959 N.E.2d 879 (Ind.App. 2011), 49A05-1102-CR-77, McCloud v. State

Docket Nº49A05-1102-CR-77.
Citation959 N.E.2d 879
Opinion JudgeKIRSCH, Judge.
Party NameLance McCLOUD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyRuth Johnson, Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelBAKER, J., and BROWN, J., concur.
Case DateDecember 20, 2011
CourtCourt of Appeals of Indiana

Page 879

959 N.E.2d 879 (Ind.App. 2011)

Lance McCLOUD, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 49A05-1102-CR-77.

Court of Appeals of Indiana.

December 20, 2011

Page 880

[Copyrighted Material Omitted]

Page 881

Ruth Johnson, Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.

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

OPINION

KIRSCH, Judge.

In this interlocutory appeal, Lance McCloud appeals the trial court's denial of his motion to dismiss the charges pending against him because he was not brought to trial within one year of the date he was charged with the offenses. McCloud raises two issues that we consolidate and restate as: whether the trial court erred in denying his motion to dismiss because his right to a speedy trial, provided by Rule 4(C) of the Indiana Rules of Criminal Procedure and the federal and state constitutions, was violated.

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 15, 2009, law enforcement arrested McCloud, and the next day, October 16, the State charged McCloud with four misdemeanor offenses. At an October 19 pretrial conference, McCloud requested an early trial pursuant to Indiana Criminal Rule 4, and the matter was scheduled for a court trial on November 30, 2009. On October 20, 2009, McCloud posted bond and was released. The parties appeared for trial on November 30, 2009, but the State moved for a continuance, which the trial court granted over McCloud's objection. The trial court set a new trial date of February 9, 2010. McCloud failed to appear for trial on February 9, 2010, and an arrest warrant was issued.

On March 26, 2010, the surety agent on McCloud's October 2009 bond filed a " Petition to Release Surety," which stated that McCloud was " currently incarcerated in the Federal Transfer Center in Oklahoma City, Oklahoma" and requested the trial court to release liability on the bond. Appellant's App. at 29-33. Attached to the petition was a document that indicated McCloud was a federal inmate, was located in Oklahoma City FTC, and had an expected release date of October 8, 2010.1 Appellant's App. at 32.

Approximately seven months later, on October 13, 2010, the trial court held a warrant surrender hearing, where McCloud appeared with counsel. At the hearing, McCloud explained that he was on probation for a federal handgun offense when he was arrested on the current Indiana charges in October 2009. Consequently, he was in violation of his federal probation. In December 2009, he appeared at a federal probation violation hearing and admitted the probation violation. McCloud served his federal sentence with the Federal Bureau of Prisons (" BOP" ) in Illinois, until being released in August 2010, when he was sent to the Volunteers of America in Indianapolis (" VOA" ) to complete the last two months of his federal sentence in the VOA's work-release program. While at the VOA, he

Page 882

violated the terms of that placement, and he was taken into federal custody. In late September or early October, McCloud was released from federal custody and transferred to state custody at the Marion County Jail. 2

At the October 13, 2010 warrant surrender hearing, McCloud's counsel argued that, although McCloud had been in federal custody for approximately ten months, the State was required to bring him to trial on or before Friday, October 15, 2010 in order to comply with the Criminal Rule 4(C) one-year deadline. McCloud specifically objected to any trial date beyond October 16, 2010, one year after he was originally charged. The trial court set the matter for a pretrial hearing on November 23, 2010.

At the November 23 hearing, the parties debated the issue of whether those months that McCloud was in federal prison should be included in the Criminal Rule 4(C) one-year calculation. The State argued that those months should not count against the State and that the time of McCloud's incarceration should extend the date by which it must bring McCloud to trial. The trial court agreed and set the matter for bench trial on January 7, 2011. Prior to the start of trial on January 7, 2011, McCloud filed a written motion to dismiss and a supporting memorandum of law. At the conclusion of the hearing on McCloud's motion, the trial court orally denied it. McCloud sought and received permission to file this interlocutory appeal.

DISCUSSION AND DECISION

McCloud argues that the trial court erred by denying his motion to dismiss the charges pending against him because the State should have brought him to trial on or before October 16, 2010, one year after he was originally charged. Initially, we note that McCloud was incarcerated in federal prison in another state for approximately ten months of that one-year period. Indiana has denominated two methods of securing the presence of defendants who are in custody of foreign jurisdictions, and, because McCloud was imprisoned out of state, we find that a brief discussion of them is warranted.

The Interstate Agreement on Detainers Act (" IAD" ) is codified in Indiana at Indiana Code section 35-33-10-4, and the writ of habeas corpus ad prosequendum is codified at Indiana Code section 35-33-10-5. See Sweeney v. State, 704 N.E.2d 86, 94-95 (Ind.1998), cert. denied, 527 U.S. 1035, 119 S.Ct. 2393, 144 L.Ed.2d 793 (1999). " While the statutes are separate and distinct, they have similar purposes in that both set forth procedural safeguards for securing the presence of a prisoner in Indiana who is located in a foreign jurisdiction." Id.

