953 N.E.2d 545 (Ind.App. 2011), 38A02-1011-CR-1175, Feuston v. State

Docket Nº38A02-1011-CR-1175.
Citation953 N.E.2d 545
Opinion JudgeCRONE, Judge.
Party NameGeorge A. FEUSTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyDale W. Arnett, Winchester, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelROBB, C.J., concurs in result with separate opinion. NAJAM, concurs. ROBB, Chief Judge, concurring in result with opinion.
Case DateAugust 19, 2011
CourtCourt of Appeals of Indiana

Page 545

953 N.E.2d 545 (Ind.App. 2011)

George A. FEUSTON, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 38A02-1011-CR-1175.

Court of Appeals of Indiana.

August 19, 2011

Page 546

Dale W. Arnett, Winchester, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

George A. Feuston was arrested in Jay County and charged with theft. While out on bond, Feuston failed to appear for his pretrial conference, and he was later arrested in Delaware County on an unrelated charge. After he was incarcerated in Delaware County, no further action was taken in the Jay County case until Feuston, acting pro se, filed a " Motion Requesting Final Disposition of Charges/Detainers." Appellant's App. at 20. Thereafter, Feuston was appointed counsel, who filed a motion for discharge pursuant to Indiana Criminal Rule 4(C). The trial court denied the motion and certified its order for interlocutory appeal. We accepted jurisdiction, and oral argument was held on June 27, 2011, in Indianapolis. Concluding that Feuston caused the delay in the Jay County case by absconding and failing to appear at his pretrial conference, we affirm.

Facts and Procedural History

On March 3, 2009, Feuston was charged in Jay County with class D felony theft. He was arrested the following day. On March 6, 2009, Feuston posted bond and the initial hearing was held. A pretrial conference was scheduled for May 5, 2009, but Feuston failed to appear, and a warrant was issued for his arrest.

The next entry on the chronological case summary (" CCS" ) is dated August 17, 2010. On that date, Feuston filed a pro se " Motion Requesting Final Disposition of Charges/Detainers." Id. In his motion, Feuston alleged that he had been arrested in Delaware County on August 15, 2009, for class C felony burglary, and that the warrant from Jay County " was read to the Defendant upon his arrival at the Delaware County Jail, which resulted in the hold from Jay County." Id. He argued that more than a year had passed since his arrest in Jay County and that he was therefore entitled to discharge pursuant to Indiana Criminal Rule 4(C), which requires the State to try defendants within a year, subject to certain possible extensions.

The trial court held a hearing on Feuston's motion on August 18, 2010. The CCS entry for that date states that the court " is now aware of the Defendant's location." Id. at 2. Counsel was appointed for Feuston, and a jury trial was set for October 21, 2010.

On September 1, 2010, defense counsel entered an appearance, and on October 7, 2010, defense counsel filed a motion for discharge, which also argued that Feuston was entitled to discharge pursuant to Criminal Rule 4(C). Attached to the motion were copies of what purported to be

Page 547

fax correspondence between the Delaware and Jay County Jails, which read:

8/16/09 WARRANT # IS 38D01-0903-FD-031 1

230-726-8188

8/18/2009 JAIL COMMANDER OF JAY COUNTY TX'D AND SAID THEY WILL BE HERE TO PICK UP 8/19/2009 IN THE MORNING ... 377

Id. at 45-46. Also attached to the motion were Feuston's Delaware County Jail records, which show that he was booked on August 16, 2009, and was checked out to attend court in Jay County on August 19, 2009; August 17, 2010; and September 28, 2010. However, there is no CCS entry in the Jay County case on or around August 19, 2009. The CCS indicates that the bench warrant was " returned Served by the Sheriff of Jay County on 8-17-2010." Id. at 2. The return filed by the sheriff states that the warrant was served on August 17, 2010, and the document's file-stamp shows that it was filed on August 18, 2010. Id. at 25.

