ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Bart M. Betteau                                             Gregory F. Zoeller
New Albany, Indiana                                         Attorney General of Indiana

                                                            Monika Prekopa Talbot
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana
______________________________________________________________________________

                                            In the
                                                                                FILED
                            Indiana Supreme Court                            May 31 2012, 11:10 am
                            _________________________________
                                                                                      CLERK
                                                                                   of the supreme court,

                                    No. 31S05-1108-CR-512                          court of appeals and
                                                                                          tax court




MICKEY CUNDIFF,
                                                            Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                      Appellee (Plaintiff below).
                            _________________________________

              Appeal from the Harrison Superior Court, No. 31D01-0912-FD-889
                        The Honorable Glenn Hancock, Special Judge
                          _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 31A05-1008-CR-607
                            _________________________________

                                         May 31, 2012


David, Justice.

       In this case, the State filed charges against the defendant, and after a brief period of
incarceration, the defendant was released. Shortly after his release, the defendant was again
incarcerated but on a probation-revocation case. While he was incarcerated on the probation-
revocation case, the defendant filed a Criminal Rule 4(B) motion, requesting a speedy trial on the
pending charges.
          The trial court denied the motion.         We affirm, holding that Criminal Rule 4(B) is
available to a defendant only when the defendant is held on the pending charges for which he
requests a speedy trial.

                                      Facts and Procedural History

          On December 19, 2009, a police officer pulled over Mickey Cundiff in Harrison County,
Indiana. After Cundiff consented to a certified breath test, the officer transported him to the
county sheriff’s department. The breath test revealed that Cundiff had a blood alcohol content of
.12. On December 21, 2009, the trial court found probable cause for Mickey Cundiff’s arrest,
and the following day, the State charged Cundiff with one felony and three misdemeanor
operating-while-intoxicated offenses (Cause FD-889). Cundiff posted bond and was released
from incarceration on Cause FD-899 on January 11, 2010.

          After this release and before March 15, 2010, Cundiff was incarcerated on a probation-
revocation case (Cause FD-190).1 On March 15, 2010, Cundiff filed a motion for a speedy trial
in Cause FD-899, relying on Indiana Criminal Rule 4(B).

          At some point, Cundiff filed a motion for discharge in Cause FD-899. That motion was
not included in the record; however, the State filed its opposition to Cundiff’s motion for
discharge on June 25, 2010. Among other things, the State argued that discharge was improper
because Cundiff was not being held on Cause FD-899 and, thus, his motion was “moot.”

          On July 22, 2010, the trial court held a hearing on Cundiff’s motion to discharge. On
August 26, 2010, the trial court denied the motion and also held a bench trial in Cause FD-899.
The trial court found Cundiff guilty of Class D felony operating a vehicle while intoxicated.

          Cundiff appealed the trial court’s denial of his motion for discharge, and the Court of
Appeals affirmed the trial court. Cundiff v. State, 950 N.E.2d 1279, 1283 (Ind. Ct. App. 2011).
We granted transfer.




1
    The record does not reveal the exact date of Cundiff’s probation-revocation incarceration.


                                                       2
                                            Standard of Review

          The speedy-trial issue today involves a pure question of law; accordingly, the appropriate
standard of review is de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).

                                       Indiana Criminal Rule 4(B)

          Both the U.S. and Indiana Constitutions protect the right of an accused to a speedy trial.
U.S. Const. amend. VI; Ind. Const. art. 1, § 12. The speedy-trial right is a “‘fundamental
principle of constitutional law’” that has been zealously guarded by our courts. Clark v. State,
659 N.E.2d 548, 551 (Ind. 1995) (quoting Castle v. State, 237 Ind. 83, 85, 143 N.E.2d 570, 572
(1957)).

          Indiana Criminal Rule 4 generally implements the constitutional right of an accused to a
speedy trial.2 Bridwell v. State, 659 N.E.2d 552, 553 (Ind. 1995). Subsection (B) of the Rule is
at issue, and it provides, in part, that “[i]f any defendant held in jail on an indictment or an
affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy
(70) calendar days from the date of such motion.” Ind. Crim. Rule 4(B)(1). 3 The Rule continues
by listing conditions that excuse a failure to bring an accused to trial within the seventy-day
timeframe. Id.


2
  Importantly, Criminal Rule 4 does not cover every aspect of the constitutional right to a speedy trial.
Cooley v. State, 172 Ind. App. 199, 202, 360 N.E.2d 29, 32 (1977), trans. denied; see also State v. Moles,
166 Ind. App. 632, 646, 337 N.E.2d 543, 552 (1975) (“An accused . . . has two distinct but related rights
to have the processes of justice move deliberately toward the end of obtaining a trial within a reasonable
and agreeable time—one right is guaranteed by the Constitutions and one by the implementing CR. 4.”).
3
    Criminal Rule 4(B)(1) provides in full as follows:
          (B)(1) Defendant in Jail—Motion for Early Trial. If any defendant held in jail on an
          indictment or an affidavit shall move for an early trial, he shall be discharged if not
          brought to trial within seventy (70) calendar days from the date of such motion, except
          where a continuance within said period is had on his motion, or the delay is otherwise
          caused by his act, or where there was not sufficient time to try him during such seventy
          (70) calendar days because of the congestion of the court calendar. Provided, however,
          that in the last-mentioned circumstance, the prosecuting attorney shall file a timely
          motion for continuance as set forth in 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.


