Young v. State, 49S00-8606-CR-610

• Citation: 521 N.E.2d 671
• Case Date: April 12, 1988
• Court: Supreme Court of Indiana

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521 N.E.2d 671 Paul C. YOUNG, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 49S00-8606-CR-610. Supreme Court of Indiana. April 12, 1988.

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Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Paul C. Young was tried before a jury and convicted of one count of burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.), three counts of theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1985 Repl.), and one count of resisting law enforcement, a class A misdemeanor, Ind.Code Sec. 35-44-3-3(a)(3) (Burns 1985 Repl.). The jury also found that Young was an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.). The judge sentenced him to fifty years in prison for the burglary and entered concurrent presumptive sentences on the remaining counts.

On direct appeal, Young raises two issues:

1) Whether the trial court erred in denying Young's motion to dismiss because he was not brought to trial within one year, as required by Criminal Rule 4(C), and

2) Whether the trial court erred in admitting a presentence investigation report containing hearsay.

I. Discharge for Delay of Trial

Young charges that the State failed to bring him to trial within one year of the date charges were filed. He asserts that this delay entitles him to discharge.

At the time of Young's trial, Criminal Rule 4(C), Ind.Rules of Procedure (1985), provided:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in the 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. Any defendant so held shall, on motion, be discharged.

Young alleges that the State initially filed charges under cause number CR84-63A in Criminal Division One of the Marion Superior Court on April 30, 1984. The State dismissed these charges on September 5,

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1984 and refiled identical charges under cause number CR84-197E in Criminal Division Five on September 18, 1984.

The earlier proceedings are not well documented in the record. The record does contain a probable cause affidavit filed under the earlier cause number. A defense motion to dismiss found in the record alleged identical charges were filed in Criminal Division One on April 30, 1984. The defendant asserted these facts when he orally renewed his motion to dismiss at the beginning of trial, and the State did not dispute his statement. On appeal, the State does not deny that identical charges were filed earlier.

Assuming that identical charges were filed on September 18, 1984, the State was required to bring Young to trial within one year of April 30, 1984. When identical charges are refiled, they are regarded as if no dismissal occurred, or as if the subsequent charges were filed on the date of the first charges. State ex rel. Back v. Starke Circuit Court (1979), 271 Ind. 82, 390 N.E.2d 643.

The State is only chargeable with the period when Young was held "to answer a criminal charge." See Bentley v. State (1984), Ind., 462 N.E.2d 58, 60. It is not charged with the period between the dismissal on September 5, 1984 and the refiling of the charges on September 18, 1984. The one year period here is extended by thirteen days. Additionally, Young is chargeable with any delay caused by his actions. Young objected to a July 15 trial before a special judge, and trial was reset for September 26, 1985. Young is therefore charged with seventy-three days of delay.

The State argues that Young should also be charged with a delay of fourteen days because the trial was continued due to the resignation of his court appointed counsel, citing Little v. State (1981), 275 Ind. 78, 415 N.E.2d 44. In that case, court-appointed counsel withdrew in favor of privately retained counsel. Here, counsel for Young resigned his position as public defender, and the trial court removed the cause from the jury trial schedule. A new public defender appeared for Young two weeks later, and the court set a new trial date. Young's action did not cause his attorney's resignation, and he cannot be charged with this delay.

The State would also charge Young with an unspecified period "from the date the State discovered the unavailability of one (1) of its material witnesses [apparently during the...