The trial court held a hearing on the motion for discharge on October 12, 2010. At the hearing, Feuston argued that the attachments to his motion showed that Jay County authorities were aware that he was incarcerated in Delaware County:

[A]s we can see from the other attachments to the Motion that was made which are clearly from the Delaware County Jail, the records show that they did have the warrant. That they even had communication with the Jay County Jail. If somewhere between when the warrant was read to Mr. Feuston there at the Delaware County Jail and it was returned to Jay County, if there was some sort of lapse in time because of some one [sic] else's mistake, that should not be attributed to the Defendant.... It even shows that the Jail Commander of Jay County indicated that they would be picking Mr. Feuston up at some point.

Tr. at 9.

The trial court denied the motion on October 13, 2010. The trial court noted that Feuston had not explained where he was between the date of his pretrial conference (May 5, 2009) and his arrest in Delaware County (August 16, 2009) and concluded that Feuston was responsible for all the delay from May 5, 2009 to August 17, 2010, when he filed his motion. The trial court certified its order for interlocutory appeal, and we accepted jurisdiction.

Discussion and Decision

Feuston argues that the trial court erred by denying his motion for discharge pursuant to Criminal Rule 4(C), which 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.... Any defendant so held shall, on motion, be discharged.

Criminal Rule 4 implements the defendant's constitutional right to a speedy trial. State v. Jackson, 857 N.E.2d 378, 380 (Ind.Ct.App.2006). Under this rule, the State

Page 548

has an affirmative duty to bring the defendant to trial within one year of being charged or arrested, subject to the listed exceptions. Cook v. State, 810 N.E.2d 1064, 1065 (Ind.2004). The defendant has no obligation to remind the 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. State v. Smith, 495 N.E.2d 539, 541 (Ind.Ct.App.1986). When a defendant makes a motion for discharge pursuant to Criminal Rule 4, the burden is on the defendant to show that he has not been timely brought to trial and that the defendant is not responsible for the delay. Martin v. State, 419 N.E.2d 256, 259 (Ind.Ct.App.1981).

In Upshaw v. State, a panel of this Court noted:

There appears to be a disagreement about the proper standard of review to apply to appeals pursuant to Criminal Rule 4. Compare Mork v. State, 912 N.E.2d 408, 410 (Ind.Ct.App.2009) (applying a de novo standard of review) and Bartley v. State, 800 N.E.2d 193, 195 (Ind.Ct.App.2003) (same) with Bowman v. State, 884 N.E.2d 917, 919 (Ind.Ct.App.2008) (applying an abuse of discretion standard), trans. denied, and Paul v. State, 799 N.E.2d 1194, 1197 (Ind.Ct.App.2003) (applying a clearly erroneous standard).

934 N.E.2d 178, 181-82 (Ind.Ct.App.2010), trans. denied. Upshaw did not resolve this disagreement because the panel concluded that it would affirm regardless of which of these standards applied. We believe that the discrepancies have arisen because sometimes the trial court must resolve disputed facts, but on other occasions simply applies the law to undisputed facts. Compare Leek v. State, 878 N.E.2d 276, 277 (Ind.Ct.App.2007) (noting that whether delays in scheduling a trial have occurred and whether they are chargeable to the defendant are factual determinations for the trial court), with Pelley v. State, 901 N.E.2d 494, 498 (Ind.2009) (where the sole issue was whether Ind. Criminal Rule 4(C) excludes time spent on State's interlocutory appeal of an order, review was de novo). We conclude that factual findings made by the trial court are entitled to deference, but legal conclusions are to be reviewed de novo.

Feuston was released on bond in Jay County and then was arrested in Delaware County. We faced a similar factual scenario in Rust v. State, 792 N.E.2d 616 (Ind.Ct.App.2003).2 Rust was arrested and charged in Hancock County in February 2001. After bonding out, Rust was arrested and charged in Marion County in March 2001. He bonded out again and appeared at his initial hearing in Marion County, but then failed to appear for subsequent hearings in both counties, and each county issued a warrant for his arrest. In October 2001, Rust surrendered in Hancock County and filed a " Notice of Surrender" in Marion County while he was being held at the Hancock County Jail. Id. at 617. Rust pled guilty to the Hancock County charges and was sentenced in August 2002. After he served that sentence, he was brought to Marion County.

