                                                                                      FILED
                                                                                  Apr 24 2018, 9:10 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Curtis T. Hill, Jr                                         Laura Sorge Fattouch
      Attorney General                                           Sorge Law Firm, LLC
                                                                 Lawrenceburg, Indiana
      Ellen H. Meilaender
      Supervising Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          April 24, 2018
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 69A01-1708-CR-1805
              v.                                                 Appeal from the Ripley Superior
                                                                 Court
      Daniel L. Myers,                                           The Honorable Darrell M. Auxier,
      Appellee-Defendant                                         Special Judge
                                                                 Trial Court Cause No.
                                                                 69D01-1512-F6-152



      Vaidik, Chief Judge.



                                            Case Summary
[1]   With some exceptions, Criminal Rule 4(C) guarantees a defendant the right to

      stand trial within one year of arrest or the date charges are filed, whichever is

      later. If, during the one-year period, the trial court sets a trial date beyond the

      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1805 | April 24, 2018                           Page 1 of 7
      one-year period, the defendant is obligated to object in time for the court to

      reset the trial for a date within the one-year period, otherwise he acquiesces to

      the date. When a defendant fails to object timely, he cannot then move for

      discharge under Rule 4(C) when the one-year period expires.


[2]   In this case, 20 days before the one-year period was to expire, the court held a

      pretrial conference and set Myers’s trial for a date beyond the one-year period.

      Myers did not object. Nevertheless, shortly after the period had expired, Myers

      moved for discharge under Rule 4(C), which the trial court granted. The State

      appeals and argues that by failing to object during the one-year period, Myers

      acquiesced to the trial date and waived his motion for discharge. We agree and

      reverse and remand for further proceedings.



                              Facts and Procedural History
[3]   On December 3, 2015, the State charged Myers with three counts of drunk

      driving. As a result of numerous delays, some of which were attributable to

      Myers, the case was still pending in 2017. On May 26, 2017, the trial court

      held a pretrial conference at which a trial date was to be set. As of that date, 20

      days remained in the one-year period under Rule 4(C)—that is, the State had

      until June 15 to bring Myers to trial.1 But when the trial court asked if there




      1
        This calculation is different from what the parties argued to the trial court. See Tr. Vol. II pp. 42-43 (Myers
      arguing that the period had expired, or at best, 2 days remained) and p. 44 (State arguing that 13 days
      remained in the one-year period). On appeal, however, the State’s calculation is that there were 20 days
      remaining in the one-year period as of May 26, 2017, and Myers does not challenge this calculation.

      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1805 | April 24, 2018                             Page 2 of 7
      was any Rule 4(C) issue, neither attorney raised any such concern. The trial

      was then scheduled for November 14, 2017, without objection from either side.


[4]   On June 23, after the one-year period had expired, Myers filed a motion for

      discharge under Rule 4(C), explaining:


              At the May 26, 2017 telephonic pretrial, Defense Counsel had
              not completed an assessment of the Criminal Rule 4[(C)] issue.
              Following a conversation with the State, Defense Counsel began
              reviewing the timeline. Only on June 22, 2017 did Defense
              Counsel complete his calculations and determine that a Criminal
              Rule 4[(C)] issue existed.


      Appellant’s App. Vol. II p. 109. A hearing was held on the motion, and the

      State argued that Myers had acquiesced to the November 2017 trial date by not

      objecting when that date was set at the pretrial conference. Myers’s attorney

      disagreed and reiterated that, as of May 26, he “didn’t know that there was a

      CR 4 issue . . . .” Tr. Vol. II p. 68. He added that June 22 “was the date that I

      put the math together” and that he did not “believe that there was any

      unreasonable delay in sitting down and doing the calculation” on that day. Id.

      The trial court agreed that the motion was “early enough,” id. at 69, and

      ordered Myers discharged.


[5]   The State now appeals.




      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1805 | April 24, 2018   Page 3 of 7
                                  Discussion and Decision
[6]   The State contends that Myers waived the right to move for discharge under

      Rule 4(C) because he did not object to the November 2017 trial date during the

      pretrial conference at which that date was set. Rule 4(C) 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 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.


[7]   “The State’s duty to try the defendant within one year is affirmative, and the

      defendant is under no obligation to remind the State of its duty.” State v. Delph,

      875 N.E.2d 416, 420 (Ind. Ct. App. 2007), trans. denied. If, however, during the

      one-year period, the court sets a trial date that is beyond the one-year period

      “and the defendant is or should be aware that the setting is beyond that period,

      it is his obligation to object at the earliest opportunity so that the court can reset

      the trial for a date within the proper period.” Id. If the defendant sits idly by

      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1805 | April 24, 2018    Page 4 of 7
      and does not object to the trial date, he will be deemed to have acquiesced to

      the date. Id.


