                                                                           FILED
                                                                     Jun 22 2016, 8:30 am

                                                                           CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Steven Knecht                                              Gregory F. Zoeller
Vonderheide & Knecht, P.C.                                 Attorney General of Indiana
Lafayette, Indiana
                                                           Ian McLean
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ricky E. Arion,                                            June 22, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           08A02-1508-CR-1278
        v.                                                 Appeal from the Carroll Circuit
                                                           Court
State of Indiana,                                          The Honorable Benjamin A.
Appellee-Plaintiff                                         Diener, Judge
                                                           Trial Court Cause No.
                                                           08C01-1309-FB-5



Baker, Judge.




Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016                      Page 1 of 14
[1]   Ricky Arion appeals the trial court’s denial of his motion for discharge. Arion

      was serving a prison sentence for unrelated convictions when he was served

      with a warrant informing him of the present charges. He requested a speedy

      trial on multiple occasions, but the State made no attempt to try him for well

      over a year. The State now contends that because one of its officers failed to

      return the warrant to the trial court after serving it upon Arion, it was absolved

      of its responsibility to bring Arion to trial in a timely fashion in accordance with

      Indiana Criminal Rule 4. The State’s position is contrary to both the text and

      the purpose of the rule, which places an “imperative duty upon the state and its

      officers, the trial courts and prosecuting attorneys.” Zehrlaut v. State, 230 Ind.

      175, 183-84, 102 N.E.2d 203, 207 (1951). Because we find that the delay in

      bringing Arion to trial was unjustifiable and that it exceeded the length of time

      allowable under Indiana Criminal Rules 4(B) and 4(C), we reverse and remand

      with instructions to dismiss the charges.


                                                      Facts     1




[2]   On September 5, 2013, the State filed charges of burglary, sexual battery, and

      criminal confinement against Arion in the Carroll Circuit Court. The next day,

      the court issued a warrant instructing the Sheriff of Carroll County to arrest

      Arion on those charges. Arion was incarcerated in Miami County for prior

      convictions at the time, and the warrant listed the Miami Correctional Facility




      1
       We held oral argument in this case on May 23, 2016. We would like to thank counsel for their exceptional
      written and oral advocacy.

      Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016                      Page 2 of 14
      as his address. On September 10, 2013, a law enforcement officer at the Miami

      Correctional Facility served the warrant on Arion and gave him a copy. For

      unknown reasons, no law enforcement officer returned the served warrant to

      the trial court.2


[3]   A few days later, on September 13, 2013, Arion filed a pro se motion for speedy

      trial under Indiana Criminal Rule 4(B) in the trial court. He did not serve a

      copy of this motion on the State, but wrote on the bottom of the motion “please

      forward a copy to the prosecutor’s office of said motion.” Appellant’s App. p.

      18. On December 16, 2013, after ninety-four days had passed with no trial date

      set, Arion filed a motion to dismiss the charges against him, arguing that he had

      not been brought to trial within seventy days of his filing of a Rule 4(B) motion.

      The trial court denied the motion, holding that because the arrest warrant had

      not been returned as served, Arion was “not being held on the above entitled

      cause” and, therefore, “Rule 4 does not apply.” Id. at 23.


[4]   On January 27, 2014, Arion filed a pro se motion to reconsider, arguing that he

      had been served with the warrant and it was not his duty to ensure that the

      warrant was returned as served to the trial court. This time, he made sure to

      serve the State with a copy. He also attached to the motion a copy of the




      2
       On June 2, 2015, the Miami Correctional Facility sent the trial court a letter stating that it had faxed the
      warrant back to the Sheriff’s Department on September 10, 2013.

      Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016                            Page 3 of 14
      warrant that had been served on him. The trial court summarily denied the

      motion later that day.


