FOR PUBLICATION




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOHN D. FIEREK                                GREGORY F. ZOELLER
Voyles, Zahn & Paul, P.A.                     Attorney General of Indiana
Indianapolis, Indiana
                                              JAMES B. MARTIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                        Apr 08 2013, 9:21 am
                             IN THE
                   COURT OF APPEALS OF INDIANA

HALDEN MARTIN,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 73A01-1207-CR-300
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE SHELBY SUPERIOR COURT
                      The Honorable Jack A. Tandy, Special Judge
                           Cause No. 73D02-1007-CM-841


                                    April 8, 2013

                             OPINION - FOR PUBLICATION

VAIDIK, Judge
                                            Case Summary

       Halden Martin appeals his conviction for Class A misdemeanor dangerous

operating a vehicle while intoxicated. He appeals arguing that the trial court erred in

denying his Criminal Rule 4(C) motion for discharge because his trial occurred more than

one year after he was charged and arrested. Because the days that count toward the Rule

4(C) period exceed 365, we conclude that the trial court should have granted Martin’s

motion for discharge. We therefore reverse the trial court and remand for vacation of his

conviction.

                                   Facts and Procedural History

       In the early morning hours of July 17, 2010, Shelbyville Police Department

Officer Jamie Kolls pulled over Martin, who lived in Knoxville, Tennessee, on I-74 in

Shelby County after Martin left Indiana Live Casino.1 Martin tailgated a semi, crossed

over the centerline several times, and crossed the fog line. Martin, who admitted to the

officer that he had been at the casino for several hours and had been drinking, failed three

field-sobriety tests. Martin, however, refused to submit to a chemical breath test. Martin

was arrested and transported to the Shelby County Jail, where a search warrant was

obtained for his blood. As it turned out, the State Department of Toxicology did not

return Martin’s blood-test results for nearly eight months.

       On the same day as his arrest, the State charged Martin with Class A misdemeanor

dangerous operating a vehicle while intoxicated. Appellant’s App. p. 12. An initial

hearing was held on July 19, 2010, and Martin appeared in custody and without counsel.


       1
           It is now called Indiana Grand Casino.
                                                    2
       Martin hired a Shelbyville attorney and filed motions to continue the pretrial

conferences that had been set for October 6, 2010, and then November 17, 2010, both of

which the trial court granted. Id. at 2, 23, 24, 25, 26. Martin moved to continue the

October 6 pretrial conference because an offer was just received and he needed to discuss

it with counsel and he was unable to travel to Indiana due to a work emergency. Martin

moved to continue the November 17 pretrial conference because additional time was

needed to get his blood-test results and he was unable to find transportation to Indiana.

       On December 15, 2010, the trial court continued Martin’s pretrial conference due

to court congestion. Id. at 2 (a jury trial was scheduled in another case). On February 3,

2011, the trial court continued Martin’s pretrial conference because the courthouse was

closed for “inclement weather.” Id. The trial court reset Martin’s pretrial conference for

March 2. Id.

       On March 2, 2011, the blood-test results still were not in. So, Martin filed his

third motion to continue because additional time was needed to get his blood-test results,

he would miss two days of work and have to seek lodging in a hotel room, and it would

be a hardship for him to reappear until his blood-test results were available for review.

Id. at 27. The trial court granted Martin’s continuance and reset the pretrial conference

for April 6. Id. at 2, 28.

       In the meantime, the State Department of Toxicology sent Martin’s blood-test

results to the prosecutor’s office on March 9, 2011. Martin’s results were 0.09 gram of

alcohol per 100 milliliters of blood. Id. at 29. Accordingly, on March 22, the State filed

an additional count, Count II, Class C misdemeanor operating a vehicle with an alcohol


                                             3
concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of

alcohol per 100 milliliters of blood. Id. at 30-32. The trial court scheduled an initial

hearing on Count II for April 6. Id. at 33.

        But on April 6, 2011, Martin’s attorney appeared in court and requested his fourth

continuance, which the trial court granted, thereby resetting the initial hearing on Count

II to May 4. Id. at 3. The reason for this continuance does not appear in the record.

