Copied below is a Petition to Transfer I filed in the Indiana Supreme Court in 2014. The Court granted the Petition, and after oral argument issued an opinion vacating my client’s conviction.

BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER

The procedural and factual background of this criminal case is set forth in the Appellant’s Brief at pages 1-7 and in the Court of Appeals’ not-for-publication memorandum decision at pages 2-5. The Defendant / Appellant / Petitioner herein, _____ _. _______, was charged with child molestation, a Class C felony, on July 31, 2009, and arrested on this charge on August 7, 2009. He filed in the trial court motions for release from jail on his own recognizance pursuant to Crim. R. 4(A), for discharge pursuant to Crim. R. 4(C), and to dismiss based on violation of his constitutional right to a speedy trial, which the trial court denied, and called “frivolous.” Appellant’s Br. p. 7. On May 24, 2012, in State ex rel. _______ v. Elkhart Superior Court No. 3, 969 N.E.2d 590 (Ind. 2012), this Court determined that _______ had “been ‘detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months, as that period is calculated under Criminal Rule 4(A), and that Criminal Rule 4(A) requires his release from jail.” This Court denied _______’s request for dismissal of the criminal case based on violation of his constitutional right to a speedy trial, but “without prejudice to Relator raising those issues in an appeal if he is convicted after a trial.” Id. at 591. _______ was convicted after a trial that commenced on February 11, 2013, and sentenced to six years.

On appeal, _______ contended that the trial court erred in denying his motion for discharge pursuant to Indiana Rule of Criminal Procedure 4(C), and that he was deprived of his right to a speedy trial under the Indiana and United States Constitutions.

_______’s contention that he was entitled to discharge under Crim. R. 4(C) was based on the fact that the trial court, without giving _______ notice or an opportunity to object, vacated _______’s February 6, 2012 trial date in order to try on that date another defendant, whose case had been filed seven months after _______’s case, because that other defendant had filed a Motion for Early Trial pursuant to Crim. R. 4(B), which _______ argued on appeal was a clearly erroneous basis for the trial court’s finding of court congestion in _______’s case on that date.

_______’s contention that he was deprived of his right to a speedy trial under the Indiana and United States Constitutions was based on the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Specifically, _______ argued that the length of time he spent in jail, and the length of time between his arrest and his trial, were several times greater than, respectively, the six-month and one-year benchmarks set by Crim. R. 4(A) and 4(C); that the reasons for more than a year of the delay were clearly improper; and that _______ diligently asserted his right to a speedy trial throughout the proceedings below. With respect to the factor of “prejudice,” _______ argued that he was not required to show prejudice because the other Barker factors coalesced in his favor; that under Barker prejudice does not only mean impairment of defense but also encompasses, and can be shown from, oppressive pretrial incarceration and undue anxiety, both of which resulted from the delay in _______’s prosecution; and that the lengthy and oppressive pretrial incarceration _______ endured, which extended well beyond the advisory sentence for the crime with which he was charged, served to create extraordinary pressure on _______ to agree with the State to a guilty plea in order to be released from incarceration.

The Court of Appeals, on page 6 of its not-for-publication memorandum decision affirming _______’s conviction, made the following clear error in calculation: “Here, _______ was charged on July 31, 2009. The trial court set the initial trial date for November 8, 2010. This was approximately 615 days after the charging date and clearly beyond the one-year limit provided for under Crim. R. 4(C).” In fact, November 8, 2010 was not “approximately” 615 days but precisely 465 days after July 31, 2009. Furthermore, pursuant to Crim. R. 4, the proper date from which to calculate the Crim. R. 4 deadlines was not the July 31, 2009 charging date but the later date of _______’s arrest, which was August 7, 2009. Therefore, the initial trial date of November 8, 2010 was only 458 days after the August 7, 2009 arrest date. One year after that arrest date was August 7, 2010, and adding the 154 days of delay (from October 22, 2009 to March 25, 2010) that _______ conceded was attributable to him gave a Crim. R. 4(C) deadline of January 8, 2011. Therefore, when _______ “consented” on March 25, 2010 to the November 8, 2010 initial trial date he was not “acquiescing” to a trial date outside the Crim. R. 4(C) deadline.

