MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Oct 23 2019, 10:04 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kelly Starling                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Jackson,                                         October 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-634
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                      The Honorable Therese A.
                                                         Hannah, Commissioner
                                                         Trial Court Cause No.
                                                         49G08-1610-CM-39141



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019                   Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Timothy Jackson (Jackson), appeals his conviction for

      carrying a handgun without a license, a Class A misdemeanor, Ind. Code § 35-

      47-2-1.


[2]   We affirm.


                                                    ISSUE
[3]   Jackson presents one issue on appeal, which we restate as: Whether the trial

      court erred when it denied his motion to discharge made pursuant to Indiana

      Criminal Rule of Procedure 4(C).


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 4, 2016, the State filed an Information, charging Jackson with

      Class A misdemeanor carrying a handgun without a license. By December

      2018, Jackson had not faced trial. On December 13, 2018, Jackson filed a

      motion to discharge pursuant to Rule 4(C) in which he alleged that, even in

      light of several delays which he conceded were attributable to him, more than

      365 days had elapsed since the filing of the charges against him. On January 9,

      2019, the trial court held a hearing on Jackson’s motion to discharge. On

      January 16, 2019, the trial court denied Jackson’s motion, concluding:

      including delays caused by several State motions for continuance of Jackson’s

      trial date, which was, by the time of the trial court’s ruling, set for February 21,

      2019, only 285 days had elapsed from the filing of the charges. Jackson’s bench

      trial was subsequently moved to February 20, 2019, and the trial court found
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 2 of 13
      him guilty as charged. On February 27, 2019, the trial court sentenced Jackson

      to 365 days, with credit for three days served, and the remainder suspended to

      ninety days of non-reporting probation.


[5]   Jackson now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review

[6]   Jackson argues that the trial court erred when it denied his motion to discharge.

      When asked to review a trial court’s Rule 4(C) determination where the facts

      are undisputed, we apply a de novo standard of review. State v. Larkin, 100

      N.E.3d 700, 703 (Ind. 2018). However, we review a trial court’s findings

      resolving disputed facts under the clearly erroneous standard. Id. Under that

      standard, we do not reweigh evidence, consider only evidence and reasonable

      inferences that support the judgment, and reverse only upon error “which

      leaves us with a definite and firm conviction that a mistake has been made.”

      State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013).


                                                  II. Rule 4(C)

[7]   Rule 4(C) provides in relevant part as follows:


              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 was
              not sufficient time to try him during such period because of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 3 of 13
              congestion of the court calendar; . . . Any defendant so held
              shall, on motion, be discharged.


      It is the State’s burden to bring the defendant to trial within the one-year time

      period provided for in Rule 4(C). See Larkin, 100 N.E.3d at 703. That one-year

      period is extended by any delay that is caused by the defendant, an emergency,

      or by court congestion. Id. at 704. If a defendant brings a motion to discharge

      pursuant to Rule 4(C), he bears the burden of proof to show that he was not

      brought to trial within the applicable one-year time limit and that he is not the

      party responsible for any delay. Fuller v. State, 995 N.E.2d 661, 664 (Ind. Ct.

      App. 2013), trans. denied.


[8]   In a case such as this where neither party argues that an emergency or court

      congestion delayed trial, resolution of a Rule 4(C) issue can take at least two

      approaches, namely either determining the delays chargeable to a defendant or

      determining the delays chargeable to the State. Our supreme court has

      observed that Rule 4(C) only provides for delay attributable to a defendant and

      that “the rhetoric of ‘delay chargeable to the State’ should be avoided.” See Carr

      v. State, 934 N.E.2d 1096, 1100-01 (Ind. 2010). However, it has also recognized

      that it is oftentimes more efficient for purposes of a Rule 4(C) review to

      calculate the number of delay days chargeable to the State. See Curtis v. State,

      948 N.E.2d 1143, 1150 (Ind. 2011) (“Thus, for ease of analysis, we decide

      whether the time not attributable to defendant’s delays, court congestion, or

      emergency exceeds 365 days.”). Given the circumstances of this case, we elect

      to determine whether delays not attributable to Jackson exceeded 365 days.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 4 of 13
                                    A. Trial Level and Appellate Concessions

[9]    The State concedes on appeal that the time between the filing of the charges on