        The initial hearing was held on May 4, 2011, at which time a pretrial conference

was scheduled for June 1. Id. Martin, however, failed to appear at the June 1 pretrial

conference, and a warrant was issued for his arrest. Id. On July 25, Martin’s Shelbyville

attorney withdrew, with Indianapolis attorney John Fierek having entered his appearance

the week before. Id. at 3, 34, 35. Martin appeared in custody and with his new counsel

before the trial court on August 10,2 at which time the trial court released him on the

bond previously posted. Id. at 4. The trial court set the matter for a jury trial on

September 27, with the final pretrial conference on September 7. Id.

        Immediately following the August 10, 2011, hearing, the State filed a motion to

convert the jury trial to a bench trial, since Martin had not requested a jury trial. Id. at

38-39. The trial court converted the jury trial to a bench trial and set it for September 13.

Id. at 4.

        The pretrial conference was held on September 7, 2011, at which time Martin filed

his jury demand. Id. at 5, 49-50. The trial court vacated the bench trial and reset the jury

trial for September 27. Id. at 5.

        2
         The trial court’s order denying Martin’s motion for discharge says August 16, 2011, but the
CCS shows that Martin appeared before the trial court on August 10. Both parties agree that Martin
appeared before the trial court on August 10.
                                                 4
       The following day, September 8, 2011, the State filed its Supplemental Notice of

Discovery Compliance in which it notified the trial court that it had learned of “additional

items subject to discovery and has provided defense counsel” with a copy of the State

Department of Toxicology’s amended toxicology report dated August 24, 2011.3 Id. at

51. In this same filing, the State notified the trial court and defense counsel that it had

learned of an additional witness from the State Department of Toxicology, Cheryl

Anderson. Id.

       Because he needed additional time to depose Anderson, Martin filed his fifth

motion to continue the September 27, 2011, trial. Id. at 53. Anderson reanalyzed

Martin’s blood sample and issued an amended toxicology report dated August 24, 2011,

because the original employee who analyzed Martin’s blood sample and issued the March

2011 toxicology report left her job at the Department. Martin explained that the State just

added Anderson to its witness list on September 8 (even though he did not receive the list

until September 12). Id. at 51. However, on September 7, the day before the State added

Anderson to its list, the trial court held a pretrial conference at which the parties agreed to

a deposition date of September 13 for three of the State’s witnesses. Id. at 53-54. But

now, Martin alleged, it was too late to schedule Anderson’s deposition for that date. The

trial court granted Martin’s motion to continue and reset the jury trial for November 15,

with the final pretrial conference on November 4. Id. at 61.




       3
           There is no copy of a discovery order in the record. However, we assume there is one based on
this filing by the State.
                                                   5
       When Anderson did not appear for her October 28 scheduled deposition in Marion

County4 even though a “Subpoena Ad Testificandum” was sent to her via certified mail,

Martin filed his sixth motion to continue the November 15, 2011, trial. Id. at 63. Martin

said that the State Department of Toxicology notified him that Anderson was

“unavailable with work commitments” on October 28. Id. Accordingly, Martin said that

due to Anderson not appearing for the scheduled deposition it was “not now possible for

[him] to properly prepare for the current Jury Trial setting. [He] will need additional time

to reschedule[] the deposition o[f] the State’s witness who analy[z]ed [his] blood

sample.” Id. at 64. The trial court granted Martin’s motion and reset the jury trial for

January 24, 2012, with the final pretrial conference on January 13. Id. at 65.

       When Anderson did not appear for her December 27 scheduled deposition in

Marion County even though a “Subpoena Ad Testificandum” was sent to her via certified

mail, Martin filed his seventh motion to continue the January 24, 2012, trial. Id. at 66.

Again, Martin said that the State Department of Toxicology notified him that Anderson

was “unavailable.” Id. Accordingly, Martin said that due to Anderson not appearing for

the scheduled deposition it was “not now possible for [him] to properly prepare for the

current Jury Trial setting. [He] will need additional time to reschedule[] the deposition

o[f] the State’s witness who analy[z]ed [his] blood sample.” Id. at 67. He noted that a

deposition had been rescheduled for February 15 at 10:00 a.m. and Anderson had been




       4
          According to Indiana Trial Rule 45(D)(2), the deposition must occur in the county where the
person lives or works.

                                                 6
served with a Subpoena Ad Testificandum via certified mail.5 Id. The trial court granted

Martin’s motion and reset the jury trial for March 27 with the final pretrial conference on

March 16. Id. at 68.