In October 2002, Rust moved to dismiss the Marion County charges pursuant to Criminal Rule 4(C). The trial court denied the motion, and Rust appealed. Rust conceded that the clock was tolled from the time that he failed to appear at his hearings until he surrendered himself. The parties disputed whether the filing of

Page 549

Rust's Notice of Surrender restarted the clock. We concluded that " once the trial court and the State were notified via the Notice of Surrender where Rust was incarcerated, the State was obligated to proceed with the case in a timely manner," and the State " could not simply wait until the Hancock County sentence was satisfied before moving forward with the Marion County charges." Id. at 620. Therefore, we reversed the denial of his motion for discharge. Id.

We again faced a similar scenario in Werner v. State, 818 N.E.2d 26 (Ind.Ct.App.2005), trans. denied. Werner was arrested in Randolph County and was charged in September 2000....

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16 practice notes
  • 959 N.E.2d 879 (Ind.App. 2011), 49A05-1102-CR-77, McCloud v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 2011
    ...time period. However, the purpose of Criminal Rule 4(C) is to create early trials and not to discharge defendants. Feuston v. State, 953 N.E.2d 545, 551 (Ind.Ct.App.2011). The rule places an affirmative duty on the State to bring a defendant to trial within one year of being charged or arre......
  • 967 N.E.2d 540 (Ind.App. 2012), 84A01-1108-CR-356, Otte v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • May 17, 2012
    ...we review the trial court's legal conclusions de novo but exercise deference with respect to its factual findings. See Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011) (resolving differing standards of review in Criminal Rule 4 cases). 2. Analysis There is no dispute that Otte was ch......
  • 995 N.E.2d 19 (Ind.App. 2013), 87A01-1209-CR-431, Marchand v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 2013
    ...to show that he has not been timely brought to trial and that the defendant is not responsible for the delay." Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011). Marchand has failed in that burden by failing to provide cogent argument to show that he is not responsible for the de......
  • 999 N.E.2d 1054 (Ind.App. 2013), 53A05-1208-CR-423, Wood v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 31, 2013
    ...court must sometimes resolve disputed facts, but on other occasions it simply applies the law to undisputed facts. Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011). Factual findings made by the trial court are entitled to deference, but legal conclusions are reviewed de novo. Id. Cri......
  • Request a trial to view additional results
16 cases
  • 959 N.E.2d 879 (Ind.App. 2011), 49A05-1102-CR-77, McCloud v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 2011
    ...time period. However, the purpose of Criminal Rule 4(C) is to create early trials and not to discharge defendants. Feuston v. State, 953 N.E.2d 545, 551 (Ind.Ct.App.2011). The rule places an affirmative duty on the State to bring a defendant to trial within one year of being charged or arre......
  • 967 N.E.2d 540 (Ind.App. 2012), 84A01-1108-CR-356, Otte v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • May 17, 2012
    ...we review the trial court's legal conclusions de novo but exercise deference with respect to its factual findings. See Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011) (resolving differing standards of review in Criminal Rule 4 cases). 2. Analysis There is no dispute that Otte was ch......
  • 995 N.E.2d 19 (Ind.App. 2013), 87A01-1209-CR-431, Marchand v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 2013
    ...to show that he has not been timely brought to trial and that the defendant is not responsible for the delay." Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011). Marchand has failed in that burden by failing to provide cogent argument to show that he is not responsible for the de......
  • 999 N.E.2d 1054 (Ind.App. 2013), 53A05-1208-CR-423, Wood v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 31, 2013
    ...court must sometimes resolve disputed facts, but on other occasions it simply applies the law to undisputed facts. Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011). Factual findings made by the trial court are entitled to deference, but legal conclusions are reviewed de novo. Id. Cri......
  • Request a trial to view additional results

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