Cook v. State

Attorney for Appellant Attorneys for Appellee

Jeffrey A. Baldwin Steve Carter

Indianapolis, Indiana Attorney General of

Indiana

Justin F. Roebel

Deputy Attorney General of

Indiana

Indianapolis, Indiana

____________________________________________________________________________

__

In the

Indiana Supreme Court

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No. 33S01-0406-CR-288

Steven D. Cook,

Appellant (Defendant below),

v.

State of Indiana,

Appellee (Plaintiff below).

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Interlocutory Appeal from the Henry Circuit Court, No. 33C01-0112-CF-038

The Honorable Mary G. Willis, Judge

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On Petition To Transfer from the Indiana Court of Appeals, No. 33A01-0302-

CR-00075

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June 30, 2004

Sullivan, Justice.

There is conflicting authority as to whether, prior to any trial date

being set, delays caused by a defendant extend the one-year deadline for

bringing a defendant to trial under Indiana Criminal Rule 4(C). We hold

that they do.

Background

On December 11, 2001, Defendant Steven D. Cook was arrested and

charged with Dealing in a Schedule II Controlled Substance, a Class A

felony; Possession of a Schedule II Controlled Substance in an Amount

Greater than Three Grams Within 1,000 Feet of School Property, a Class A

felony; Dealing in a Schedule IV Controlled Substance, a Class C felony;

and Maintaining a Common Nuisance, a Class D felony. An initial hearing

was held on December 19, 2001. When Defendant had not been brought to

trial by December 26, 2002, he moved to dismiss the information, alleging a

violation of Indiana Criminal Rule 4(C), which requires the State to bring

a defendant to trial within one year of the defendant being arrested or the

charges being filed, whichever occurs later.

Relevant to Defendant’s claim are these two facts:

(1) Between February 14, 2002, and June 28, 2002,

Defendant made five motions to continue, and on three occasions

between July 22, 2002, and September 20, 2002, the court

postponed, the proceedings.

(2) No trial date had ever been set as of the time

Defendant made his motion to dismiss on December 26, 2002.

The trial court denied his motion. Defendant filed an interlocutory

appeal with the Court of Appeals, which affirmed the trial court, although

it attributed 105 days of delay to Defendant. Cook v. State, 799 N.E.2d

79, 83 (Ind. Ct. App. 2003). Neither court found the fact that no trial

date had been set to be controlling. However, Judge Sullivan dissented

from the opinion of the Court of Appeals on the ground that a request for a

continuance should be charged against a defendant only if a trial date has

already been set when that request is made. Id. (Sullivan, J.,

dissenting). We now grant transfer and affirm.

Discussion

The issue presented in this case is whether a defendant should be

charged under Indiana Criminal Rule 4(C) with delays that result from

actions of the defendant that occur before a trial

date has been set. The rule states:

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 . . . .

Ind. Crim. Rule 4(C). 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. Ritchison v.

State, 708 N.E.2d 604, 606 (Ind. Ct. App. 1999), trans. denied, 726 N.E.2d

300 (Ind. 1999). For instance, “[i]f a delay is caused by the defendant’s

own motion or action, the one-year time limit is extended accordingly.”

Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind. Ct. App. 1997) (citation

omitted), trans. denied, 698 N.E.2d 1190 (Ind. 1998); see also Andrews v.

State, 441 N.E.2d 194, 199 (Ind. 1982).

There is disagreement as to whether a defendant causes a delay of the

trial date when the defendant’s actions result in a postponement of the

proceedings before a trial date is set. In State ex rel. O’Donnell v. Cass

Superior Court, where the defendant agreed to a continuance sought by the

State, we held that the defendant’s charges should be dismissed because he

was not brought to trial within one year of being charged. 468 N.E.2d 209,

211 (Ind. 1984). In the opinion, we stated, “When a defendant has agreed

to a continuance prior to the setting of any trial date, those days shall

not be attributed to the defendant for the purposes of Ind.R.Cr.P. 4(C).”

Id. Our rationale was apparently that until a trial date has been set, a

defendant does not know whether the motion will delay the trial date. “A

defendant in that situation can only assume that when a trial date is

finally set it will conform to the limitations of the rule.” Id. Justice

DeBruler dissented, arguing, “When a party delays a task which must be

completed before a trial can take place, that party can and often does

delay the setting of the case for trial, and through that, the trial

itself. That is the effect of a continuance of the cause by agreement of

the parties.” Id.

Subsequent cases purport to follow the O’Donnell majority. These

decisions have held that any delay, regardless of who requested it, cannot

be charged to the defendant unless a trial date had already been set.

State v. Hurst, 688 N.E.2d 402, 406-08 (Ind. 1997); Carr v. State, 790

N.E.2d 599, 602-06 (Ind. Ct. App. 2003); Nance v. State, 630 N.E.2d 218,

220-21 (Ind. Ct. App. 1994); Harrington v. State, 588 N.E.2d 509, 511 (Ind.

Ct. App. 1992); Miller v. State, 570 N.E.2d 943, 945 (Ind. Ct. App. 1991);

see also Solomon v. State, 588 N.E.2d 1271, 1272 (Ind. Ct. App. 1992)

(holding that the delay between the time the court granted the parties’

joint motion to continue the trial date and the time the court reset the

trial date was not chargeable to defendant and treating it as an agreed-to

continuance under O’Donnell).

Some cases have disagreed with or questioned this view. Judge

Hoffman, concurring in result in Miller, noted that “[n]either Criminal

Rule 4(C) nor Criminal Rule 4(F), allowing extension of the Rule 4 time

periods, distinguishes between continuances requested or agreed to by the

defendant before or after a trial date has been set.” 570 N.E.2d at 946.