       At the March 16, 2012, pretrial conference, Martin filed a motion for discharge

pursuant to Indiana Criminal Rule 4(C) asserting that 608 days had passed since his July

17, 2010, arrest and “at least (365) days are chargeable to the State of Indiana.” Id. at 69.

Martin also requested his eighth and final continuance, which the trial court granted,

resetting the jury trial to April 24, 2012. Id. at 7. The trial court gave the State seven

days to file a response to Martin’s motion for discharge, and the State timely filed a

response. See id. at 79-87. On March 26, the trial court issued an order denying Martin’s

motion for discharge.          See id. at 88-92.        The trial court found numerous delays

attributable to Martin because of his “pattern” of asking for continuances, his failure to

appear, and his failure to actively prepare his case. Id. at 91.

       On April 13, 2012, the State requested a continuance, and the trial court reset the

jury trial to June 12. Martin objected “in order to preserve his rights under Indiana

Criminal Rule Rule 4(C)” but was “aware that by the State’s and the Court’s calculation[]

[that] this trial setting is within the time limits of Criminal Rule 4(C).” Id. at 93.

       Thereafter, Martin waived his right to a jury trial, and the trial court held a bench

trial on June 12, 2012. The State presented Officer Kolls as its sole witness. The State’s

exhibits consisted of the search warrant for Martin’s blood draw (State’s Ex. 1) and the

amended August 2011 toxicology report from the State Department of Toxicology issued

       5
           According to Martin, this deposition finally occurred on February 15, 2012. Appellant’s Br. p.
13.

                                                    7
by Anderson (State’s Ex. 2).       Martin stipulated to the admission of the amended

toxicology report. Tr. p. 11. Martin presented no evidence and did not cross-examine

Officer Kolls.

       The trial court found Martin guilty of Count I and dismissed Count II as a “related

count.” Appellant’s App. p. 95. The trial court sentenced Martin to 365 days, with all

but 30 days suspended to probation. Martin was immediately taken into custody.

       Martin now appeals.

                                Discussion and Decision

       Martin contends that the trial court erred in denying his Criminal Rule 4(C)

motion for discharge because his trial occurred more than one year after he was charged

and arrested. In relevant part, the Rule provides:

       (C) Defendant Discharged. 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 congestion of the court calendar; provided,
       however, that in the last-mentioned circumstance, the prosecuting attorney
       shall file a timely motion for continuance as under subdivision (A) of this
       rule. Provided further, that a trial court may take note of congestion or an
       emergency without the necessity of a motion, and upon so finding may
       order a continuance. Any continuance granted due to a congested calendar
       or emergency shall be reduced to an order, which order shall also set the
       case for trial within a reasonable time. Any defendant so held shall, on
       motion, be discharged.

                                         *****

       (F) Time periods extended. When a continuance is had on motion of the
       defendant, or delay in trial is caused by his act, any time limitation
       contained in this rule shall be extended by the amount of the resulting
       period of such delay caused thereby.

                                             8
We review a trial court’s ruling on a Criminal Rule 4(C) motion for abuse of discretion.

Curtis v. State, 948 N.E.2d 1143, 1149 (Ind. 2011).

      Criminal Rule 4(C) “places an affirmative duty on the State to bring a defendant to

trial within one year of being charged or arrested, but allows for extensions of that time

for various reasons.” Cook v. State, 810 N.E.2d 1064, 1065 (Ind. 2004). The one-year

period is extended by any delay due to: (1) a defendant’s motion for a continuance; (2) a

delay caused by the defendant’s act; or (3) congestion of the court calendar or

emergency. Curtis, 948 N.E.2d at 1149; Cook, 810 N.E.2d at 1065; Isaacs v. State, 673

N.E.2d 757, 762 (Ind. 1996). “[W]hen a defendant takes action which delays the

proceeding, that time is chargeable to the defendant and extends the one-year time limit,

regardless of whether a trial date has been set at the time or not.” Cook, 810 N.E.2d at

1066-67. “A defendant extends the one-year period by seeking or acquiescing in delay

resulting in a later trial date.” Pelley v. State, 901 N.E.2d 494, 498 (Ind. 2009), reh’g

denied. “The objective of the rule is to move cases along and to provide the defendant

with a timely trial, not to create a mechanism to avoid trial. Brown v. State, 725 N.E.2d

823, 825 (Ind. 2000).