       October 4, 2016, to a status hearing on October 26, 2016, (22 days), counted for

       the Rule 4(C) limit. The State also concedes on appeal that the delay between

       October 16, 2018, when it had requested a continuance of a trial date, and

       February 20, 2019, when Jackson was tried, is not attributable to Jackson, (128

       days). In addition, as it recognizes on appeal, the State conceded in its initial

       response to Jackson’s discharge motion that the period between October 27,

       2016, and January 6, 2017, (72 days), was not chargeable to Jackson. It also

       conceded in its supplemental response to Jackson’s discharge motion that the

       delay between August 15, 2018, and August 30, 2018, (16 days), was not

       chargeable to him. On appeal, the State changes tack and offers arguments that

       those delays are chargeable to Jackson, urging us to consider those delays in

       light of our de novo standard of review. Jackson counters that the State should

       be bound by its trial level concessions, and we agree. See State v. Delph, 875

       N.E.2d 416, 419-20 (Ind. Ct. App. 2007) (holding the State to its concession at

       trial that a delay was not attributable to Delph, despite the fact that normally it

       would have been), trans. denied. Therefore, in light of the fact that the State has

       conceded 238 days, if we find that an additional 128 days elapsed due to delay

       not attributable to Jackson, the State did not bring Jackson to trial in a timely

       fashion.


[10]   In addition, Jackson concedes that several delays are attributable to him.

       Jackson does not dispute that the 188-day period between January 7, 2017, and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 5 of 13
       July 13, 2017, is attributable to him. Neither does Jackson dispute that the 42-

       day delay between August 15, 2017, and September 24, 2017, and the 182-day

       delay between January 9, 2018, and July 9, 2018, are attributable to him. In

       addition, Jackson conceded at the hearing on his motion to discharge that the

       42-day delay between November 28, 2017, and January 8, 2018, 1 was

       attributable to him. We will hold him to his trial-level concessions as we did

       the State. See id. Therefore, we address only the delays that remain in dispute:

       three periods of delay that occurred during discovery, a delay occasioned by

       Jackson’s motion to suppress, and a delay after the trial court denied Jackson’s

       motion to suppress.


                                                   B. Discovery Delays

                                 i. July 14, 2017 to August 14, 2017 (32 days)


[11]   Beginning in May 2017, Jackson sought to depose three officers of the

       Indianapolis Metropolitan Police Department. These depositions were not

       completed until November 22, 2017. Jackson provided notice for June 9, 2017,

       depositions and subpoenaed the officers for that date. Jackson next attempted

       to take the statements of only two of the same officers on July 7, 2017, and

       subpoenaed them for that day. At a July 13, 2017, status conference, Jackson’s

       counsel represented to the trial court that two of the officers had yet to appear

       to be deposed and that the third officer had appeared but that the deposition



       1
         Jackson conceded delay until July 10, 2018, but we only state the concession as to January 8, 2018, in
       order to avoid double counting time covered by Jackson’s appellate concession.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019                  Page 6 of 13
       had not been completed. According to Jackson’s counsel, the officers who had

       not appeared had communicated “on why dates and times were not working.”

       (Supplemental Transcript p. 2). Jackson’s counsel requested a continuance to

       be able to complete the depositions, and the State did not object. The case was

       continued until August 14, 2017.


[12]   Citing these events, Jackson argues that the delay between July 14, 2017, and

       August 14, 2017, 2 is attributable to the State because the officers did not appear

       for their scheduled depositions. Jackson draws our attention to Martin v. State,

       984 N.E.2d 1281 (Ind. Ct. App. 2013), trans. denied, in which this court

       addressed delays caused by the unavailability of a State witness for deposition

       dates. In Martin, the State added a toxicologist to its witness list approximately

       three weeks before Martin’s trial on charges stemming from his alleged

       operation of a vehicle while intoxicated. Id. at 1290. Martin attempted twice to

       depose the witness, each time subpoenaing her. Id. at 1290-19. The

       toxicologist did not appear at either date, citing unavailability and work

       commitments. Id. After each missed deposition date, Martin moved for a

       continuance of the trial date in order to depose the witness, and the State did

       not oppose the continuances. Id. After the deposition was set for a third time,

       Martin moved for discharge pursuant to Rule 4(C). Id. at 1291. The trial court

       denied Martin’s motion, in part because it found that Martin had not actively




       2
           Jackson conceded on appeal that another delay attributable to him began on August 15, 2017.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019                   Page 7 of 13
       prepared his defense. Id. The trial court also reasoned that the parties did not

       agree on why the depositions did not occur, Martin had never requested the

       trial court’s assistance in procuring the toxicologist’s attendance, and that the

       parties had simply agreed to continue the trial date until the deposition could be

       taken. Id.


