ind. 2011). We review a trial court’s ruling on a Rule 4(C) motion for

      abuse of discretion. Id. at 1149.


[6]   Allen maintains that, from the time that the charges were filed against him on

      December 9, 2011, until his first trial date on January 23, 2013, there are “294

      days attributable to the State for the delay.”4 Appellant’s Br. at 6. And Allen

      contends that, because “the State and court w[ere] on notice that [Allen] was in

      the Department of Correction[] on January 23, 2013[,] and he was not brought

      to trial until the court set the matter for trial on June 25, 2014[,]” an additional

      502 days of delay are charged to the State, for a total of 796 days charged to the

      State. Id. at 7. In the alternative, Allen contends that he gave written notice to

      the State and the trial court that he was incarcerated on September 10, 2013, 5




      4
        The State contends that it should only be charged with 153 days up to January 23, 2013, but, for ease of
      discussion on appeal, we accept the defendant’s calculations of the delays leading up to January 23, 2013.
      5
          That Verified Petition is file-stamped September 5, 2013.


      Court of Appeals of Indiana | Opinion 49A05-1410-CR-501         | October 14, 2015               Page 4 of 13
      when he filed his Verified Petition for Resolution of Detainer. Thus, he

      alternatively maintains that at least 566 days are chargeable to the State.


[7]   But the State maintains that, because on January 23, 2013, “[n]either the State

      nor the trial court w[as] advised that Allen was still in the DOC, . . . the time

      that follows was attributable to Allen’s actions of failing to appear for trial.”

      Appellee’s Br. at 11. In support of that contention, the State points out that, at

      the June 25, 2014, hearing on the motion for discharge, the trial court stated

      that, had defense counsel informed the trial court on January 23, 2013, that

      Allen was incarcerated on that date, it “would have documented that[,]” and

      there was no such documentation. Tr. at 22. Thus, Allen’s failure to appear at

      his trial was unexplained. Allen’s next contact with the court after the January

      2013 trial date was his pro se September 5, 2013, Verified Petition for

      Resolution of Detainer. In that petition, Allen stated that he was incarcerated.

      However, the trial court struck that petition because Allen was represented by

      counsel. Our supreme court has stated that, “once counsel [is] appointed, [a

      d]efendant sp[eaks] to the court through counsel.” Underwood v. State, 722

      N.E.2d 828, 832 (Ind. 2000). Thus, here, the trial court was not required to

      accept the petition for filing and properly struck it. See id; see also Schepers v.

      State, 980 N.E.2d 883, 887 (Ind. Ct. App. 2012) (holding trial court properly

      denied defendant’s motion to dismiss under Criminal Rule 4(B)(1) where he

      had filed motion pro se while represented by counsel).


[8]   Hence, the first time the State and the trial court received actual notice of

      Allen’s incarceration was on April 23, 2014, when Allen filed his motion for

      Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015   Page 5 of 13
       discharge. The State contends, then, that Allen is charged with the delay from

       January 23, 2013, until April 23, 2014, as well as the delay from April 23, 2014,

       until June 25, 2014, the date of the hearing on Allen’s motion, for a total of 518

       days. The State concedes that it should be charged for the delay from June 25,

       2014, until July 29, 2014, when Allen requested another continuance, which

       represents thirty-four days. The State contends that Allen is charged with the

       thirty-six day delay from July 29, 2014, until September 3, 2014, because of his

       motion to continue his trial, which had been scheduled for August 5, 2014, and

       which the court rescheduled for September 3. Finally, the State is charged with

       thirty-five days from September 3, 2014, until Allen’s trial on October 8, 2014.


[9]    Again, at the October 16, 2012, pre-trial conference, Allen advised the trial

       court, in the presence of the State, that he had just been sentenced to ten years

       in FB-25327. Allen maintains that that notice, in open court, was sufficient

       notice of his whereabouts and he should not be charged with the delay that

       resulted from his failure to appear at his January 23, 2013, trial.