      Here, the record shows that Martin moved for seven continuances before filing his

Criminal Rule 4(C) motion for discharge on March 16, 2012, and then moved for his

eighth continuance in that same hearing. In denying Martin’s motion for discharge, the

trial court found that 230 days counted toward the Rule 4(C) period; the State does not




                                            9
challenge this calculation on appeal.6 Appellant’s App. p. 90. The trial court then

charged four periods of delay to Martin: (1) October 6, 2010, to December 15, 2010,

because Martin caused the delay by continuing pretrial conferences; (2) March 2, 2011,

to May 4, 2011, because Martin caused the delay by continuing pretrial conferences; (3)

June 1, 2011, to August 10, 2011, because of Martin’s failure to appear; and (4)

September 27, 2011, to March 26, 2012, because Martin’s motions to continue based on

his asserted difficulties in scheduling Anderson’s deposition resulted from his failure to

actively prepare his case. In order to determine whether the trial court erred in denying

Martin’s motion for discharge, we decide whether the time not attributable to Martin’s

delays, court congestion, or emergency exceeds 365 days. See Curtis, 948 N.E.2d at

1150 (“Thus, for ease of analysis, we decide whether the time not attributable to

defendant’s delays, court congestion, or emergency exceeds 365 days.”). We start with

the 230 days the trial court counted toward the Rule 4(C) period, which the State does not

challenge on appeal.

                              A. October 6, 2010, to December 15, 2010

        Martin filed a motion to continue the October 6 pretrial conference because (1)

“[a]n offer was just received in this matter and additional time is needed in which to

discuss it with the defendant” and (2) Martin was “unable to travel to Indiana today for a

        6
            The trial court calculated the 230 days as follows:

                 July 16, 2010, to October 5, 2010, for 82 days
                 December 16, 2010, to March 2, 2011, for 77 days
                 May 4, 2011, to June 1, 2011, for 29 days
                 August 17, 2011, to September 27, 2011, for 42 days

Appellant’s App. p. 89-90. The State does not challenge the calculation of any of these periods on appeal,
even though one of these periods appears to be due to court congestion and court closure due to weather.
                                                      10
hearing due to an emergency at work.” Appellant’s App. p. 23. The trial court continued

the pretrial conference to November 17. The trial court charged the delay from October 6

to November 17 to Martin because he requested the continuance. Id. at 89-90.

       Martin claims it was error for the trial court to charge him with the delay because a

defendant does not abandon his right to be tried within one year simply because he

engages in informal plea negotiations with the State. Martin relies on Leek v. State, 878

N.E.2d 276 (Ind. Ct. App. 2007). But Leek does not hold that if a defendant bases his

motion to continue on plea negotiations, the resulting delay cannot be charged to him. In

Leek, there was an eleven-month delay that was unexplained by any CCS entries. Id. at

278. The defendant did not file a motion to continue; rather, he requested a change-of-

plea hearing and then took no action to delay the trial during the eleven-month delay. Id.

at 279. This case is different. Martin filed a motion to continue because (1) an offer

“was just received” and counsel needed to discuss it with Martin (not the State) and (2)

Martin had a work “emergency” and could not travel to Indiana. Appellant’s App. p. 23

(emphasis added). Given these circumstances, the trial court properly charged the 43-day

delay from October 6 to November 17 to Martin. Thus, the 230 days not challenged by

the State still count toward the Rule 4(C) period.

       Martin then filed a motion to continue the November 17 pretrial conference

because (1) “additional time is needed in which to get the blood results back” and (2)

Martin “resides in Tennessee and is unable to find a ride to bring him to Court this court

date.” Id. at 25. The trial court continued the pretrial conference to December 15, a date




                                            11
requested by Martin. The trial court charged the delay to Martin because he requested the

continuance. Id. at 89-90.

       Martin argues that pursuant to Biggs v. State, 546 N.E.2d 1271 (Ind. Ct. App.

