Allen v. State, No. 49S05-1601-CR-46, __ N.E.3d __ (Ind., April 28, 2016).

Dickson, J.

The defendant was convicted of four traffic offenses, two related to his driving while intoxicated and two related to his lack of a driver’s license. His trial took place on October 8, 2014, almost three years after his arrest on December 9, 2011. This appeal asserts a single claim: that the trial court erroneously denied his Criminal Rule 4 motion for discharge for delay.

The defendant contends that he is entitled to discharge under Indiana Rule of Criminal which provides that a defendant may not be held to answer a criminal charge for greater than one year “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 . . . .”….

….

On January 23, 2013, the State and defense counsel were present and ready for trial, but the defendant was absent. The State argues that it was failure of the defense to prepare the transport order and the resulting non-appearance by the defendant for trial that caused delay at-tributable to the defendant which should toll the one-year limitation in Rule 4(C). The defendant contends that, because he was incarcerated at the Department of Corrections on January 23, 2013 and was thus unable to appear for trial, any resulting delay should not be attributable to him. We need not resolve this issue because these two alternatives each lead to the same result.

First, if the defendant’s failure to appear is not counted as delay caused by his act, then his trial was not held within the time period prescribed by Rule 4(C), even accepting the State’s claimed attribution of other delays to the defendant. The defendant was arrested December 9, 2011 and brought to trial October 8, 2014–1034 days later. Without attribution to the defendant of any delay associated with his failure to appear for trial on January 23, 2013, the other delays alleged by the State as attributable to the defendant would toll for 258 days the one year period under Rule 4(C), which thus would have required the defendant’s trial to commence by August 23, 2013.4 But the trial did not begin until October 8, 2014, violating Rule 4(C). [Footnote omitted.]

Second, if the defendant’s non-appearance at his January 23, 2013 trial date is deemed to commence a delay attributable to him, the duration of that delay would include a reasonable time for the trial court to take action to reschedule his trial date. The defendant’s failure to appear placed both the trial court, which is responsible for the management of its docket, and the prosecution, which has an interest in avoiding discharge under Criminal Rule 4, on notice that a new trial date was necessary, including the necessity of transporting the defendant from prison for trial. As of the scheduled trial date of January 23, 2013, and assuming the State’s claimed attribution of 258 days in delays to the defendant, there remained ample time—212 days plus the reasonable time attributable to the defendant—within which to bring the defendant to trial. Following the defendant’s non-appearance for trial on January 23, 2013, however, neither the State nor the trial court took any action for 518 days. On June 25, 2014, at a hearing on the defendant’s motion for discharge under Rule 4(C) filed April 23, 2014, the trial court finally took action to schedule a new trial date. Thus, even if the defendant’s non-appearance for trial is deemed to have initiated a delay attributable to him for Rule 4(C) purposes, such delay extended only for a reasonable period of time within which the court could take action to reschedule a new trial date and secure transportation of the incarcerated defendant for trial. The reasonable period certainly did not extend for more than 306 days as would have been required for the defendant’s trial to comply with Rule 4(C). The defendant, then, was not brought to trial within the period required by Rule 4(C).

Therefore, whether declining to attribute delay to the defendant for failing to arrange for his transportation from Department of Correction custody and to appear for his trial scheduled for January 23, 2013, or whether attributing such failures to the defendant under Rule (C) and permitting the trial court and the State a reasonable time thereafter to bring the defendant to trial, the defendant was entitled to discharge pursuant to Indiana Criminal Rule 4(C), and his motion should have been granted.

We reverse the denial of the defendant’s motion for discharge and remand to the trial court to grant the motion pursuant to Criminal Rule 4(C).

Rush, C.J., and Rucker, David, and Massa, JJ., concur.

 

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