But it appears that it was precisely the Court of Appeals’ overestimate of the number of days between the charging date and the initial trial date, and its resulting mistaken belief that _______ had acquiesced to a trial date outside the Crim. R. 4(C) deadline, that led it to charge _______ with the 222 days between March 25, 2010 and November 3, 2010 (the trial court vacated the November 8, 2010 due to court congestion on the latter date) for purposes of Crim. R. 4(C): “Thus, he [_______] acquiesced to a belated trial date. See Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999) [the time limitations set by Criminal Rule 4 are extended by the length of delays to which a defendant acquiesces by failing to object timely to the setting of a trial date beyond the one-year limit of the rule]. As such, we agree with the trial court’s finding that the additional 222 days of delay accumulating from March 26, 2010 to November 3, 2010 were chargeable to _______.” Decision of Court of Appeals p. 7.

The Court of Appeals’ opinion goes on to state: “Accordingly, if we were to subtract 154 days and 222 days from the 615 days that elapsed between the charging date and _______’s first trial date, it leaves 239 days chargeable to the State, well within the 365-day speedy trial period guaranteed by Crim. R. 4(C).” Id. This should be corrected to state: If we were to subtract 154 days from the 458 days that elapsed between the arrest date and _______’s first trial date, it leaves 304 days chargeable to the State, still within the one-year speedy trial period guaranteed by Crim. R. 4(C).

But _______ ultimately was not tried until February 11, 2013 (i.e., 1285 days after his arrest, or 1131 days if the 154 days chargeable to _______ are subtracted) because the trial court vacated _______’s first trial date and six subsequent trial dates based on its repeated findings of court congestion. _______’s argument in the Court of Appeals that he was entitled to discharge under Crim. R. 4(C) was based on his argument that the trial court’s finding of congestion whereby _______’s trial date of February 6, 2012 was vacated was clearly erroneous. Specifically, _______ argued that the Motion for an Early Trial filed pursuant to Crim. R. 4(B) by another defendant whose case had been filed seven months after _______’s did not trump _______’s right to be tried within one year pursuant to Crim. R. 4(C) such that the Motion for an Early Trial filed in the other case was a legitimate basis for the finding of court congestion in _______’s case.

The Court of Appeals did not address this argument. The Court of Appeals then rejected _______’s argument that he was deprived of his right to a speedy trial under the Indiana and United States Constitutions for the following five reasons: (1) _______ “fails to pinpoint specific . . . impairment to his defense;” (2) _______ at “a pre-trial conference on July 14, 2011 for purposes of setting up a trial date . . . refused to accept [a December 5, 2011 trial date] . . . and insisted on settling for August 22, 2011 as the trial date;” (3) _______’s February 6, 2012 trial date was properly “trumped” and vacated by a newer criminal case since the defendant in that case had filed a Motion for an Early Trial under Crim. R. 4(B); (4) _______ “did not file his motion to discharge pursuant to Crim. R. 4(C) until February 24, 2011, which was almost two years after he was initially charged;” and (5) “Even after his motion for discharge was denied, _______ never sought to file a Crim. R. 4(B) motion requesting a speedy [i.e., an early] trial.”