1989), and its progeny, this time period cannot be charged to him because the State did

not have the blood-test results. Biggs and the cases that rely on Biggs hold that even if

the defendant is the one who files the motion to continue, the delay can still be charged to

the State. In Biggs, the defendants, who were charged with dealing in cocaine and

marijuana, filed a motion to continue because the State’s confidential informant failed to

appear for a scheduled deposition. The defendants asked that the trial be delayed until

such time as the defendants’ discovery requests were complied with by the State so that

they would be adequately prepared for trial. Id. at 1275. This Court held:

       To put the defendants in a position whereby they must either go to trial
       unprepared due to the State’s failure to respond to discovery requests or be
       prepared to waive their rights to a speedy trial, is to put the defendants in an
       untenable situation. Therefore, we will not charge the defendants with any
       delay that may appear to have resulted from the . . . motion for a
       continuance.

Id.; see also State v. Black, 947 N.E.2d 503, 507-08 (Ind. Ct. App. 2011) (The defendant

requested a continuance due to the State’s failure to comply with discovery requests; in

an effort to hold the State accountable for the late production of the laboratory results, the

trial court granted the defendant’s request for a continuance and charged the delay to the

State); Marshall v. State, 759 N.E.2d 665, 669 (Ind. Ct. App. 2001) (“Generally, a

defendant is responsible for any delay caused by his action including seeking or

acquiescing in any continuance. However, a defendant cannot be charged with the delay

if the defendant made his motion because the State failed to comply with a discovery

                                             12
request. In this instance, Marshall filed his motion for a continuance on August 2, 2000,

because he could not prepare for trial without the DNA evidence from the State. The trial

court granted this request and reset the trial to October 5. Thus, the State’s failure to

respond to his discovery request caused this delay and as such, Marshall is not

accountable for the delay of the August 30, 2000 trial date.” (citations omitted)).

       When Martin filed the November 17 motion to continue, which was four months

after his arrest, the blood-test results were not back from the State Department of

Toxicology. Although as the State points out a trial date had not been set (implying that

there was no hurry for the results), the results were nevertheless critical to preparing for

and defending Martin’s case. Because Martin could not adequately prepare for trial

without the blood-test results, the 28 days from November 187 to December 15 count

toward the Rule 4(C) period, bringing the total to 258 days.

                               B. March 2, 2011, to May 4, 2011

       Martin filed a motion to continue the March 2 pretrial conference because (1)

“[a]dditional time is needed in which to obtain the blood test results in this matter,” (2) he

“resides out of State in Knoxville, Tennessee and has to rely on someone else to drive

him since he is without a driver’s license,” (3) an “appearance in Court would require

him to miss nearly 2 days of work and a 1 night stay in a hotel,” and (4) it “would be a

hardship on [him] to re-appear until such time as the blood test results are available for

review.” Appellant’s App. p. 27. The trial court reset the hearing for April 6. For the

same reason as above—Martin could not adequately prepare for trial without the blood-


       7
         We already counted November 17 in the previous period; therefore, we start with November 18
so we do not count the day twice.
                                                13
test results—the 36 days from March 2 to April 6 count toward the Rule 4(C) period,

bringing the total to 294 days.

        In the meantime, Martin’s blood-test results came in, and the State added Count II.

The trial court scheduled an initial hearing on Count II for April 6. On April 6, Martin’s

attorney appeared in court and requested his fourth continuance. See Appellant’s App. p.

3 (CCS entry provides, “Defendant appears by counsel, Mark McNeely.                             Counsel

requests hearing be reset. Granted.”). The trial court granted this continuance, resetting

the initial hearing to May 4. Martin says the record is “silent” as to why he requested this

continuance, and where the record is silent or ambiguous about the reason for the delay, it

is not attributable to the defendant. Appellant’s Br. p. 9 (citing Nance v. State, 630

N.E.2d 218, 221 (Ind. Ct. App. 1994), overruled on other grounds by Cook v. State, 810

N.E.2d 1064 (Ind. 2004)). But here the record is clear about the reason for the delay—

Martin requested the continuance. The trial court properly charged Martin with the 28-

day delay from April 78 to May 4, leaving the total at 294 days toward the Rule 4(C)

period.

                               C. June 1, 2011, to August 10, 2011

        At the May 4 initial hearing, the trial court scheduled a pretrial conference for

June 1. Martin, however, failed to appear at the June 1 pretrial conference, and a warrant

was issued for his arrest.         The State requested a trial date at the June 1 pretrial

conference, but the trial court refused to set one because of Martin’s absence. Martin

appeared in custody and with his new counsel before the trial court on August 10, at

        8
          We already counted April 6 in the previous period; therefore, we start with April 7 so we do not
count the day twice.

