                                                                              FILED
                                                                        Oct 23 2019, 8:54 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Elizabeth A. Flynn                                         Curtis T. Hill, Jr.
Braje Nelson & Janes, LLP                                  Attorney General of Indiana
Michigan City, Indiana                                     Matthew B. Mackenzie
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kyle Scott Dilley,                                         October 23, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-173
        v.                                                 Appeal from the LaPorte Superior
                                                           Court
State of Indiana,                                          The Honorable Michael S.
Appellee-Plaintiff.                                        Bergerson, Judge
                                                           Trial Court Cause No.
                                                           46D01-1804-F2-331



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019                              Page 1 of 12
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kyle Dilley (Dilley), appeals his convictions for dealing

      in methamphetamine with an enhancing factor, a Level 2 felony, Ind. Code §§

      35-48-4-1.1(2)(A)(e)(2), 35-50-2-4.5; dealing in marijuana with an enhancing

      factor, a Level 5 felony, I.C. §§ 35-48-4-10(a)(2)(C)(d)(1)(A), 35-50-2-6; and two

      Counts of possession of a narcotic drug with an enhancing factor, Level 5

      felonies, I.C. §§ 35-48-4-1.1(a)(2)(C)(d)(1)(A), 35-50-2-6.


[2]   We reverse.


                                                    ISSUES
[3]   Dilley presents us with two issues on appeal, one of which we find dispositive

      and restate as: Whether the trial court erred when it granted the State’s motion

      for a continuance based upon the unavailability of laboratory testing results.


                       FACTS AND PROCEDURAL HISTORY
[4]   Around noon on April 6, 2018, Officer Kyle Shiparski (Officer Shiparski) and

      Officer Francisco Rodriguez (Officer Rodriguez) of the Michigan City Police

      Department were driving in the area of 10th and Maple Streets in Michigan

      City, Indiana, when they observed a gold-colored sedan partially pulled into a

      parking space. The sedan was occupied by two people who were slumped over

      and appeared to be unconscious. The officers alerted emergency medical

      personnel and proceeded to perform a welfare check.




      Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019      Page 2 of 12
[5]   Dilley was seated in the driver’s seat, and the car’s engine was running. Officer

      Rodriguez tapped on the window and yelled in an effort to rouse Dilley. While

      standing outside the sedan attempting to awaken Dilley, Officer Rodriguez

      observed a hand-rolled paper containing what appeared to be either marijuana

      or synthetic marijuana in Dilley’s left hand. Officer Rodriguez opened the car

      door. Dilley had a black drawstring backpack on his lap. As Dilley regained

      consciousness and perceived the presence of the officer, he immediately closed

      his fist to conceal the object there. Officer Rodriguez asked Dilley for his

      identification, and Dilley retrieved his driver’s license from his wallet which

      was inside the drawstring bag on his lap. Officer Shiparski roused the

      passenger, who was also the owner of the vehicle. The passenger gave the

      officers consent to search the vehicle.


[6]   Officer Rodriguez asked Dilley to step out. Dilley was led to the front of the

      sedan. As Officer Rodriguez searched the vehicle, another officer who had

      arrived to assist observed Dilley reaching into his belt area for what was

      subsequently discovered to be a black zippered pouch containing a set of digital

      scales and empty Ziplock baggies. In addition, the vehicle’s driver’s-side door

      had a rigid, open area at the base of the door which could be used to store items

      such as maps. Clipped to the outside of the storage area was a cell phone case

      that contained what was later revealed to be three baggies containing

      methamphetamine, a baggie containing nine types of pills, including two tablets

      of morphine, and a baggie containing heroin. A search of the drawstring bag




      Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019       Page 3 of 12
      Dilley had been holding on his lap revealed a mason jar containing two bags of

      marijuana.


[7]   On April 6, 2018, the State filed an Information, charging Dilley with dealing in

      methamphetamine, dealing in marijuana, possession of a narcotic drug

      (morphine), and possession of a narcotic drug (heroin). The State also alleged

      that all the offenses were enhanced because Dilley had a prior conviction in

      2012 for dealing in heroin. On April 10, 2018, the trial court held Dilley’s

      initial hearing. Dilley requested a fast and speedy trial, and the trial court set a

      trial date of June 18, 2018.