[5]   Following this, over a year passed in which the State made no attempt to try

      Arion. On March 26, 2015, Arion sent a letter to the Carrol County Sheriff’s

      Department with a copy of his arrest warrant in an effort to prove that it had

      been served on him. The Sheriff’s Department forwarded this letter to the trial

      court the same day. On April 7, 2015, the trial court issued an order to

      transport Arion to the trial court for an initial hearing to be held on May 22,

      2015.


[6]   At the hearing, counsel was appointed and trial was set for October 5, 2015.

      Arion objected to the trial date, citing Indiana Criminal Rule 4(C). The trial

      court noted the objection. It then issued an order on the initial hearing,

      acknowledging that Arion’s March 26, 2015, letter showed that the warrant had

      been served on Arion on September 10, 2013, but noting that it had still not

      received a return of the warrant.


[7]   On July 10, 2015, Arion, this time by counsel, filed a motion for discharge

      under Rule 4(B), 4(C), and the Sixth Amendment to the United States

      Constitution. The trial court denied the motion on August 17, 2015. The trial

      court found that Arion “likely became aware of his arrest, in this cause of

      action, on September 10, 2013.” Id. at 98. However, the trial court also found

      that it was not aware of the arrest until March 26, 2015, and that it had not seen

      the copy of the warrant that was attached to Arion’s earlier motion. It held:


      Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016   Page 4 of 14
              From this Court’s perspective, temporal restrictions imposed on
              the Court by Indiana Criminal Rule 4 and the U.S. Constitution
              begin when Defendant is arrested. In circumstances where
              Defendant is arrested and the Court is never made aware of the
              arrest, arrest occurs when the Court has actual knowledge that
              Defendant has been arrested on this Court’s warrant.


      Id. at 99-100. The trial court went on to hold that, even though the trial was

      still scheduled seventy days after March 26, 2015, at the initial hearing, Arion

      had objected under Rule 4(C) rather than 4(B). It also held that Arion had not

      been prejudiced by the delay. The trial court certified its order for interlocutory

      appeal and this Court accepted jurisdiction under Indiana Appellate Rule 14(B).


                                    Discussion and Decision
[8]   Arion argues that his right to a speedy trial was violated and that this case

      should have been discharged under Indiana Criminal Rules 4(B), 4(C), and the

      Sixth Amendment to the United States Constitution. As we believe that Rule 4

      provides a sufficient basis for disposing of this case, we need not address

      Arion’s constitutional arguments. However, because “[t]he broad goal of

      Indiana’s Criminal Rule 4 is to provide functionality to a criminal defendant’s

      fundamental and constitutionally protected right to a speedy trial,” we begin

      our discussion with a few words about that right. Austin v. State, 997 N.E.2d

      1027, 1037 (Ind. 2013).


[9]   The Sixth Amendment to the United States Constitution begins: “In all

      criminal prosecutions, the accused shall enjoy the right to a speedy and public

      trial . . . .” The United States Supreme Court has recognized this right as “one

      Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016   Page 5 of 14
       of the most basic rights preserved by our Constitution.” Klopfer v. North

       Carolina, 386 U.S. 213, 226 (1967). Speedy trials serve not only to benefit

       criminal defendants; “society [also] has a particular interest in bringing swift

       prosecutions.” Barker v. Wingo, 407 U.S. 514, 527 (1972). Because “society’s

       representatives are the ones who should protect that interest,” the Sixth

       Amendment places an affirmative duty on the State to act. Id. at 527, 529 (“[a]

       defendant has no duty to bring himself to trial”; “the primary burden [is] on the

       courts and the prosecutors”). The State must act diligently and in good faith

       when performing this duty. Smith v. Hooey, 393 U.S. 374, 383 (1969); see also

       Klopfer, 386 U.S. at 219 (Sixth Amendment protects “against an unjustified

       postponement of trial”).


