Ritchison v. State

• Decision Date: 30 March 1999
• Docket Number: No. 43A04-9808-CR-396,43A04-9808-CR-396
• Parties: Tad E. RITCHISON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 604

708 N.E.2d 604

Tad E. RITCHISON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 43A04-9808-CR-396.

Court of Appeals of Indiana.

March 30, 1999.

Kurt Bentley Grimm, Grimm & Grimm Auburn, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General Indianapolis, Attorneys for Appellee.

OPINION

GARRARD, Judge

In this interlocutory appeal, Tad Ritchison argues that the trial court committed an error of law or abused its discretion in overruling and denying his motion for discharge pursuant to Criminal Rule 4(C).

For clarity's sake, we have numbered the relevant facts and procedural history as follows:

1. May 17, 1997--Ritchison was arrested.

2. May 21, 1997--The State charged Ritchison with Operating a Vehicle While Intoxicated, a class A misdemeanor, as well as the D felony enhancement.

3. May 22, 1997--The trial court held an initial hearing advising Ritchison of his speedy trial right.

4. July 7, 1997--Ritchison demanded a jury trial.

5. August 25, 1997--A telephonic status hearing was held. Plea negotiations began around this time.

6. Some time in February--The State sent a letter to defense counsel asking the status of the State's pending plea proposal, but received no response.

7. May 13, 1998--The State left a message for defense counsel about a trial setting, but received no response.

8. May 14, 1998--The State filed a motion seeking a jury trial setting, but received no response from defense counsel. A trial date was set for May 21, 1998. Attempts to notify defense counsel of the May 21, 1998 date were unsuccessful. The secretary at Ritchison's counsel's office stated that defense counsel was out of the office and that he would be leaving for vacation outside of Indiana until after May 25, 1998.

9. May 19, 1998--The State filed and the trial court granted a motion for continuance of the jury trial due to a congested court calendar. Record at 37. The trial court found that it had previous matters scheduled on May 21, 1998, including: three criminal sentencings, four criminal change of plea hearings, one modification of sentence hearing, two criminal initial hearings, and thirty-two civil hearings. Record at 47. The jury trial was continued to July 30, 1998.

10. May 29, 1998--Ritchison filed an objection to the July 30, 1998 trial date and a Criminal Rule 4(C) motion for discharge. A hearing on the matter was scheduled.

11. June 11, 1998--Ritchison filed a motion asking the court to take judicial notice of its calendar and official court reporter's log and to make those documents a part of the record. The State did not respond to, and the trial court did not rule upon, that particular motion.

12. July 16, 1998--The trial court issued an order denying Ritchison's motion for discharge.

13. July 20, 1998--Ritchison filed a petition to certify for interlocutory appeal the denial of his motion. The trial court granted the petition and we agreed to address the matter.

Further facts shall be provided as necessary.

The United States Supreme Court declared the Sixth Amendment right to a speedy trial enforceable against the states. Gilmore v. State, 655 N.E.2d 1225, 1227 (Ind.1995). "Acknowledging Indiana's obligation to provide a speedy trial, we specifically implemented an accused's right to a speedy trial with Indiana Rule of Criminal Procedure 4." Jackson v. State, 663 N.E.2d 766, 767 (Ind.1996).

Ritchison's argument is three-fold. First, he contends that he had no affirmative duty to ensure that he was brought to trial within one year and that he should not be charged for any delay which he caused or acquiesced to prior to his trial date being set. Second, he claims that the State's motion for continuance did not comply with Criminal Rule 4(C). Third, he argues that the trial court's finding of congestion is clearly erroneous.

Ritchison is correct in asserting that the duty to bring a defendant to trial within one year is an affirmative one which rests with the State, and that the defendant has no obligation to remind the court of the State's duty. "A defendant is not obliged under [Criminal Rule 4(C) ] to push the matter to trial." Diederich v. State, 702 N.E.2d 1074, 1075 (Ind. 1998) (also noting that a defendant whose trial is set outside the one-year period must object to the setting at the earliest opportunity or be deemed to have waived his right to discharge under the rule); see also Nance v. State, 630 N.E.2d 218, 220 (Ind.Ct.App.1994). The second part of his first argument, that he should not be charged for any delay which he caused or acquiesced to prior to his trial date being set, is more complex.