[10]   However, at the October 16, 2012, pre-trial conference, the court reporter

       instructed defense counsel that he would have to file a transport order for

       Allen’s appearance at the trial. In other words, defense counsel was responsible

       for making sure that Allen would appear at his trial, and, on appeal, Allen does

       not explain defense counsel’s failure to obtain a transport order. At the very

       least, defense counsel should have notified the trial court of Allen’s

       incarceration on January 23, 2013, and, again, Allen offers no explanation for

       defense counsel’s failure to explain Allen’s absence on that date. It is well

       Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015   Page 6 of 13
       settled that “the action of a defendant’s counsel is considered the action of the

       defendant” in determining who caused a delay for purposes of Criminal Rule

       4(C). Cook v. State, 810 N.E.2d 1064, 1068 (Ind. 2004). Here, defense counsel’s

       failure to obtain a transport order and failure to explain Allen’s absence is

       attributable to Allen, and Allen is charged with 518 days from January 23,

       2013, until June 25, 2014, the date the trial court denied his motion for

       discharge.6


[11]   The State is charged for thirty-four days from June 25, 2014, until July 29,

       2014, the date that Allen filed a motion to continue his trial. Allen is charged

       for thirty-six days from July 29, 2014, until September 3, 2014, the next

       scheduled date of his trial. The record is silent as to why Allen’s trial was

       continued from September 3, 2014, until it was finally held on October 8, 2014,

       so that is another thirty-five days charged to the State. See Curtis, 948 N.E.2d at

       1151. In all, then, the State is charged with 294 days from December 9, 2011,

       to January 23, 2013; thirty-four days from June 25, 2014, until July 29, 2014;

       and thirty-five days from September 3, 2014, until October 8, 2014; for a total of

       363 days of delay charged to the State, which is less than one year. Thus, we

       hold that Allen was not entitled to discharge under Criminal Rule 4(C), and the

       trial court did not abuse its discretion when it denied that motion.




       6
          Again, the trial court properly struck Allen’s September 5, 2013, Verified Petition for Resolution of
       Detainer because he filed it pro se while he was represented by counsel. Thus, Allen’s attempt to notify the
       trial court of his incarceration on that date was for naught.

       Court of Appeals of Indiana | Opinion 49A05-1410-CR-501    | October 14, 2015                     Page 7 of 13
                                    Issue Two: Constitutional Claims

[12]   Finally, Allen contends that the State’s delay in bringing him to trial violates his

       right to a speedy trial as guaranteed by the United States and Indiana

       Constitutions.


               Although Indiana Criminal Rule 4 generally implements the
               constitutional right of a criminal defendant to a speedy trial,
               thereby establishing time limits and providing for discharge in the
               event that limits are exceeded, our review of Rule 4 challenges is
               “separate and distinct” from our review of claimed violations of
               the speedy trial rights secured by the Sixth Amendment of the
               U.S. Constitution and Article 1, Section 12 of the Indiana
               Constitution.


       Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014) (quoting Austin v. State, 997

       N.E.2d 1027, 1037 n.7 (Ind. 2013)).


               The Sixth Amendment to the U.S. Constitution provides, in
               relevant part, that “[i]n all criminal prosecutions, the accused
               shall enjoy the right to a speedy and public trial,” U.S. Const.
               amend. VI. Article 1, Section 12 of the Indiana Constitution
               states, in applicable part, that “[j]ustice shall be administered
               freely, and without purchase; completely, and without denial;
               speedily, and without delay.” Ind. Const. art. 1, § 12. . . . To
               resolve claimed speedy trial violations under our state
               constitution, we apply the federal speedy trial analysis of Barker v.
               Wingo, 407 U.S. 514, (1972). Crawford v. State, 669 N.E.2d 141,
               145 (Ind. 1996) (citing Fortson v. State, 269 Ind. 161, 379 N.E.2d
               147 (1978)). In Barker, the United States Supreme Court
               identified four factors to balance when considering whether the
               defendant has been deprived of his or her right to a speedy trial:
               (1) length of the delay; (2) reason(s) for the delay; (3) defendant’s
               assertion of his or her right; and (4) prejudice to the defendant.

       Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015   Page 8 of 13
               407 U.S. at 530. The Court characterized this approach as “a
               balancing test, in which the conduct of both the prosecution and
               the defendant are weighed.” Id.


       Id. at 961-62.


[13]   Here, in support of his contention on this issue, Allen states that, “[f]or a delay

       to be this long, witness memories and recollections can be compromised. All

       four [Barker] factors are in [Allen’s] favor and they are not the result of [Allen’s]

       efforts to manipulate the system.” Appellant’s Br. at 10. He maintains that,

       whether the State is charged with 796 days or 566 days, the delay “cannot ever

       be justified or excused.” Id. at 9. And he states that “[h]e told everyone he

       would be in the Department of Correction[],” so there is no excuse for the

       delay. Id.