[10]   Given the nature of Arion’s case, it is important to note that the fact that he was

       incarcerated for a separate conviction at the time he was charged with the

       present offenses is not important. The United States Supreme Court has

       recognized that defendants incarcerated for unrelated reasons still retain an

       interest in being tried promptly on new charges. Smith, 393 U.S. at 377-78;

       Strunk v. United States, 412 U.S. 434, 439-40 (1973). “The fact is that delay in

       bringing such a person to trial on a pending charge may ultimately result in as

       much oppression as is suffered by one who is jailed without bail upon an

       untried charge.” Smith, 393 U.S. at 378.3




       3
        See the paragraphs that follow for a thorough explanation of the reasoning behind this conclusion. Smith,
       393 U.S. at 378-80.

       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016                        Page 6 of 14
[11]   Indiana Criminal Rule 4 seeks to ensure that the State provides defendants with

       a speedy trial as mandated by the Constitution. The Rule is divided into several

       parts, two of which are relevant here. Rule 4(B) provides that


               If any defendant held in jail on an indictment or an affidavit 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 . . . .


       Rule 4(C), which applies regardless of whether the defendant has moved for a

       speedy trial, provides that

               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 . . . .


       Thus, a defendant must be tried within one year of arrest, unless the defendant

       specifically moves for a speedy trial, in which case he must be tried within

       seventy days of the motion. The rule provides an exception for when a

       continuance is made on the defendant’s motion or where there was not

       sufficient time to try the defendant because of congestion of the court calendar,

       but neither exception is applicable in this case. Crim. R. 4.


[12]   On September 13, 2013, after having been read the charges, Arion moved for a

       speedy trial under Rule 4(B). Both the State and the trial court seem to

       acknowledge that Arion’s arrest on these charges occurred when he was read

       the warrant. See Appellant’s App. p. 98 (trial court noting that Arion “likely

       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016     Page 7 of 14
       became aware of his arrest, in this cause of action, on September 10, 2013”);

       Appellee’s Br. p. 16 (State referring to the reading of the warrant as a “fact[]

       indicating that Arion’s present charges were subject to Rule 4(B)”). In any

       event, the State does not argue that Arion was never being held on these

       charges; rather, it contends that the Rule 4 clock did not start ticking until the

       trial court gained actual knowledge of Arion’s arrest. And it believes that the

       trial court could only have had actual knowledge of Arion’s arrest once the

       warrant was returned.4


[13]   We disagree. Rule 4 places the burden on the State to bring a defendant to trial

       within the relevant time period and the State is relieved from that duty “only for

       a delay caused by the defendant’s own act or a continuance had on the

       defendant’s own motion.” Rust v. State, 792 N.E.2d 616, 618 (Ind. Ct. App.

       2003). The State’s proposed actual knowledge requirement would remove its

       burden entirely so long as it failed to inform the trial court of a defendant’s

       arrest. But failing to inform the trial court of a defendant’s arrest is error, and

       the State’s attempt to use this error as justification for the delay would preclude




       4
         The State cites a number of cases in which a defendant was arrested on one charge, released, and arrested
       later on an unrelated charge. Cundiff v. State, 967 N.E.2d 1026 (Ind. 2012); Upshaw v. State, 934 N.E.2d 178
       (Ind. Ct. App. 2010). These cases are clearly distinguishable from the case now before us in that Arion has
       not been released and arrested on an unrelated charge. While they do stand for the proposition that “a
       defendant must be held on the charge for which he requests a speedy trial for Criminal Rule 4(B) to apply[,]”
       they lend no support to the State’s position that the trial court needs to have actual knowledge that the
       defendant is being so held. Cundiff, 967 N.E.2d at 1029.

       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016                         Page 8 of 14
       Arion from availing himself of the protections of Rule 4 through no fault of his

       own.


[14]   It is true we have occasionally found a trial court’s lack of knowledge of a

       defendant’s whereabouts to be relevant for Rule 4(C) purposes.5 Fueston v. State,

       953 N.E.2d 545 (Ind. Ct. App. 2011); Werner v. State, 818 N.E.2d 26 (Ind. Ct.

       App. 2004). These cases stand for the proposition that “[u]nnecessary delays

       will not be deterred by granting discharges in cases where the trial court and

       prosecutor did not have actual knowledge of the defendant’s whereabouts.”