[13]   In reversing the trial court’s denial of Martin’s motion, this court found that the

       trial court did not explain why the parties failed to agree on why the depositions

       did not occur as scheduled, but that the State did not contest on appeal that the

       toxicologist was simply unavailable for the depositions. Id. We also noted that

       Martin’s delay in deposing the witness was excusable to some extent because

       the witness was added shortly before trial. Id. We rejected the trial court’s

       reasoning that Martin should be charged with the discovery delay because he

       did not seek assistance of the trial court in procuring the attendance of the

       witness, noting that it was the State’s burden to bring Martin to trial within the

       proscribed time limits and that Martin was under no obligation “‘to take

       affirmative action to see that he is brought to trial within the statutory time

       period.’” Id. at 1292 (quoting State v. Black, 947 N.E.2d 503, 507 (Ind. Ct. App.

       2011)). Observing that the State did not object to Martin’s motions to continue

       based on the toxicologist’s failure to appear and that the State did not allege

       that it was provided inadequate notice of the deposition dates, we concluded

       that the balance tipped in favor of Martin and that he should not bear the

       responsibility for the toxicologist’s failure to appear at the two scheduled

       depositions. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 8 of 13
[14]   In light of Martin, we conclude that the portion of the trial court’s order

       attributing this delay to Jackson was in error. The trial court concluded the

       delay was attributable to Jackson because it was “unclear from the court record

       the reason for continuing the depositions or if they were cancelled in advance of

       the subpoena date.” (Appellant’s App. Vol. II, p. 144). Given the

       representations made by Jackson’s counsel at the July 13, 2017, status hearing

       that two of the officers had not appeared, representations which were not

       disputed by the State, we conclude that the trial court erred when it attributed

       this delay to Jackson. The trial court also noted that Jackson had not sought its

       assistance in compelling the attendance of the officers, a rationale which we

       discredited in Martin. On appeal, the State does not dispute that the officers

       were validly subpoenaed, and it did not oppose the continuance to August 14,

       2017. Jackson should not be held responsible simply because two potential

       State witnesses did not appear for depositions. See Martin, 984 N.E.2d at 1292.

       We attribute this delay to the State, making its Rule 4(C) tally 270 days.


                           ii. September 25, 2017, to October 23, 2017 (29 days)


[15]   At a September 25, 2017, status hearing, Jackson’s counsel requested another

       continuance, providing “[illegible] of Depos” as the reason on the written

       request for continuance he submitted. (Appellant’s App. Vol. II, p. 67). There

       is no indication in the record that the State objected to this continuance. The

       matter was continued to October 23, 2017. On October 18, 2017, Jackson

       provided notice of the depositions for November 1, 2017, and subpoenaed the

       officers for that date. Again, given this evidence, we find that the trial court

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 9 of 13
       erred when it concluded that the delay was attributable to Jackson because the

       record was unclear regarding the reason for Jackson’s request for a continuance.

       The reason provided, coupled with the fact that Jackson provided notice and re-

       subpoenaed the officers, indicates that Jackson was still attempting to depose

       the three officers because they had not appeared at their last scheduled

       deposition. Following Martin, we also attribute this delay to the State, bringing

       its Rule 4(C) tally to 299 days.


                           iii. October 24, 2017, to November 27, 2017 (35 days)


[16]   On October 23, 2017, Jackson and the State submitted a joint request for a

       continuance in order to complete discovery, and the matter was reset for

       November 27, 2017. On November 9, 2017, Jackson subpoenaed the officers

       again, and the depositions finally took place on November 22, 2017. Jackson

       argues that this delay is also attributable to the State because he was still

       attempting to depose the officers.