[8]   On May 17, 2018, the trial court held a pre-trial conference. The State reported

      no issues with discovery. The parties and the trial court confirmed that trial

      was set for June 18, 2018. On May 31, 2018, the trial court held a final pre-trial

      conference. The trial court asked the prosecutor if all discovery had been

      completed. The prosecutor responded, “Judge, the only thing that’s

      outstanding is the official lab results from the lab. We’ve informed them of the

      trial date.” (Supplemental Transcript Vol. II, p. 22). The trial court confirmed

      the trial date of June 18, 2018.


[9]   On June 1, 2018, the State filed a verified motion for a continuance of the June

      18, 2018, trial date pursuant to Indiana Rule of Criminal Procedure 4(D) in

      which the prosecutor averred the following:


              5. Drug evidence was collected in this case, and lab results are
              not yet prepared regarding testing by the Indiana State Police
              Laboratory in Lowell, Indiana.
      Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019        Page 4 of 12
        6. On May 31, 2018, the State contacted lab director Paul Fotia
        in order to assess whether the results would be complete prior to
        the trial date.


        7. At that time, the State learned that the lab receives
        approximately 1500 drug cases for testing per month, many of
        which contain multiple items of evidence to be tested. The lab is
        able to process only 900-960 cases per month of the 1500 they
        receive.


        8. At this time, the Lowell Crime Laboratory should have four
        full time chemists performing the testing. However, one chemist
        has been transferred to another laboratory, and one is currently
        on vacation, leaving only two chemists to perform testing on
        drug cases.


        9. The testing in this case involves 7 separate items of evidence,
        some of which contain multiple baggies and multiple different
        types of pills, all of which require testing.


        10. For all these reasons, though the laboratory will make its best
        effort to secure the results in time for trial, it is unlikely to be
        complete by June 18, 2018.


        ****


        13. This evidence is necessary for the State to prove the charges
        alleged in the charging information, and the undersigned
        anticipates that a State Laboratory Chemist would testify at trial
        to the following, once results are complete:


                 a.     A chemist with the Indiana State Police Laboratory
                 received items for testing under police report number
                 DU18040004.

Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019          Page 5 of 12
               ****


               15. The absence of this evidence for the scheduled trial date is
               not at [sic] the result of any act by the State of Indiana.


       (Appellant’s App. Vol. II, pp. 46-48). The prosecutor further averred that she

       had contacted Dilley’s counsel to attempt to procure a stipulation to the

       preliminary drug testing results already disclosed but that Dilley had declined to

       stipulate.


[10]   On June 5, 2018, the trial court held a hearing on the State’s Rule 4(D)

       continuance motion. The prosecutor reiterated the arguments contained in her

       written motion and additionally represented that “[a]fter our last hearing I

       contacted the State Crime Lab, spoke to the director myself regarding, I was

       attempting to confirm that the lab results would be back by June 18th, but

       unfortunately the information I received is that it was, highly unlikely.”

       (Transcript Vol. II, p. 3). Dilley’s counsel objected to the continuance and

       argued to the trial court that “[w]e’re right up against the 70 days deadline.

       And that’s our position.” (Tr. Vol. II, p. 5). Dilley requested and was granted

       permission to address the trial court directly. He continued to assert his right to

       a speedy trial and offered to stipulate to the preliminary drug testing results in

       order to secure that right. The trial court granted the State’s motion for the

       continuance and reset Dilley’s trial date for September 24, 2018. In its written

       order granting the continuance, the trial court cited Rule 4(D) and found that

       the State had met its burden to show that the continuance was justified, despite


       Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019        Page 6 of 12
       Dilley’s objections and willingness to stipulate to the preliminary testing results.

       The trial court made no finding of court congestion meriting a continuance.


[11]   Dilley’s jury trial was eventually rescheduled for August 13, 2018, and took

       place over two days. An officer of the Michigan City Police Department

       testified that on June 4, 2018, he transported the evidence retrieved from the

       search of vehicle to the Indiana State Police Laboratory for testing. The results

       of that testing were admitted into evidence.