       Fuller v. State, 995 N.E.2d 661, 665 (Ind. Ct. App. 2013). This case, however,

       does not require us to consider the wisdom of this holding. Both the State and

       the trial court were well aware of Arion’s whereabouts, and they at least should

       have been aware that Arion had been arrested on these charges.


[15]   Assuming solely for argument’s sake that the trial court’s awareness of Arion’s

       arrest is relevant to our analysis here, the State cites no authority for the

       proposition, and has failed to otherwise persuade us, that the return of the

       warrant is the sine qua non of Rule 4’s operation. We do not doubt that in many

       cases the return of a warrant will indicate to the trial court that a defendant has

       been arrested and is being held on charges. However, Rule 4 does not cease to

       operate in the event that such a return is not made. This conclusion is




       5
        We have not so held for 4(B) purposes, perhaps because Rule 4(B) requires the defendant to file a motion,
       which necessarily indicates the defendant’s whereabouts.

       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016                        Page 9 of 14
       necessary because, as this case shows, law enforcement officers sometimes

       forget to return warrants.


[16]   Moreover, it is especially clear in this case that the return of the warrant was

       not the only means by which the trial court could have learned of Arion’s

       arrest, as Arion himself made multiple efforts to bring his arrest to the trial

       court’s attention. Other cases in which we have considered the trial court’s lack

       of awareness dealt solely with motions for discharge under Rule 4(C), which

       does not require an initial motion on the part of the defendant. But because

       Arion initially sought the protections of Rule 4(B), he was required to, and did,

       file a motion with the trial court. Upon receipt of this motion, it should have

       been clear to the trial court that Arion was being held on the new charges. For

       how else would he know to, and why else would he want to, move for a speedy

       trial on those charges? Furthermore, on January 27, 2014, following the trial

       court’s denial of his first motion for discharge, Arion filed a motion to

       reconsider that included a copy of the warrant. This motion was properly filed

       in the trial court and served upon the State. 6




       6
         At oral argument, the State suggested that the trial court could have believed the attached warrant to be a
       forgery because it lacked the signature of the law enforcement officer who served it. Put differently, the State
       argues that the trial court could have believed that Arion was never served with the warrant, but yet was able
       to intuit the correct charges that he anticipated being arrested for, as well as the cause number that those
       charges would be brought under, and draft an exact replica of the yet to be served warrant complete with the
       trial judge’s signature. Needless to say, the suggestion is fanciful. Moreover, the trial court never claimed
       that it believed the warrant to be a forgery. Instead, it took the position that it did not have to read Arion’s
       motion and discover the attached copy of the warrant.

       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016                          Page 10 of 14
[17]   At this point, the State would have us hold that because the trial court “did not

       see” the attached warrant, it lacked the actual knowledge that is supposedly

       prerequisite to Arion’s ability to make use of Rule 4. Appellant’s App. p. 95.

       But it simply must be the case that trial courts have a duty to read motions

       before ruling on them. See Ind. Judicial Conduct Rule 2.5 (“A judge shall

       perform judicial and administrative duties competently, diligently, and

       promptly”); see also Barker, 407 U.S. at 527 n.26 (the trial court is not without

       responsibility for the expeditious trial of criminal cases).


[18]   Finally, the State attaches great significance to the fact that Arion was not

       actually ordered to be transported to Carrol County until April 7, 2015. It cites

       State ex rel. Johnson v. Kohlmeyer, which involved a defendant who was

       incarcerated in Johnson County when he was indicted on unrelated charges in

       Marion County. 261 Ind. 244, 301 N.E.2d 518 (1973), reh’g denied 261 Ind.

