Crim v. State
| Decision Date | 09 January 2013 |
| Docket Number | No. 49A02-1204-CR-276,49A02-1204-CR-276 |
| Parties | TROY CRIM, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
BARBARA J. SIMMONS
GREGORY F. ZOELLER
Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda E. Brown, Judge
The Honorable Teresa A. Hall, Commissioner
MEMORANDUM DECISION - NOT FOR PUBLICATIONBROWN, Judge Troy Crim appeals his conviction for operating a vehicle while intoxicated as a class C misdemeanor. Crim raises one issue which we revise and restate as whether the trial court abused its discretion in denying Crim's motion for discharge under Ind. Criminal Rule 4(C). We affirm.
The relevant facts follow. On March 16, 2010, the State charged Crim with operating a vehicle while intoxicated as a class A misdemeanor and public intoxication as a class B misdemeanor. On March 17, 2010, the court held a pretrial conference, and Crim requested a continuance. The court granted Crim's request and scheduled a hearing for April 20, 2010. On April 19, 2010, the court held a pretrial conference, and Crim requested a continuance. The court granted Crim's request and scheduled a pretrial conference for May 24, 2010. On May 24, 2010, the court held a pretrial conference, and scheduled a pretrial conference for July 20, 2010, and a trial for August 9, 2010. On July 20, 2010, the court held a pretrial conference, and Crim filed a request for a continuance. The court granted Crim's request and scheduled a pretrial conference for September 10, 2010. On September 10, 2010, the court granted Crim's request for a continuance and scheduled a pretrial conference for October 26, 2010. On October 26, 2010, the court granted Crim's request for a continuance and scheduled a pretrial conference for December 7, 2010. On December 7, 2010, the court granted Crim's request for a continuance and scheduled a pretrial conference for February 22, 2011. On February 22, 2011, the court granted Crim's request for a continuance and scheduled a hearing for March 18, 2011. On March 18, 2011, the court granted Crim's motion for a continuance and scheduled a pretrial conference for June 28, 2011.
On June 28, 2011, the court held a pretrial conference and scheduled a bench trial for August 15, 2011. On August 1, 2011, Crim filed a motion for a jury trial, and the court granted Crim's motion, vacated the bench trial scheduled for August 15, 2011, and scheduled a pretrial conference for November 29, 2011, and a jury trial for December 12, 2011. On December 12, 2011, the court held a hearing, and the State moved to dismiss the charge of public intoxication as a class B misdemeanor which the court granted. At the beginning of the hearing, the court stated:
You know we may not actually get to do this jury today. First of all, there are - Court 6 is doing two (2); Court 9 is doing one (1), Court 8 is doing one (1) and we are doing one (1) and I don't even know about the first five (5) criminal courts; they could be doing some too. That tells me two (2) things: (a) they are at least three (3) courtrooms on the look [sic] that don't have jury rooms that need court space, that's a lot. . . . I will go ahead and do other things in here until I find out what's going on.
Transcript at 5-6. After discussing certain matters with the attorneys and recessing momentarily, the court stated: Id. at 32. Crim's counsel stated: Id. The court responded by stating:
The objection is noted, and denied. Court congestion does not have anything to do with Criminal Rule 4. It doesn't toll - it tolls the time; it does not go against your time. If the Court doesn't have a place to do anything, the Court can't do anything. So, Court lacking a courtroom due to lack or no room available for jury space resets this matter for jury trial on February 27, 2012 at 8:30 will be our jury trial; our final pretrial will be February 14, 2012 at 8:30 a.m. Mr. Crim I apologize to you, and I apologize to the officers that are here on this case but unfortunately I can only do so much; and there's no place to put a jury. So I can't go forward without a place to put them. So we will continue this.
On February 24, 2012, Crim filed a motion for discharge pursuant to Ind. Criminal Rule 4(C). Crim argued that the trial court "failed to make a record of what courtrooms may or may not have been available and why" on December 12, 2011. Appellant's Appendix at 75. Crim also argued that "the Court failed to make a record of what alternative arrangements could have been made, such as bringing chairs into Court 10 so that a jury [trial] could take place there, or holding the jury in the adjacent hearing room which was available and equipped with court reporting equipment." Id.
On February 27, 2012, the court addressed and denied Crim's motion. That same day, the jury found Crim guilty of the lesser included offense of operating a vehicle while intoxicated as a class C misdemeanor. The court sentenced Crim to sixty days served through Marion County Community Corrections home detention and probation of 180 days.
The sole issue is whether the trial court abused its discretion in denying Crim's motion for discharge under Ind. Criminal Rule 4(C). Crim acknowledges that he had multiple continuances but argues that "those time periods attributable to Mr. Crim notwithstanding, the State failed to bring Mr. Crim to trial within the required time period." Appellant's Brief at 10. Crim argues, without citation to the record, that the trial court's declaration of congestion was clearly erroneous because there was not congestion due to the trial court's calendar and that there was no other case being heard by the trial court. The State argues that Crim extended the time limitation through aseries of motions for continuance and a motion for a jury trial. The State also argues that court congestion forced the trial court to continue Crim's trial.
Ind. Criminal Rule 4(C) 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; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under 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. Any defendant so held shall, on motion, be discharged.
"The rule places an affirmative duty on the State to bring a defendant to trial within one year of being charged or arrested, but allows for extensions of that time for various reasons." Cook v. State, 810 N.E.2d 1064, 1065 (Ind. 2004). The one-year period is extended by any delay due to: (1) a defendant's motion for a continuance; (2) a delay caused by the defendant's act; or (3) congestion of the court calendar. Isaacs v. State, 673 N.E.2d 757, 762 (Ind. 1996). "[W]hen a defendant takes action which delays the proceeding, that time is chargeable to the defendant and extends the one-year time limit, regardless of whether a trial date has been set at the time or not." Cook, 810 N.E.2d at 1066-1067. "The setting of a trial date is not determinative of what delays are chargeable to the defendant, see Cook v. State, 810 N.E.2d 1064, 1066-67 (Ind. 2004), but a pretrial motion's proximity to a set trial date weighs in favor of attributing a delay to a defendant." Curtis v. State, 948 N.E.2d 1143, 1150 (Ind. 2011). The objective of therule is to move cases along and to provide the defendant with a timely trial, not to create a mechanism to avoid trial. Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).
"A defendant extends the one-year period by seeking or acquiescing in delay resulting in a later trial date." Pelley v. State, 901 N.E.2d 494, 498 (Ind. 2009), reh'g denied. "The defendant's failure to object timely will be deemed acquiescence in the setting of that date." Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999), reh'g denied. "Although a defendant is not obliged under this rule to push the matter to trial, a defendant whose trial is set outside the one-year period must object to the setting at the earliest opportunity or the right to discharge under the rule is waived." Brown, 725 N.E.2d at 825. However, "[t]he defendant is not required to take affirmative steps to obtain trial within the period provided by the Rule, and waiver arises only where defendant learns, within the period during which he could properly be brought to trial, that the court proposes trial on an untimely date." State v. Tomes, 466 N.E.2d 66, 70 (Ind. Ct. App. 1984).
When a defendant asks for a continuance, the time between the motion for a continuance and the new trial date is chargeable to the defendant. Vermillion, 719 N.E.2d at 1204. When a motion...
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