[12]   The jury found Dilley guilty of the underlying offenses, and, in a separate

       proceeding outside the presence of the jury, Dilley admitted that he had been

       convicted previously of dealing in heroin, as charged by the State as an

       enhancement. On September 27, 2018, the trial court sentenced Dilley to

       twelve years for dealing in methamphetamine and to three-year sentences for

       his remaining convictions, all to be served concurrently, for an aggregate

       sentence of twelve years.


[13]   Dilley now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
[14]   Dilley requested a speedy trial and argues that the trial court erred when it

       granted the State a continuance of his trial date pursuant to Indiana Criminal

       Rule 4(D) based upon the unavailability of the laboratory testing results. The

       right of an accused to a speedy trial is provided by our federal and state

       Constitutions. See U.S. Const. amend. VI; Ind. Const. art. 1, § 12. The

       mechanism for the enforcement of this right, Indiana Criminal Rule 4, generally
       Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019          Page 7 of 12
       provides that an accused must be brought to trial within seventy days of making

       a speedy trial motion unless he causes delay or there is insufficient time to try

       him due to court congestion. See Ind. Crim. Rule 4(B)(1). Criminal Rule 4 also

       provides for an extension of the time to bring a defendant to trial as follows:


               If when application is made for discharge of a defendant under
               this rule, the court be satisfied that there is evidence for the state,
               which cannot then be had, that reasonable effort has been made
               to procure the same and there is just ground to believe that such
               evidence can be had within ninety (90) days, the cause may be
               continued . . .


       Crim. R. 4(D). Thus, in order to grant a continuance as provided in Rule 4(D),

       the trial court must be satisfied that the State made a reasonable effort to

       procure the evidence. Smith v. State, 802 N.E.2d 393, 401 (Ind. Ct. App. 2013),

       trans. denied. Whether the requested delay is reasonable should be judged

       according to the circumstances of the particular case. Id. In addition, we

       evaluate the reasonableness of the State’s request for a trial delay in light of the

       information known or available to it at the time of the request. Small v. State,

       112 N.E.3d 738, 743 (Ind. Ct. App. 2018). As a general rule, a trial court’s

       decision to grant a Rule 4(D) continuance is reviewed for an abuse of

       discretion. Smith, 802 N.E.2d at 401.


[15]   Dilley argues that the State did not make reasonable efforts to procure the test

       results because it did not submit the evidence for testing until after it filed its

       request for a Rule 4(D) continuance. We note that, although the State offers a

       response to Dilley’s Rule 4(D) argument in its Brief of Appellee, it did not

       Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019           Page 8 of 12
       address Dilley’s argument pertaining to the timing of the sending of the drugs to

       the laboratory, which was the heart of his appellate claim regarding the

       impropriety of the Rule 4(D) continuance. The State’s “failure to respond to an

       issue raised in an appellant’s brief, is, as to that issue, akin to failing to file a

       brief.” Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002). Although this

       failure does not relieve us of our duty to correctly apply the law to the facts of

       the case, we may reverse the trial court if the appellant shows only prima facie

       error. Id. Prima facie error means error “at first sight, on first appearance, or on

       the face of it.” Id. With this reduced burden of persuasion in mind, we turn to

       the facts of this case.


[16]   Dilley invoked his right to a speedy trial at the earliest possible opportunity at

       his initial hearing on April 10, 2018. Dilley’s invocation of his speedy trial right

       meant that the State had until June 19, 2018, to bring him to trial. At Dilley’s

       initial hearing, the trial court set Dilley’s trial for June 18, 2018. Dilley never

       retracted his speedy trial request, and the June 18, 2018, trial date never

       changed before the State filed its Rule 4(D) continuance motion.


[17]   At the final pre-trial conference on May 31, 2018, the prosecutor informed the

       trial court that the only matter “outstanding” for trial preparation was the test

       results. (Supp. Tr. Vol. II, p. 22). In her Rule 4(D) continuance motion filed

       June 1, 2018, a mere seventeen days before trial, the prosecutor averred that the

       continuance was necessary because the testing results were “not yet prepared.”