                                                         3
       It is well established that Criminal Rule 4 places an “affirmative duty” on the State to
bring a defendant to trial. Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011). By the same
token, the purpose of Criminal Rule 4 is not to provide defendants with a technical means to
avoid trial but rather to assure speedy trials. Loyd v. State, 272 Ind. 404, 410, 398 N.E.2d 1260,
1266 (1980).

       There is no dispute that more than seventy days elapsed after Cundiff filed his Criminal
Rule 4(B) motion for a speedy trial. The parties dispute, however, the applicability of Criminal
Rule 4(B) to Cundiff’s case.

       The State points out that Cundiff was not incarcerated on the pending charges at issue
when he filed his Criminal Rule 4(B) motion. The State asserts that for Criminal Rule 4(B) to
apply, “incarceration on the current offense must be the reason that the defendant is in jail.” The
State alternatively argues that if Criminal Rule 4(B) does apply, various delays were attributable
to Cundiff, which would excuse any failure in bringing him to trial within the seventy-day
deadline.

       Cundiff, on the other hand, contends that Criminal Rule 4(B) applies despite the fact that
he was incarcerated for a different reason and not on the charges for which he requested a speedy
trial. Cundiff acknowledges that case law from the Court of Appeals supports the State’s
position on 4(B)’s applicability, but he directs us to precedent from this Court, asserting that it is
consistent with his position.

       The Court of Appeals agreed with the State, concluding that for Criminal Rule 4(B) to
apply, “a defendant must be incarcerated on the pending charges to be entitled to the benefits of
the seventy-day speedy trial rule.”       Cundiff, 950 N.E.2d at 1283.         Before reaching this
conclusion, however, the Court of Appeals acknowledged a split between its own panels on the
issue. Id. at 1282. It also pointed to possibly ambiguous language from this Court’s precedent
on Criminal Rule 4(B)’s applicability in these types of situations. Id. at 1281–82.

       We write to clarify any ambiguity within this Court’s precedent on the issue and to
resolve the split within the Court of Appeals.          We address the question of whether an
incarcerated defendant has the right to be tried within seventy days under Criminal Rule 4(B)



                                                  4
when he is being held for an unrelated offense and not on the charges for which speedy trial is
demanded.

       Our analysis begins with this Court’s decision in Poore v. State, 685 N.E.2d 36 (Ind.
1997). In Poore, this Court was faced with the narrow issue of whether Criminal Rule 4(B)’s
time limits applied to a retrial of a habitual-offender finding. 685 N.E.2d at 36. Although the
procedural history in Poore varies from that of the present case, Poore’s interpretation of
Criminal Rule 4(B) is instructive. Importantly, separate panels of the Court of Appeals have
interpreted Poore differently, resulting in a split within that court on the precise question before
us today.

       In Poore, the defendant was sentenced to twenty years on a burglary conviction, which
was enhanced by thirty years based on a habitual-offender finding. Id. at 37. Years later, a post-
conviction court vacated one of the predicate felonies supporting the habitual-offender
enhancement.     Id.    This eventually led to the post-conviction court also vacating the
enhancement and ordering that the habitual-offender count be set for retrial. Id.

       The Poore defendant filed a speedy-trial motion under Criminal Rule 4(B), asserting that
he had a right to a trial within seventy days. Id. Once the seventy-day time limit elapsed without
trial, the defendant filed a motion for discharge. Id.

       Ultimately, this Court determined that Criminal Rule 4(B) applied to retrials of habitual-
offender counts and thus the defendant was entitled to discharge. Id. at 41. In making this
determination, this Court addressed the text of the rule and previous cases that dealt with the
applicability of Criminal Rule 4(B). Id. at 38–41.

       Language from the analysis in Poore has been construed to support two divergent
conclusions on Criminal Rule 4(B)’s applicability to defendants who are being held for an
unrelated offense and not the charge for which speedy trial was requested. Compare Mork v.
State, 912 N.E.2d 408, 411 (Ind. Ct. App. 2009) (citing Poore and concluding that for Criminal
Rule 4(B) to apply “incarceration on a present offense must be a reason that the defendant is in
jail”), with Brown v. State, 825 N.E.2d 978, 981–83 (Ind. Ct. App. 2005), trans. denied (citing
Poore and concluding that a defendant was entitled to discharge under Criminal Rule 4(B) when



                                                  5
he was incarcerated for a prior conviction but not for the pending charges for which he requested
a speedy trial). After closely examining Poore, we believe that its language largely supports a
conclusion that a defendant must be held on the charge for which he requests a speedy trial for
Criminal Rule 4(B) to apply.