[14]   But, again, we hold that the State is charged with 363 days, not 566 or 796, and

       Allen is charged with the majority of the delay in scheduling a trial date. And

       Allen has not shown any specific prejudice he has suffered by the delay, other

       than to speculate that “witness memories and recollections can be

       compromised.” Appellant’s Br. at 10. We agree with the State that the

       evidence against Allen is straightforward, and any prejudice to Allen from the

       delay is minimal, if any. We cannot say that the State’s delay in bringing Allen

       to trial violated his constitutional rights to a speedy trial.


[15]   Affirmed.




       Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015   Page 9 of 13
Kirsch, J., concurs.


Barnes, J., dissents with separate opinion.




Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015   Page 10 of 13
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Travis Allen,
       Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                  49A05-1410-CR-501
               v.

       State of Indiana,
       Appellee-Plaintiff.




       Barnes, Judge, dissenting.

[16]   I respectfully dissent. While I believe that trial judges, clerks, prosecutors, and

       other court personnel should not be obligated to do a defendant’s work on his

       or her behalf, I cannot agree with the majority that the first time the State and

       the trial court received actual notice of Allen’s incarceration was April 23, 2014.


[17]   To review, on October 16, 2012, at a pretrial conference, Allen and the trial

       court had a discussion about Allen recently having been sentenced to a ten-year

       term in the Department of Correction (“DOC”) on an unrelated case. See Tr. p.

       108-09. There was also a discussion about whether Allen would be detained in




       Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015            Page 11 of 13
       the Marion County Jail or the DOC while these charges were resolved. See id.

       at 110. This is on the record in a formal proceeding.


[18]   Then, at the January 23, 2013 trial, defense counsel inexplicably did not file a

       transport order or inform the trial court that Allen was incarcerated, and a

       warrant was issued for Allen’s arrest. Even if, as the majority concludes, the

       delay from defense counsel’s failure to obtain a transport order is attributable to

       Allen, I believe that once the trial court and the State were notified of Allen’s

       incarceration, the State was obligated to proceed with the case in a timely

       manner. See Rust v. State, 792 N.E.2d 616, 620 (Ind. Ct. App.) (concluding that

       Criminal Rule 4(C) clock was tolled when defendant failed to appear but

       restarted once the trial court and State were notified of defendant’s

       incarceration in another county), trans. vacated.


[19]   On September 5, 2013, Allen filed a pro se “Verified Petition for the Resolution

       of Detainer” informing the trial court that he was presently incarcerated at the

       Putnamville Correctional Facility. App. p. 23. Although the State asserts this

       was filed in the wrong court, the petition must have made its way to the correct

       court because, on September 10, 2013, the trial court struck the pro se petition

       based on Allen’s representation by counsel. The petition’s certificate of service

       and the trial court’s order indicate that the State was made aware of these

       filings. Although I agree with the majority that the trial court was not required

       to address the merits of Allen’s pro se petition because he was represented by

       counsel, I believe Allen’s petition was sufficient to serve as formal written

       notice of his incarceration as we have previously required from a defendant

       Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015   Page 12 of 13
       incarcerated in one county and facing charges in another. See Werner v. State,

       818 N.E.2d 26, 31 (Ind. Ct. App. 2004) (holding that a defendant facing charges

       in one county is required to provide formal written notice to the State and the

       trial court of his or her incarceration in another county to avoid the tolling of

       the Rule 4(C) clock).


[20]   Allen informed the trial court of his incarceration in person on the record at the

       October 2012 pretrial conference. Even if this actual notice of his incarceration

       was not sufficient to preserve Allen’s Rule 4(C) rights, I believe that Allen’s

       September 5, 2013 pro se petition was. If these attempts at notification were

       not sufficient, what else was Allen to do?


[21]   I know this case arose in Marion County, where the criminal case overload is,

       at times, chaotic; however, Allen did what he could to protect his rights.

       Although I am not a fan of discharges pursuant to Criminal Rule 4(C), I would

       recalculate the time in a manner that reflects the attempt(s) by Allen to notify

       the trial court of his whereabouts. If that results in discharge, so be it.




       Court of Appeals of Indiana | Opinion 49A05-1410-CR-501   | October 14, 2015   Page 13 of 13