[8]   Here, it is undisputed that Myers did not object during the one-year period.

      The State had 20 days remaining in the one-year period when the pretrial

      conference was held on May 26. At that conference, the trial court asked either

      party if there was any Rule 4(C) issue, but neither party expressed any concern.

      Trial was then set for November 2017. Myers did not object. Once the trial

      court asked about any Rule 4(C) issue, Myers was made aware that an issue

      may exist. Myers, however, did not calculate the Rule 4(C) deadline until June

      22—7 days after the one-year period expired—and then moved for discharge.2


[9]   Nevertheless, Myers contends that his motion was timely because he filed it

      “the same day he made the calculation of the time period remaining under Rule

      4(C).” Appellee’s Br. p. 10. Myers cites Havvard v. State, presumably for the

      following proposition: “When a defendant learns within the period provided by

      the rule that the case is set for trial at a time beyond the date permitted, the

      defendant must object to such a trial setting at the earliest opportunity.” 703

      N.E.2d 1118, 1121 (Ind. Ct. App. 1999) (emphasis added). Myers renews his

      argument and takes the position that this passage allows a defendant to object




      2
       Throughout his brief, Myers refers to his June 23 filing as an “objection.” See Appellee’s Br. pp. 5-7, 9-10.
      But because the document was filed after the one-year period had expired, it was a motion for discharge, not
      an objection. See Martin v. State, 419 N.E.2d 256, 259 (Ind. Ct. App. 1981) (explaining the difference between
      an objection to a trial date—made during the one-year period—and a motion for discharge—made after the
      one-year period expires).

      Court of Appeals of Indiana | Opinion 69A01-1708-CR-1805 | April 24, 2018                          Page 5 of 7
       to a trial date when he “learns” that the date is outside of the one-year period,

       regardless of when he “learns” that fact. The first problem with his contention

       is that Havvard also states that “[a]n objection must be lodged in time to permit

       the trial court to reset the trial for a date within the proper period.” Id.

       (emphasis added). In this case, there is no question that Myers did not alert the

       trial court in time to permit it to reset the trial for a date within the one-year

       period.


[10]   Furthermore, we are not convinced that the use of the word “learns” in Havvard

       was meant as an invitation for a defendant to calculate the Rule 4(C) deadline

       at his convenience, as Myers contends. This would eliminate the defendant’s

       burden to object during the one-year period to a trial date that is set beyond the

       deadline. Ideally, Myers’s attorney would have been tracking the Rule 4(C)

       deadline since the beginning of the case and would have objected as soon as the

       court mentioned a November 2017 trial date. At the very least, Myers’s

       attorney should have calculated the deadline reasonably soon after the pretrial

       conference—at which the trial court specifically inquired about Rule 4(C)—

       and objected with time still remaining in the one-year period. Instead, Myers

       waited nearly thirty days to do the calculation and alert the court that the trial

       was set for a date beyond the one-year period. Because Myers failed to object

       to the November 2017 trial date before the one-year period expired, he

       acquiesced to the trial date and waived any claim to discharge under Rule 4(C).

       See State v. Black, 947 N.E.2d 503, 509 (Ind. Ct. App. 2011) (concluding that

       defendant acquiesced to the trial date beyond one-year period and waived his

       Court of Appeals of Indiana | Opinion 69A01-1708-CR-1805 | April 24, 2018     Page 6 of 7
       right to be discharged under Rule 4(C) by not objecting before period expired);

       cf. Havvard, 703 N.E.2d at 1121 (holding that a 47-day delay before objecting to

       a trial date beyond the one-year period was not unreasonable because the State

       still had 4 months before the period expired).3


[11]   Of course, this does not mean that the State is now free to try Myers whenever

       it pleases. As of May 26, the State had 20 days left on its one-year period under

       Rule 4(C). Therefore, within 7 days of this opinion being certified, the trial

       court shall hold a hearing and, if Myers demands it, set a trial within 20 days of

       the hearing. If court congestion prevents the court from setting a date within

       that timeframe, the court should make an explicit finding to that effect and set

       the trial for the next available date.


[12]   Reversed and remanded.


       May, J., and Altice, J., concur.




       3
         Myers also contends, “Even if the trial judge had been aware of the twenty-day (20) day time period
       remaining at the telephonic pretrial conference on May 26, 2017, it is unlikely the judge would have been
       able to set a trial date before the time period expired.” Appellee’s Br. p. 10. There is nothing in the record to
       indicate whether the trial could have been held before the expiration of the one-year period. And even if
       court congestion would have prevented that, it is well established that the one-year period can be extended
       due to court congestion. See Logan v. State, 16 N.E.3d 953, 961 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 69A01-1708-CR-1805 | April 24, 2018                             Page 7 of 7