[17]   We conclude that this delay is attributable to Jackson because, unlike the

       previous delays, this continuance request was made jointly. See Larkin, 100

       N.E.3d at 704 (holding that delay is attributable to defendant where he seeks or

       acquiesces in delay resulting in later trial date). In addition, by October 23,

       2017, there was not yet any failure of the officers to appear for the depositions

       scheduled on November 1, 2017. There is no indication in the record regarding

       why the November 9, 2017, subpoenas were necessary and why the depositions

       did not take place until November 22, 2017. As a result, we conclude that


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 10 of 13
       Jackson failed to meet his burden of proof to show that this delay was not

       attributable to him. See Fuller, 995 N.E.2d at 664. Therefore, we do not count

       this delay towards the Rule 4(C) tally, which remains at 299 days.


                                               C. Motion to Suppress

[18]   Jackson also argues that the delay from the filing of his motion to suppress on

       July 10, 2018, to August 14, 2018, the date of the hearing on the motion and the

       trial court’s denial of same, (34 days), should be attributed to the State. “A

       motion to suppress is not automatically considered a delay attributable to the

       defendant under Rule 4(C): ‘the mere filing of a motion to suppress does not of

       itself engender any delay . . . within the period of the rule.’” Curtis, 948 N.E.2d

       at 1150 (quoting Moreno v. State, 166 Ind. App. 441, 454 n.10, 336 N.E.2d 675,

       683 n.10 (1975)). Delay caused by a defendant’s motion to suppress may

       sometimes be attributable to him, but whether it is depends on the particular

       facts of the case. West v. State, 976 N.E.2d 721, 722 (Ind. Ct. App. 2012), trans.

       denied. Although the setting of a trial date is not conclusive regarding whether

       delay is attributable to the defendant, the making of a pre-trial motion close to

       the trial date militates in favor of attributing the motion to defendant. Curtis,

       948 N.E.2d at 1150.


[19]   Here, there was no trial date set when Jackson filed his motion to suppress, so

       proximity to any trial date is not a factor in this case. However, Jackson’s

       motion to suppress came approximately one year and nine months after the

       filing of the Information, almost eight months after depositions were

       completed, and seven months after the State filed its last notice of discovery

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 11 of 13
       compliance on December 11, 2017. We conclude that Jackson’s lack of

       diligence in filing his motion to suppress weighs in favor of attributing the delay

       to him. This delay does not count toward the Rule 4(C) tally, which remains at

       299 days.


                                          D. Post-Motion to Suppress Delay

[20]   The last period in contention is that between August 31, 2018, and October 15,

       2018. 3 After the trial court denied Jackson’s motion to suppress, it asked

       Jackson whether he desired a bench trial setting. Jackson opted instead for an

       additional pre-trial conference, and the matter was set over to September 25,

       2018. On August 29, 2018, Jackson moved the trial court for a bench trial. The

       trial court set a trial date for October 15, 2018. On October 5, 2018, the State

       moved the trial court to continue the trial date, and it was reset for December

       17, 2018.


[21]   The State argues that Jackson’s act on August 14, 2018, of requesting a pre-trial

       conference instead of a bench trial “caused the court dates to change from

       September 25, 2018, to October 15, 2018, after he filed his motion for bench

       trial.” (Appellant’s Br. p. 26). However, because we have concluded that only

       299 days of delay were not attributable to Jackson, we need not address this last




       3
         We reframe the period of the last delay in dispute given our previous conclusions. As noted above, the
       State conceded in its pleadings that the delay between August 15, 2018, and August 30, 2018, was not
       attributable to Jackson. We also note that in its response to Jackson’s motion to discharge, the State
       conceded that “the time from the date it filed its Motion to Continue on October 5, 2018, until December 12,
       2018, is chargeable to the State[.]” (Appellant’s App. Vol. II, p. 134).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019                Page 12 of 13
       disputed period of delay, because even if we were to find that all of the delay

       was not attributable to him, the Rule 4(C) tally would only be 345 days. In

       addition, the State did not offer this argument below, and so it is waived.

       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (“[A]s a general rule a

       party may not present an argument or issue on appeal unless the party raised

       that argument or issue before the trial court.”).


                                             CONCLUSION
[22]   Based on the foregoing, we conclude that delays not attributable to Jackson did

       not exceed 365 days, and, thus, his Rule 4(C) trial right was not violated.


[23]   Affirmed.


[24]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-634 | October 23, 2019   Page 13 of 13
