MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Sep 08 2017, 6:09 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Dennis Burgher                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dennis Burgher,                                          September 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1608-CR-1823
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G03-1602-F3-7208



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017        Page 1 of 4
                                             Case Summary
[1]   Dennis Burgher, pro se, appeals the trial court’s denial of his motion for

      discharge under Indiana Criminal Rule 4. We dismiss.


                                                     Issue
[2]   Burgher raises several issues, but we address only a dispositive issue raised by

      the State, which we restate as whether Burgher’s appeal should be dismissed

      because it is moot.


                                                     Facts
[3]   In 2016, the State charged Burgher with Level 3 felony rape, Level 5 felony

      battery, Level 5 felony criminal confinement, and Level 5 felony strangulation.

      On March 2, 2016, Burgher filed a request for a speedy trial, and the trial court

      set his trial for May 5, 2016. The State filed a request for DNA testing, which

      the trial court granted. On April 14, 2016, the State filed a motion for a

      continuance under Indiana Criminal Rule 4(D), which the trial court granted.

      The trial court then set the trial for July 14, 2016. On July 7, 2016, Burgher

      filed a motion for discharge pursuant to Criminal Rule 4(B), which the trial

      court denied.


[4]   On July 14, 2016, Burgher sought to add a witness, but his trial counsel had

      been unaware of the witness or the substance of her testimony. The trial court

      reset the trial for July 21, 2016, and charged the delay to Burgher. On July 21,

      2016, because an essential witness was not present, the State moved to dismiss


      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017   Page 2 of 4
      the charges against Burgher, which the trial court granted. Burgher now

      appeals.


                                                  Analysis
[5]   On appeal, Burgher argues that the trial court erred by denying his motion for

      discharge, that the cause should have been dismissed with prejudice on July 21,

      2016, and that his trial counsel was ineffective. However, the State argues that

      Burgher’s appeal is moot and that we should dismiss. We agree.


[6]   Our courts have held:


              “[W]here the principal questions at issue cease to be of real
              controversy between the parties, the errors assigned become
              moot questions and this court will not retain jurisdiction to
              decide them. Stated differently, when we are unable to provide
              effective relief upon an issue, the issue is deemed moot, and we
              will not reverse the trial court’s determination where absolutely
              no change in the status quo will result.”


      Breedlove v. State, 20 N.E.3d 172, 174 (Ind. Ct. App. 2014) (quoting Bell v. State,

      1 N.E.3d 190 (Ind. Ct. App. 2013)), trans. denied. The trial court here dismissed

      the charges against Burgher at the State’s request. Even if we were to address

      Burgher’s arguments, “absolutely no change in the status quo” would result. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017   Page 3 of 4
      Consequently, we are unable to provide effective relief to Burgher on his

      arguments, and the issue is moot.1


[7]   We acknowledge that, “although moot cases are usually dismissed, Indiana

      courts have long recognized that a case may be decided on its merits under an

      exception to the general rule when the case involves questions of ‘great public

      interest.’” Id. (quoting In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991)). “‘Cases

      in this category typically raise important policy concerns and present issues that

      are likely to recur.’” Id. (quoting Mosley v. State, 908 N.E.2d 599, 603 (Ind.

      2009)). This case does not present an important policy question, and we

      decline to address Burgher’s arguments on their merits.


                                                    Conclusion
[8]   Burgher’s appeal is moot, and we dismiss.


[9]   Dismissed.


      Baker, J., and Crone, J., concur.




      1
        To the extent Burgher argues that the State could refile the charges, we conclude that the issue is not ripe for
      review. “Ripeness relates to the degree to which the defined issues in a case are based on actual facts rather
      than on abstract possibilities, and are capable of being adjudicated on an adequately developed record.”
      Indiana Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). The possibility that
      the State could refile charges against Burgher is an abstract possibility not capable of being adjudicated at this
      time.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017              Page 4 of 4
