                                                                      Sep 10 2013, 5:36 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER                       GREGORY F. ZOELLER
Crown Point, Indiana                         Attorney General of Indiana

                                             HENRY A. FLORES, JR.
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

KELVIN FULLER,                               )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )    No. 45A03-1212-CR-520
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Salvador Vasquez, Judge
                            Cause No. 45G01-0708-FB-82


                                 September 10, 2013

                            OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Kelvin Fuller (Fuller), appeals the trial court’s denial of his

motion to discharge pursuant to Indiana Rule of Criminal Procedure 4(C).

       We affirm.

                                          ISSUE

       Fuller raises one issue which we restate as: Whether the trial court abused its

discretion by denying his motion to discharge in accordance with Ind. Crim. Rule 4(C).

                        FACTS AND PROCEDURAL HISTORY

       On August 3, 2007, the State filed an Information in Lake County superior court,

charging Fuller with Count I, robbery, a Class B felony, Ind. Code § 35-42-5-1; Count II,

confinement, a Class C felony, I.C. § 35-42-3-3; Count III, strangulation, a Class D

felony, I.C. § 35-42-2-9; and Count IV, intimidation, a Class D felony, I.C. § 35-45-2-1.

At the time the State filed the Information, Fuller was at large and the State requested that

a warrant be issued for his arrest. On December 15, 2008, Fuller was convicted of bank

robbery in Wyoming. Around January 9, 2009, Lake County, Indiana was notified that

Fuller was incarcerated in Laramie County, Wyoming. As a result, on January 13, 2009,

Lake County prosecutors sought his extradition by initiating interstate rendition

proceedings. However, instead of being extradited to Lake County, Fuller was convicted

of aggravated assault in Laramie County, Wyoming and sentenced to “not less than nine

(9) years and not more than ten (10) years” in the Wyoming Department of Correction.

(Appellant’s App. p. 39). Thereafter, On May 15, 2009, Fuller was extradited to Indiana.



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On June 17, 2009, Doug Barnes, the Unit Team Case Manager of the Hamilton County

Sheriff’s Department, read Fuller the Lake County warrant while also serving him with a

Hamilton County warrant. On April 30, 2010, Fuller was convicted of escape in LaPorte

County, Indiana and sentenced to four years in the Indiana Department of Correction.

Then, on September 21, 2009, February 2011, and May 2011, Fuller attended hearings in

Hamilton County on unrelated charges and was sentenced to four years executed. On

July 29, 2010, Fuller also appeared in Madison County court on unrelated charges.

       On June 13, 2012, Fuller filed a motion to discharge the instant charges, which

originated in Lake County, pursuant to Crim. R. 4(C). On July 6, 2012, the State filed its

motion in opposition and the trial court denied Fuller’s motion the same day. On August

15, 2012, an initial hearing was held where Fuller was served with the arrest warrant. On

October 11, 2012, Fuller filed a motion to reconsider the trial court’s denial of his request

for discharge. On October 17, 2012, after a hearing, the trial court denied the motion to

reconsider and certified its ruling for interlocutory appeal. On February 4, 2013, we

accepted jurisdiction over the interlocutory appeal.

       Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       Fuller argues that the trial court abused its discretion by denying his motion to

discharge pursuant to Crim. R. 4(C), which provides:

       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


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       was not sufficient time to try him during such period because of congestion
       of the court calendar. . . . Any defendant so held shall, on motion, be
       discharged.

Criminal Rule 4 implements the defendant’s constitutional right to a speedy trial. State v.

Jackson, 857 N.E.2d 378, 380 (Ind. Ct. App. 2006). Under this rule, the State has an

affirmative duty to bring the defendant to trial within one year of being charged or

arrested, subject to the listed exceptions. Cook v. State, 810 N.E.2d 1064, 1065 (Ind.

2004). The defendant has no obligation to remind the court of the State’s duty, nor is he

required to take any affirmative action to see that he is brought to trial within the

statutory time period. State v. Smith, 495 N.E.2d 539, 541 (Ind. Ct. App. 1986). When a

defendant makes a motion for discharge pursuant to Criminal Rule 4, the burden is on the

defendant to show that he has not been timely brought to trial and that the defendant is

not responsible for the delay. Martin v. State, 419 N.E.2d 256, 259 (Ind. Ct. App. 1981).

       Focusing on the start date of the one-year time period under Crim. R. 4(C), Fuller

argues that the “commencement of extradition proceedings constitutes an arrest in that it

is an order for a defendant’s return by the charging court.” (Appellant’s Br. p. 5). As

such, he maintains that he was in the “custody of the Indiana Department of Correction

for more than three years before he filed his [m]otion to [d]ismiss and the State took any

action on the case.” (Appellant’s Br. p. 5).

       In Sweeney v. State, 704 N.E.2d 86, 100 (Ind. 1998), our supreme court held that

the Crim R. 4(C) clock begins when the defendant has been brought within Indiana’s

jurisdiction and control: “[A] defendant being brought to Indiana is equivalent to an

‘arrest’ and thus the one[-]year period for determining a violation of Crim. R. 4(C)


                                               4
commence[s][.]” Likewise, Indiana has long held that Crim. R. 4 does not apply when a

person is incarcerated in a foreign jurisdiction. Fisher v. State, 933 N.E.2d 526, 529 (Ind.

Ct. App. 2010). Accordingly, Fuller’s Crim. R. 4(C) clock commenced on May 15, 2009

when he returned to Indiana’s jurisdiction.

       However, attempting to toll the one-year statutory term, the State now contends

that “[b]ecause the Lake County Prosecutor’s Office and the Lake County courts did not

have actual notice of [Fuller’s] whereabouts until approximately June 13, 2012, when he

filed his motion to dismiss, the trial court properly denied [Fuller’s] motion for

discharge.” (Appellee’s Br. p. 8).