We have stated, "[i]f a defendant seeks or acquiesces in any continuance, or if the delay is caused by his own motion or action, the one-year statute is extended accordingly." Vaillancourt v. State, 695 N.E.2d 606, 609 (Ind.Ct.App.1998), trans. denied; see also Frisbie v. State, 687 N.E.2d 1215, 1216 (Ind.Ct.App.1997), trans. denied; Wheeler v. State, 662 N.E.2d 192, 193-94 (Ind.Ct.App.1996). However, we have also stated, "[w]hen a defendant agrees to a continuance before a trial date is set, those days are not attributed to the defendant for purposes of Crim.R. 4(C)." Solomon v. State, 588 N.E.2d 1271, 1272 (Ind.Ct.App.1992); see also Nance, 630 N.E.2d at 220.

Vaillancourt did not involve a defendant causing delays prior to the time his trial date was set. Neither Frisbie nor Wheeler dealt with delay occasioned by plea agreement negotiations. Although we conclude that Vaillancourt, Frisbie, and Wheeler are distinguishable from Ritchison's case, we are not persuaded that Solomon and Nance necessarily determine our resolution of this issue.

Unlike the defendants in Solomon and Nance, Ritchison did not simply agree to a continuance before a trial date was set. Ritchison, through his counsel, took affirmative action to stop the running of the speedy trial time period. During an August 25, 1997 pre-trial conference, Ritchison's counsel indicated that the parties were in the process of negotiating a settlement and stated that a trial date would not be necessary. In February of 1998, the State sent a letter to Ritchison's counsel asking the status of the State's pending plea proposal. Ritchison's counsel did not respond. On May 14, 1998, the State filed a motion seeking a jury trial setting, and a trial date was set for May 21, 1998. Under these particular circumstances, Ritchison was properly charged for the delay. See Miller v. State, 650 N.E.2d 326, 329 (Ind.Ct.App.1995), trans. denied, (noting that delay is not chargeable to defendant, for purposes of speedy trial claim, where defendant has engaged in informal plea negotiations with the State, unless it appears that defendant's acts caused actual delay in scheduling of trial).

Thus, the Criminal Rule 4 timetable was tolled during the negotiations which occurred from approximately August 25, 1997 through February of 1998. As such, that six month time period is attributable to Ritchison, and does not count against the State for purposes of a Criminal Rule 4 motion. Adding six months to the original May 21, 1998 date, we conclude that the Criminal Rule 4 time was extended to November of 1998.

Upon the State's motion, the trial court continued Ritchison's trial date from May 21, 1998 to July 30, 1998. The July 30, 1998 trial date was well before the expiration of the revised November 1998 Criminal Rule 4(C) time period. Likewise, the Criminal Rule 4(C) time period was further tolled by Ritchison's action in filing this interlocutory appeal. Accordingly, even if it was clearly erroneous for the trial court to have found that its calendar was congested on May 21, 1998, and even if the State's motion for continuance did not comply with Criminal Rule 4(C), Ritchison's motion for discharge was properly denied. ¹

To reach any other result would be to encourage defendants to improperly utilize the rule. Any defendant could inform a court that no trial date was necessary, but then later move for a discharge when the one-year time period expired. Criminal Rule 4's purpose is to ensure early trials, not to permit defendants to escape trials by manipulating the means designed for their protection. See State Ex Rel. O'Donnell v. Cass Superior Court, 468 N.E.2d 209, 211 (Ind.1984). Our decision supports the intent of the rule.

Affirmed.

BAKER, J. concurs.

ROBB, J. dissents and files separate opinion.

ROBB, Judge, dissenting

I respectfully dissent from the majority opinion. The majority bases its decision on the alleged representation to the trial court by defense counsel that no trial date was necessary. Without deciding whether this representation was delay attributable to the defendant, I conclude that there is simply no evidence to support that such a representation was ever made. In fact, the trial judge admits as much in his findings:

6. On or about July 22, 1997, Kurt Bentley Grimm and Chief-Deputy Prosecuting Attorney, Byron L. Tinkey, held a pretrial conference. Counsel for both parties appeared in chambers following pretrial conference. Defendant's counsel indicated that the parties were in the process of negotiating a settlement and that a trial date would not be necessary.

7. The Court has no written records or recorded proceedings in regard to the pretrial conference in this matter.

(R. 46-47) (emphasis added). Not only does the trial court expressly acknowledge that there is no evidence in the record to support finding number six, there is actually evidence in the record which contradicts much of the factual information contained in the finding. The record does not indicate that a conference was held on or about July 22, 1997. ² The only evidence in the record referring to a pretrial conference states that a conference was held on August 25, 1997; moreover, this memo indicates that the conference was not held in person in the trial judge's chambers, but...