       (Appellant’s App. Vol. II, p. 46). In her argument at the hearing on the

       continuance motion, the prosecutor represented to the trial court that she had

       Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019            Page 9 of 12
       personally contacted the director of the laboratory “to confirm that the lab

       results would be back by June 19th . . .” (Tr. Vol. II, p. 3). The implication of

       these statements was that testing was already underway. The prosecutor did

       not inform the trial court in either her written or oral motions that the evidence

       had not been conveyed to the State Laboratory for testing and was, in fact, not

       conveyed until June 4, 2018, after the written continuance motion was filed.

       This was a fact that had to have been known to the prosecutor when she argued

       the continuance motion on June 5, 2018, and which she should have made

       known to the trial court before it rendered its ruling.


[18]   Rule 4(D) requires that the State show “that reasonable effort has been made to

       procure” the missing evidence. It cannot be said that reasonable efforts had

       been made to procure the evidence for purposes of Rule 4(D) if that effort had

       not actually been commenced by initiating the testing process before the filing

       of the continuance motion. Cf. Chambers v. State, 848 N.E.2d 298, 304 (Ind. Ct.

       App. 2006) (finding that the State initially made reasonable efforts to procure

       test results where, on the same day speedy trial request was made, it sent drugs

       to the laboratory and procured expedited processing), trans. denied. We

       conclude that, under the circumstances of this case, Dilley has demonstrated

       that the Rule 4(D) continuance was prima facie error. See Cox, 780 N.E.2d at

       1162.


[19]   The State argues that we may affirm the trial court’s grant of the continuance

       based on congestion of the trial court’s calendar because other matters were



       Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019      Page 10 of 12
       scheduled for trial in the same court on June 18, 2018. 1 We reject this

       argument. Dilley’s trial date was confirmed at the May 31, 2018, final pre-trial

       conference in this matter. The State’s written continuance motion and its oral

       argument on that motion were based on Rule 4(D), not court congestion. At

       the June 5, 2018, hearing on the continuance motion, the trial court did not

       orally indicate when granting the continuance that court congestion factored

       into its decision, and the trial court did not cite court congestion in its written

       order granting the continuance.


[20]   Dilley was not brought to trial by June 19, 2018. He preserved his speedy trial

       right by objecting to the Rule 4(D) continuance before the trial court granted it

       and reset his trial date outside of the seventy-day period. See Otte v. State, 967

       N.E.2d 540, 544 (Ind. Ct. App. 2012) (holding that defendant preserved his

       speedy trial claim by objecting to a new trial date even though he did not also

       move for discharge), trans. denied. As such, Dilley was entitled to discharge of

       the charges against him. 2




       1
         In support of this argument, the State filed motions to compel the preparation and transmission of
       supplemental transcripts of hearings held in this and another criminal matter, State v. Aldridge, Cause Number
       46D01-1606-FA-3. Although the State’s request for the Aldridge transcript was initially held in abeyance for
       the writing panel to address, on September 11, 2019, the motions panel of the court ordered all of the
       supplemental transcripts, which had already been prepared, to be transmitted to the Clerk of Courts, who
       docketed the supplemental transcripts on September 17, 2019. Therefore, it appears that all pending motions
       related to the transcripts have been resolved. In its Brief, the State requested that we permit it to submit a
       second Brief after the transmission of the supplemental transcripts. The State did not file a separate motion
       requesting that relief. Given our resolution of the case, we hereby deny that request.
       2
         Because we conclude that Dilley was entitled to discharge, we do not address the sufficiency of the
       evidence supporting his convictions.

       Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019                             Page 11 of 12
                                              CONCLUSION
[21]   Based on the foregoing, we conclude that Dilley has demonstrated that the trial

       court’s grant of the Rule 4(D) continuance under the facts and circumstances of

       this case constituted prima facie error.


[22]   Reversed.


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




       Court of Appeals of Indiana | Opinion 19A-CR-173 | October 23, 2019   Page 12 of 12