       244, 303 N.E.2d 661. Our Supreme Court held that, for Rule 4(A) purposes,

       the clock did not start ticking until the defendant was returned to Marion

       County. 303 N.E.2d at 663. However, necessary to the Court’s holding in that

       case was the fact that the charges in Johnson County were pending at the time

       the Marion County charges were brought. Id. The Court noted that the

       defendant could not be tried for both crimes at the same time and, “with regard

       to the practical administration of justice,” held that “[t]he authorities of

       Johnson County were entitled to carry out their duties pursuant to the warrant

       issued in that county before surrendering the relator to Marion County.” Id.




       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016   Page 11 of 14
       This case is clearly distinguishable. Here, no other county had any interest in

       prosecuting Arion and therefore the delay was not a practical necessity.


[19]   The State also relies on Landrum v. State, in which our Supreme Court held that,

       “when a defendant is incarcerated in another county on unrelated charges,

       ‘arrest’ for purposes of Ind. R. Crim. P. 4(A) and (C) does not occur until his

       return is ordered by the court wherein the second charges have been filed.” 428

       N.E.2d 1228, 1230 (Ind. 1981). We first note that this holding is explicitly

       limited to Rules 4(A) and 4(C). But furthermore, we do not read Landrum to

       suggest that a trial court may, for no practical reason, delay ordering the return of

       a defendant who is incarcerated elsewhere at the time he is charged with new

       crimes. This Court has previously disapproved of “a blanket policy to sit back

       and wait for a defendant to complete his sentence in a foreign jurisdiction.”

       Fisher v. State, 933 N.E.2d 526, 531 (Ind. Ct. App. 2010). It should also be

       noted that the warrant at issue in this case effectively orders Arion’s transfer to

       Carroll County and the trial court believed that the law enforcement officer

       serving the warrant was, in fact, required to return Arion to Carroll County

       upon serving it. Appellant’s App. p. 17, 96. If further paperwork needed to be

       completed by the State or the trial court to effectuate Arion’s transfer in this

       case, the State has provided no explanation for why that was not done, nor

       should Arion be penalized for the error.


[20]   Reluctance to discharge a defendant who had been accused of serious crimes is

       understandable. We pause to note, however, that the seriousness of the

       accusations against Arion is irrelevant to, and should have played no part in,

       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016   Page 12 of 14
       the trial court’s Rule 4 analysis. As we have previously observed, speedy trials

       serve not only the interests of criminal defendants, but the interests of the whole

       of society. We are confident that the alleged victims of these crimes hoped to

       see the alleged perpetrator promptly tried. But this was simply all the more

       reason for the State to comply with the rule. If Rule 4 is to continue to serve as

       an effective “incentive . . . for prompt adjudication of criminal prosecutions,”

       we cannot relax its requirements whenever the disappointment occasioned by

       discharge is particularly great. Poore v. State, 685 N.E.2d 36, 41 (Ind. 1997).

       The State has provided us with no practical justification for the delay here, and

       all evidence indicates that it could have brought Arion to trial in a timely

       fashion had it chosen to.


[21]   We acknowledge that this case presents a factual scenario with which we have

       apparently not dealt before. Accordingly, we think it wise to confine our

       holding to the facts presented by this case and avoid making unnecessarily

       broad pronouncements. That being said, here we are certain that the clock

       began ticking for purposes of Rules 4(B) and 4(C) at the very least by January

       27, 2014—that being the date that Arion filed his motion to reconsider that

       included a copy of the warrant and was properly filed in the trial court and

       served upon the State—as after that date the trial court and the State should

       have been aware that Arion was being held on the charges and was requesting a

       speedy trial. Well over a year passed from that time, during which Arion

       caused no delay, but was not brought to trial, until the time at which he filed a




       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016   Page 13 of 14
       motion for discharge on July 10, 2015. Consequently, the trial court erred in

       denying that motion.


[22]   The judgment of the trial court is reversed and remanded and the trial court is

       instructed to dismiss the State’s charges against Arion for failure to bring him to

       trial in accordance with Rules 4(B) and 4(C).


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 08A02-1508-CR-1278 | June 22, 2016   Page 14 of 14