       In support of its argument, the State relies on Werner v. State, 818 N.E.2d 26 (Ind.

Ct. App. 2005), trans. denied. Werner was arrested in Randolph County and charged in

September 2000. Id. at 27. He appeared at his initial hearing where he requested a

continuance.   Id. at 28.   The trial court granted the continuance and subsequently

rescheduled several more times. Id. In November 2000, Werner was arrested in Wayne

County, and someone called the Randolph County clerk’s office to inform the office of

Werner’s incarceration. Id. When Werner failed to appear for a hearing in January 2001,

the Randolph County court rescheduled again. Id. Werner’s bond agent later called the

bailiff and informed him that Werner was incarcerated in Wayne County. Id. After

further delays, Werner filed a motion for discharge pursuant to Crim. R. 4(C) in March

2003. Id. The trial court denied the motion. Id. On appeal, the State argued that Werner

should be charged with 142 days—the time that passed between January 2001 when he

failed to appear for his initial hearing as he was incarcerated in Wayne County and the


                                              5
date when he was released from Wayne County jail—because Werner had failed to

provide written notice that he was incarcerated in Wayne County. Id. at 30.

       Noting that Werner’s case in Randolph County was midstream when he was

incarcerated in Wayne County, i.e, Werner had been arrested, charged and appeared in

Randolph County by the time he was arrested in Wayne County, we held that Werner was

required to provide formal written notice of his incarceration to the trial court and the

State to avoid tolling of the Crim. R. 4(C) clock. Id. at 31. Otherwise, the Werner court

reasoned, there is simply no way to determine whether sufficient notice was given to the

trial court to notify it of the defendant’s whereabouts. Id. “Trial courts have substantial

case loads and complicated dockets to manage, and if we did not require that litigants

communicate with each other and the court formally and in writing, the system would

soon devolve into chaos.” Id. As such, the Werner court concluded that the Rule 4(C)

clock tolled for 142 days. Id. at 32. We find Werner to be inapposite as Fuller’s Lake

County case was not midstream when he was extradited to Indiana. In fact, Fuller had

not yet even appeared in the trial court.

       More on point is Fueston v. State, 953 N.E.2d 545 (Ind. Ct. App. 2011). Fueston

was arrested in Jay County and charged with theft. Id. at 546. While out on bond, he

failed to appear at his pre-trial conference and he was later arrested in Delaware County

on an unrelated charge. Id. Fueston remained incarcerated in Delaware County and no

action was taken in Jay County until Fueston, acting pro se, filed a motion requesting

final disposition of charges/detainers in his Jay County case. Id. Fueston was appointed




                                            6
counsel, who filed a motion for discharge under Crim. R. 4(C), which was denied by the

trial court. Id.

       Presenting evidence indicating that there had been a facsimile communication

between the Jay County and Delaware County jails, Feuston argued, among others, that

Jay County was aware of his whereabouts and could have brought him to trial within the

one-year period. Id. at 551. We disagreed and held that “the knowledge of a police or

correctional officer should not be imputed to the trial court or prosecutor in these

circumstances.” Id. We concluded that the purpose of Crim. R. 4(C) is to promote early

trials and not to discharge defendants. Id. Unnecessary 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. Id. “This is true regardless of whether some

other agent of the State has this knowledge.” Id.

       In a separate concurrence in result, Chief Judge Robb disputed the soundness of

the actual knowledge requirement by the trial court and prosecutor and instead cautioned

that the issue of notification is extremely fact sensitive. Id. at 553. She noted that if there

is indisputable evidence that officials at the Jay County jail were aware Feuston was

incarcerated in the Delaware County jail during the pendency of his Jay County case and

indisputable evidence of when they became aware of Feuston’s incarceration, the trial

court and prosecutor would be sufficiently notified of the defendant’s whereabouts to

commence the Rule 4(C) clock as of that date. Id.

       Similarly, here, Fuller is pointing to what purports to be a facsimile

communication sent by the Lake County “Sheriff Warrants” to “Doug Barnes Del” on


                                              7
May 22, 2009. (Appellant’s App. p. 81). The facsimile details the Lake County cause

number, charges and the fact that a warrant was issued for Fuller’s arrest. Although the

remark section of the facsimile indicates that Fuller will be “going to Madison Co, IN

first” after being extradited to Indiana, there is no notation indicating when this would

occur. (Appellant’s App. p. 81). The communication fails to indicate who sent it, at

whose direction, and for what reason. Although the evidence reflects that Doug Barnes,

the Unit Team Case Manager of the Hamilton County’s Sheriff’s Department read Fuller

the Lake County warrant while also serving him with a Hamilton County warrant, this

fact does not reflect on the knowledge of the Lake County prosecutor or trial court.

       It is Fuller’s burden on appeal to give us a record that supports his claims. See

Delao v. State, 940 N.E.2d 849, 852 (Ind. Ct. App. 2011). At best, Fuller presented us

with some evidence suggesting that Lake County sheriff’s department might have been

aware of Fuller’s incarceration in Indiana. However, because the record does not show

that the Lake County prosecutor or trial court were actually aware of Fuller’s return to

Indiana’s jurisdiction prior to Fuller’s filing of his motion to discharge on June 13, 2012,

the Crim. R. 4 (C) clock did not start until that date. Therefore, the trial court properly

denied Fuller’s motion.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court properly denied Fuller’s

motion to discharge in accordance with Crim. R. 4(C).

       Affirmed.

KIRSCH, J. and ROBB, C. J. concur


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