Indiana is one of forty-eight states who, along with the District of Columbia and the Federal Government, is a party to the IAD. Conn v. State, 831 N.E.2d 828, 830-31 (Ind.Ct.App.2005) (citing Alabama v. Bozeman, 533 U.S. 146, 148, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001)), trans. denied. The IAD is an interstate compact and its purpose is to encourage the expeditious and orderly disposition of outstanding charges against

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persons incarcerated in other jurisdictions. Sweeney, 704 N.E.2d at 96. The IAD process begins when the state bringing the charges against a defendant, who is in custody in another IAD jurisdiction, files a detainer. 3 State v. Robinson, 863 N.E.2d 894, 896 (Ind.Ct.App.2007), trans. denied (2007). After a detainer is filed, the inmate/defendant may file a request for final disposition, which triggers the requirement under the IAD that he be brought to trial within 180 days. Id.; see also Conn, 831 N.E.2d at 830-31. There is no mandate obligating the State to file a detainer. Fisher v. State, 933 N.E.2d 526, 529 (Ind.Ct.App.2010). Absent the filing of a detainer under the IAD, the IAD is not applicable. Sweeney, 704 N.E.2d at 98. Because the State did not file a detainer in this case, we find the IAD does not apply to McCloud's case.

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6 practice notes
  • 992 N.E.2d 881 (Ind.App. 2013), 49A04-1210-CR-534, Spalding v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • August 9, 2013
    ...exclusive control of the State of Indiana, and Criminal Rule 4(C) was still inapplicable.6 Spalding urges us to follow McCloud v. State, 959 N.E.2d 879, 884 (Ind.Ct.App.2011), trans. denied, which applied Criminal Rule 4(C) to a defendant who, after being arrested in Indiana, was incarcerat......
  • 989 N.E.2d 384 (Ind.App. 2013), 26A04-1210-CR-498, Hollingsworth v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • June 4, 2013
    ...2012 as a result of his motion to suppress. Accordingly, the delay was caused more by Hollingsworth than the State. See McCloud v. State, 959 N.E.2d 879, 887 (Ind.Ct.App.2011), trans. C. Hollingsworth's Assertion of his Right to a Speedy Trial Hollingsworth did not assert his right to a spe......
  • Afanador v. State, 041316 INCA, 53A01-1509-CR-1326
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 2016
    ...a defendant may seek and be granted a discharge if he or she is not tried within the dictates of the rule. See McCloud v. State, 959 N.E.2d 879, 884 (Ind.Ct.App. 2011), trans. [7] Our supreme court recently observed there has been "some confusion about what the standard of review shoul......
  • 54 N.E.3d 451 (Ind.App. 2016), 53A01-1509-CR-1326, Afanador v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 2016
    ...defendant may seek and be granted a discharge if he or she is not tried within the dictates of the rule. See McCloud v. State, 959 N.E.2d 879, 884 (Ind.Ct.App. 2011), trans. [¶7] Our supreme court recently observed there has been " some confusion about what the......
  • Request a trial to view additional results
6 cases
  • 989 N.E.2d 384 (Ind.App. 2013), 26A04-1210-CR-498, Hollingsworth v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • June 4, 2013
    ...2012 as a result of his motion to suppress. Accordingly, the delay was caused more by Hollingsworth than the State. See McCloud v. State, 959 N.E.2d 879, 887 (Ind.Ct.App.2011), trans. denied. C. Hollingsworth's Assertion of his Right to a Speedy Trial Hollingsworth did not assert his right ......
  • 992 N.E.2d 881 (Ind.App. 2013), 49A04-1210-CR-534, Spalding v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • August 9, 2013
    ...exclusive control of the State of Indiana, and Criminal Rule 4(C) was still inapplicable.6 Spalding urges us to follow McCloud v. State, 959 N.E.2d 879, 884 (Ind.Ct.App.2011), trans. denied, which applied Criminal Rule 4(C) to a defendant who, after being arrested in Indiana, was incarcerat......
  • Afanador v. State, 041316 INCA, 53A01-1509-CR-1326
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 2016
    ...a defendant may seek and be granted a discharge if he or she is not tried within the dictates of the rule. See McCloud v. State, 959 N.E.2d 879, 884 (Ind.Ct.App. 2011), trans. denied. [7] Our supreme court recently observed there has been "some confusion about what the standard of revi......
  • 54 N.E.3d 451 (Ind.App. 2016), 53A01-1509-CR-1326, Afanador v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 2016
    ...defendant may seek and be granted a discharge if he or she is not tried within the dictates of the rule. See McCloud v. State, 959 N.E.2d 879, 884 (Ind.Ct.App. 2011), trans. denied. [¶7] Our supreme court recently observed there has been " some confusion about ......
  • Request a trial to view additional results

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