                                                   14
which time the trial court released him on the bond previously posted. The trial court set

the matter for a jury trial on September 27, with the final pretrial conference on

September 7. The trial court charged the delay from June 1 to August 10 to Martin

because of his failure to appear. Appellant’s App. p. 90.

       Martin argues that the trial court erred in charging the delay to him by comparing

his case to Schwartz v. State, 708 N.E.2d 34 (Ind. Ct. App. 1999). In Schwartz, the

defendant appeared in court on July 29, 1996, and a pretrial conference was scheduled for

October 16, 1996, at which time his trial would be set. However, the record did not show

whether the pretrial conference was ever held. Rather, the record revealed that nearly a

year later, on September 3, 1997, the State asked the trial court to set the case for trial.

The defendant moved for discharge, but the trial court denied it, stating “Based on what I

can see the key to this is you didn’t appear for the pretrial conference.” Id. at 36. On

appeal, this Court held that the trial court erred by denying the defendant’s motion for

discharge because “[t]he record is completely silent on whether a pretrial conference was

ever held.” Id. at 37. And where the record is silent concerning the reason for a delay,

the delay is not attributable to the defendant. Id. But even assuming that the pretrial

conference was held, we noted that we “fail[ed] to see why a trial date could not have

been set in his absence.” Id.

       Here, unlike Schwartz, the record is not silent concerning the reason for the delay.

The CCS entries for June 1 provide,

       State appears by Deputy Prosecutor Ed Zych. Defendant appears by
       counsel, Mark McNeely, but fails to appear in person. Warrant to be
       issued for the Defendant for FTA. Bond to be set by the Court. . . .


                                            15
       Warrant or Writ of Attmnt for the Body of a Person Issued

       Pretrial Conference (2:00 PM) . . .
             Commenced and Concluded

Appellant’s App. p. 3. Martin was present in court on May 4 when the June 1 pretrial

conference was scheduled, yet he failed to appear on June 1. The record is clear that the

pretrial conference was held, at which time a warrant was issued for Martin’s arrest.

Although the State requested a trial date at the June 1 hearing, the trial court refused to

set one because of Martin’s absence. This was within the trial court’s discretion given

that Martin was an out-of-state defendant who failed to appear and had demonstrated

prior difficulties getting to Indiana because he did not have a driver’s license. The next

time Martin appeared before the court was August 10. Id. at 4. Accordingly, the trial

court properly charged the delay resulting from Martin’s failure to appear to him, leaving

the total days toward the Rule 4(C) period at 294.

                       D. September 27, 2011, to March 26, 2012

       We now reach the largest period of delay in this case, which will be dispositive of

this case. Martin moved to continue the September 27 trial because he needed additional

time to depose Anderson from the State Department of Toxicology. The State just added

Anderson to its witness list on September 8 (even though Martin did not receive the list

until September 12). On September 7, the trial court held a pretrial conference at which

the parties agreed to a deposition date of September 13 for three of the State’s witnesses;

therefore, there was not enough time for Martin to schedule Anderson’s deposition for

September 13.    The State did not oppose the continuance.         The trial court granted



                                             16
Martin’s motion to continue and reset the jury trial for November 15, with the final

pretrial conference on November 4.

       When Anderson did not appear for her October 28 scheduled deposition in Marion

County even though a “Subpoena Ad Testificandum” was sent to her via certified mail,

Martin moved to continue the November 15 trial. Id. at 63. Martin said that the State

Department of Toxicology notified him that Anderson was “unavailable with work

commitments” on October 28. Id. Martin said that as a result of Anderson’s failure to

appear, it was not possible for him to properly prepare for trial. The State did not oppose

the continuance. The trial court granted Martin’s motion to continue and reset the jury

trial for January 24, 2012, with the final pretrial conference on January 13. Id. at 65.

       When Anderson did not appear for her December 27, 2011, scheduled deposition

in Marion County even though a “Subpoena Ad Testificandum” was sent to her via

certified mail, Martin moved to continue the January 24, 2012, trial. Id. at 66. Martin

said that the State Department of Toxicology again notified him that Anderson was

“unavailable.” Id. Martin said that as a result of Anderson’s failure to appear, it was not

possible for him to properly prepare for trial. He noted that a deposition had been

rescheduled for February 15 at 10:00 a.m. and Anderson had been served with a

Subpoena Ad Testificandum via certified mail. The State did not oppose the continuance.