He also stated that “the language in O’Donnell . . . . should be viewed as

inadvertent or aberrational.” Id. at 947. In Frisbie, the Court of

Appeals rejected the defendant’s argument that delays made by him could not

be charged to him before the trial date had been set and stated that “[a]

careful review of the language of [O’Donnell and Morrison v. State, 555

N.E.2d 458, 461 (Ind. 1990)] discloses that neither supports a conclusion

that the defendant may request continuances without accountability.” 687

N.E.2d at 1217.[1]

We agree with the line of cases that hold when 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. The cases since O’Donnell have

taken one sentence in the opinion and have stretched it to such a degree

that it removes the accountability of defendants. We believe that

O’Donnell, properly read, refers only to continuances that a defendant

agrees to and not continuances that the defendant requests. Miller was one

of the first cases[2] to hold that continuances that a defendant requests

are not chargeable to a defendant unless a trial date has been set. 570

N.E.2d at 945 (“For Criminal Rule 4(C) purposes, a defendant is not charged

with a continuance for which he moves or to which he agrees before a trial

date is set.”). And the overwhelming majority of cases following that

statement of the law have focused on facts other than the request having

been made before a trial date was set. See Harrington, 588 N.E.2d at 511

(holding that the delay could not be attributed to defendant even though he

made the motion to continue because the reason for the motion was a

conflict of the prosecutor’s and stating as an additional reason the fact

that the trial date had not been set when the motion to continue was made);

Nance, 630 N.E.2d at 220 (relying incorrectly on Solomon in stating that

continuances a defendant requests before a trial date is set are not

attributable to defendant); Hurst, 688 N.E.2d at 407-08 (holding defendant

was not chargeable with a 363-day delay between the time he made a motion

to dismiss and the time the court ruled on it, and stating that the

defendant “had a reasonable expectation that the motion would be ruled on

in due course and that, if it came to trial, he would be tried within the

correct time limit”). Only one case, Carr, rested its holding solely on

the fact that defendant’s continuances were requested before a trial date

had been set. 790 N.E.2d at 602-06.

The rule itself makes no distinction regarding when the trial date is

set. It provides that the time a trial date is postponed is not charged to

the State “where a continuance was had on [defendant’s] motion, or the

delay was caused by [defendant’s] act.” Crim. R. 4(C). And any action

that postpones the proceeding of the case will likely cause a delay in the

trial date. As Justice DeBruler stated in dissent in O’Donnell, “When a

party delays a task which must be completed before a trial can take place,

that party can and often does delay the setting of the case for trial, and

through that, the trial itself.” 468 N.E.2d at 211.

We therefore hold that delays caused by action taken by the defendant

are chargeable to the defendant regardless of whether a trial date has been

set. To the extent inconsistent with this holding, Hurst, 688 N.E.2d 402;

and Morrison, 555 N.E.2d 458, are overruled; and Carr, 790 N.E.2d 599;

Nance, 630 N.E.2d 218; Solomon, 588 N.E.2d 1271; Harrington, 588 N.E.2d

509; and Miller, 570 N.E.2d 943, are disapproved.[3]

Defendant made five motions to continue,[4] all of which are

attributable to Defendant. Two of those continuances were because defense

counsel had a scheduling conflict and defense counsel was out of the

country. These are chargeable to the defendant, because the action of a

defendant’s counsel is considered the action of the defendant. See

Andrews, 441 N.E.2d at 199; Epps v. State, 244 Ind. 515, 523-24, 192 N.E.2d

459, 463-64 (1963). The five motions brought by Defendant caused a total

of 103 days delay, and so the one-year limit is extended by this number of

days. Accordingly, Defendant’s trial date must have been set for no later

than March 22, 2003. The trial date was set for March 3, 2003, which was

well within the time limit. Defendant’s right under Criminal Rule 4(C) to

be brought to trial within one year of being charged was not violated.

Conclusion

We grant transfer and affirm the trial court.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

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[1] In Morrison, 555 N.E.2d at 461, the defendant argued that he

should not be charged with the delay caused by the granting of his filed

motion to continue the omnibus date before the trial date had been set.

Our Court said that his position was correct under O’Donnell but because he

had conceded that he should be charged with this delay earlier in the

proceedings, this delay was properly attributable to him. Id. Because it

seems to affirm O’Donnell on principle on the one hand but nevertheless

charges the delay to the defendant on the other, the ultimate meaning of

Morrison is ambiguous on this point.

[2] The first case to hold this was Everroad v. State, 570 N.E.2d 38,

43-44 (Ind. Ct. App. 1991) (finding a delay caused by defendants’ motion to

continue, which was made “prior to the setting of a trial date, [was] not

chargeable to the [defendants]”), reversed on other grounds, 590 N.E.2d 567

(Ind. 1992). Miller was the second case.

[3] As discussed in the text, we believe that O’Donnell stands only

for the proposition that a defendant’s agreement to a continuance sought by

the State is not chargeable to the defendant and does not extend the time

period of Crim. R. 4(C). That holding is not affected by this opinion.

[4] Defendant made motions to continue the pre-trial conference date

on five occasions: a Feb. 15, 2002, conference was continued to Apr. 5,

2002; the Apr. 5, 2002, conference was continued to Apr. 18, 2002; the Apr.

18, 2002, conference was continued to May 3, 2002; a June 26, 2002,

conference was continued to July 11, 2002; and the July 11, 2002,

conference was continued to July 22, 2002.