          In Poore, this Court first stated that the phrase in Criminal Rule 4(B), “held in jail on an
indictment or affidavit,” was “not entirely without ambiguity” but that it “clearly contemplates a
defendant in custody on a pending criminal charge.” 685 N.E.2d at 38. Importantly, the Poore
defendant met this requirement, as he was “‘being held upon the habitual charge as set forth in
the indictment or information.’” Id. at 39 (quoting Poore v. State, 660 N.E.2d 591, 597 (Ind. Ct.
App. 1996) (Sullivan, J., dissenting)).

          The Court then addressed the argument that Criminal Rule 4(B) was inapplicable because
the defendant was being held before his habitual-offender retrial on the burglary-conviction
sentence.     Id. at 40.   In discounting this argument, this Court used language that perhaps
engendered some confusion as to when Rule 4(B) applies. This Court first stated that “[e]ven
assuming, however, that [the defendant] would have been in jail anyway due to his sentence on
the burglary conviction, he still would have been entitled to the benefit of Rule 4(B).” Id. This
Court then cited three previous decisions to support its conclusion: Fossey v. State, 254 Ind.
173, 258 N.E.2d 616 (1970); Gill v. State, 267 Ind. 160, 368 N.E.2d 1159 (1977); and Jackson v.
State, 663 N.E.2d 766 (Ind. 1996). It determined that those cases “stand for the proposition that
incarceration due to the pending charge at issue need not be the only reason the defendant is in
jail at the time the speedy trial is requested under Rule 4(B).” Poore, 685 N.E.2d at 40 (emphasis
added).

          Poore, especially its explicit statement that the rule “clearly contemplates” a defendant
being held on a pending criminal charge, supports a holding that Criminal Rule 4(B) applies only
if a defendant is being held on the charge for which he requests a speedy trial. Poore also
supports a holding that as long as the defendant is in jail on the pending charge, Criminal Rule
4(B) applies to that charge even if the defendant is also being held for another reason. On the
other hand, Poore did not extend the applicability of Criminal Rule 4(B) to defendants who are




                                                   6
not being held on the pending charge for which a speedy trial is requested but for a different
reason altogether.

       It is true that Poore’s reliance on Jackson, 663 N.E.2d 766, is slightly misleading.
Jackson involved a defendant who was being held on unrelated charges and who was
subsequently charged for other offenses. 663 N.E.2d at 768. The Jackson defendant filed a
Criminal Rule 4(B) motion on the later charges, and this Court determined the defendant was
entitled to discharge because the State had failed to bring him to trial within seventy days. Id. at
770. It is unclear from the opinion whether the Jackson defendant was also being held on the
charges for which he requested a speedy trial. Thus, the facts could be construed to support the
position that for Criminal Rule 4(B) to apply, incarceration for any reason suffices, even if the
defendant is not held on the charge for which he requests a speedy trial. But the crux of the
Jackson opinion was whether the State’s failure to bring the defendant to trial within seventy
days was excusable. Id. at 768–70. This Court never delved into whether Rule 4(B) applied in
the first place—perhaps because the issue was never raised.

       Importantly, Poore relied on cases that explicitly involved the application of Rule 4(B) to
defendants who were being held on the charge for which they filed a speedy-trial motion and
also another reason. In Fossey, this Court noted that, in light of U.S. Supreme Court precedent, a
judicially-created exception that made Criminal Rule 4 unavailable for a defendant “seeking a
trial on a charge pending while he, at the same time, is in jail on another conviction” could not be
maintained. 254 Ind. at 179, 258 N.E.2d at 619. Later, in Gill, this Court stated that “[t]he fact
that incarceration during such post-arraignment period may also be required by an order in
another case does not render Criminal Rule 4 inapplicable.” 267 Ind. at 164, 368 N.E.2d at 1161
(emphasis added). Thus, both of these cases stand for the proposition that Criminal Rule 4(B) is
available to a defendant who is being held on the pending charge for which he requests a speedy
trial even if he is also being held for a separate reason. Neither of those cases extended the
availability of Criminal Rule 4(B) to defendants who, like Cundiff, were incarcerated, but not on
the charge for which they requested a speedy trial.

       Ultimately, the most reasonable interpretation of Poore’s language on Criminal Rule
4(B)’s availability—“incarceration due to the pending charge at issue need not be the only reason



                                                 7
the defendant is in jail”—is the following: for Rule 4(B) to apply, the defendant must be
incarcerated on the charge for which he seeks a speedy trial, and as long as that requirement is
met, the availability of Rule 4(B) is not affected if the defendant is also incarcerated on other
grounds. 658 N.E.2d at 40. Accordingly, Criminal Rule 4(B) was not available to Cundiff on
the pending charges for which he sought a speedy trial because he was not incarcerated on those
charges.

                                          Conclusion

       We affirm the trial court’s denial of Cundiff’s Criminal Rule 4(B) motion to discharge.

Dickson, C.J., and Sullivan, Rucker, and Massa, JJ., concur.




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