The trial court granted Martin’s motion and reset the jury trial for March 27 with the final

pretrial conference on March 16. Id. at 68.

       At the March 16 pretrial conference, Martin moved for discharge pursuant to

Criminal Rule 4(C), and the trial court denied the motion on March 26. The trial court


                                              17
attributed the delay from September 27, 2011, to March 26, 2012, to Martin. The trial

court reasoned:

               The Defendant attempted to schedule the deposition of Ms.
       Anderson on October 28, 2011 and December 27, 2011 without success.
       The parties do not agree on why Ms. Anderson’s deposition did not occur.
       The Court agrees with the Defendant that the general principle of law is that
       he should not be forced to [choose between] being prepared for trial or
       waiving his speedy trial rights. However, a criminal defendant is expected
       to actively prepare his defense and is not allowed to protract his preparation
       and then complain of violation of his speedy trial rights.
               The Defendant did not depose known witnesses until approximately
       fourteen months after charges were filed. Ms. Anderson had to be
       substituted as a witness because the original Department of Toxicology
       witness left the agency’s employ. Presumably, if the Defendant had more
       promptly . . . deposed the original Department of Toxicology witness, the
       issue with Ms. Anderson would not have [arisen]. The Court notes the
       Defendant has never asked [for] the Court’s assistance with the issue of Ms.
       Anderson’s deposition. The parties have simply agreed to continue the trial
       date until Ms. Anderson’s deposition can be taken. The Court is unclear as
       to whether Ms. Anderson’s deposition has occurred or if it is still being
       sought by the Defendant.
               The Court finds that the Defendant should not benefit by not actively
       preparing his defense and then complaining that his speedy trial rights have
       been violated. The Court holds the period of continued trial dates of
       September 27, 2011 through the present against the Defendant for Criminal
       Rule 4(c) purposes.

Id. at 91-92.

       The trial court did not explain why the parties did not agree on why Anderson’s

depositions did not occur, and notably on appeal the State does not challenge Martin’s

account that Anderson was simply “unavailable” for the depositions. As for the trial

court’s explanation that Martin did not depose known witnesses until approximately

fourteen months after he was charged, the witness at issue on appeal, Anderson, was not

added to the list until September 8, 2011—which was over a year after Martin was

charged. Deposing Anderson’s predecessor at the State Department of Toxicology would

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have done little good to Martin because Anderson’s predecessor would not have been a

witness at trial. Finally, as for the trial court’s explanation that Martin did not seek the

trial court’s assistance in getting an order requiring Anderson to appear at a deposition at

which Martin had already issued subpoenas, we note that Criminal Rule 4 puts the onus

on the State to bring the defendant to trial within one year. See Black, 947 N.E.2d at 507

(“A defendant has no obligation to remind the trial 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.”). The State did not object when Martin sought two continuances

based on Anderson’s failures to appear; it should have.

       What this boils down to is what party should bear the responsibility of a State’s

witness not showing up to two scheduled depositions at which the witness was

subpoenaed both times. Martin says the State Department of Toxicology told him that

Anderson was “unavailable” both times, and the State does not offer a contrary

explanation on appeal. Moreover, the State does not allege that Martin did not provide

Anderson with reasonable notice of the depositions, which is required by Trial Rule

30(B)(1) (“A party desiring to take the deposition of any person upon oral examination

shall give reasonable notice in writing to every other party to the action. The notice shall

state the time and place for taking the deposition and the name and address of each

person to be examined . . . .”). We find that the balance tips in favor of Martin and

therefore conclude that the trial court abused its discretion in charging the delay to him.

Thus, the 182 days from September 27, 2011, to March 26, 2012, count toward the Rule




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4(C) period, bringing the total to 476 days.9 Because the days that count toward the Rule

4(C) period exceed 365, the trial court should have granted Martin’s motion for

discharge. We therefore reverse the trial court and remand for vacation of his conviction.

        Reversed and remanded.

BAILEY, J., and BROWN, J., concur.




        9
          Because the days that count toward the Rule 4(C) period exceed 365 at this point in time, we do
not need to address the State’s motion to continue the April 24, 2012, trial.
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