In so doing, the Court of Appeals in its opinion affirming _______’s conviction (1) ignored _______’s argument that he didn’t have to show impairment to his defense to show a speedy trial violation; (2) badly mischaracterized the substance of the colloquy between the trial court and _______’s counsel on July 14, 2011, which centered on the trial court’s demand that _______ expressly “agree” to the December 5, 2011 trial date in order to get that trial date, which, had _______ done so, according to the express rationale of the trial court in earlier denying _______’s motion for release from jail on his own recognizance under Crim. R. 4(A) and of the Court of Appeals elsewhere in its opinion (but contrary to the necessary rationale of this Court in its writ of mandamus ordering _______’s release on his own recognizance pursuant to Crim. R. 4(A)), would have meant that the delay “agreed” to by _______ would have been chargeable to him for purposes of Crim. R. 4; (3) ignored _______’s argument that Crim. R. 4(B) does not “trump” Crim. R. 4(C); (4) called the less than nineteen months between the date _______ was charged and the date he filed his first motion for discharge pursuant to Crim. R. 4(C) “almost two years,” while not explaining how _______ was supposed to file his first Crim. R. 4(C) motion any sooner than he did, when he conceded that approximately five of those nineteen months were chargeable to him; and (5) ignored _______’s argument that filing a Crim. R. 4(B) Motion for an Early Trial would have made no sense after the Crim. R. 4(C) one-year deadline had already passed and he had expressly refused to acquiesce to a trial date past that deadline.

ARGUMENT

In the first place, the not-for-publication memorandum decision of the Court of Appeals should be vacated and transfer granted because decisions issued by the Court of Appeals ought not contain obvious calculation errors, as this decision does by incorrectly asserting that _______’s first trial date of November 8, 2010 was 615 days after his charging date of July 31, 2009. Furthermore, it appears that this obvious error, and the Court of Appeals’ resulting mistaken belief that _______ had acquiesced to a trial date beyond the Crim. R. 4(C) one-year deadline, is what led the Court of Appeals to erroneously charge _______ with 222 days of delay which in fact were not chargeable to him.

Secondly, in charging _______ with these 222 days of delay, the Court of Appeals has entered a decision in conflict with this Court’s decision in State ex rel. _______ v. Elkhart Superior Court No. 3, 969 N.E.2d 590 (Ind. 2012), which necessarily must have determined that these 222 days were not chargeable to _______, in holding that _______ had been detained in jail for more than six months as that period is calculated under Crim. R. 4(A). Even though, pursuant to State ex rel. Bramley v. Tipton Circuit Court, 835 N.E.2d 479 (Ind. 2005), acquiescing to a trial date outside the six-month Crim. R. 4(A) deadline does not extend the Crim. R. 4(A) deadline (by which the defendant must be either tried or released from jail on his own recognizance), while acquiescing to a trial date outside the one-year Crim. R. 4(C) deadline does extend the Crim. R. 4(C) deadline to the trial date acquiesced to, this difference does not affect whether a delay is “chargeable” to a defendant. If, as this Court has previously found in State ex rel. _______, the 222 days were not chargeable to _______ for purposes of Crim. R. 4(A), they were not chargeable to him for purposes of Crim. R. 4(C). In holding to the contrary, the Court of Appeals has also entered a decision in conflict with this Court’s decision in Cook v. State, 810 N.E.2d 1064, 1067 (Ind. 2004), which stands, inter alia, for the proposition that a defendant’s mere agreement or acquiescence to delay he did not request is never chargeable to the defendant. Furthermore, the Court of Appeals has entered a decision in conflict not only with this Court, but also with itself, since on page 7 it charges _______ with delay because he “agreed” to the delay, while on page 9 it holds _______ responsible for another delay because he refused to “agree” to a delay.

Suppose that on March 25, 2010 the trial court really had set, and _______ really had failed to object to, an initial trial date 615 days after the charging date, as the Court of Appeals imagined. That would have meant an April 7, 2011 initial trial date, which, unlike the November 8, 2010 initial trial date actually set by the trial court, would indeed have been beyond the one-year limit provided for under Crim. R. 4(C). But that couldn’t have meant, as the Court of Appeals appears to hold, that the delay from March 25, 2010 to April 7, 2011 would then have been “chargeable” to _______. The flaw of this logic is perhaps more clearly seen if we imagine the widely disparate legal effects from it on _______ if, on March 25, 2010, he had failed to object to a trial date only two days after the State’s actual Crim. R. 4(C) deadline of January 8, 2011 versus a trial date only two days before the deadline. All that a defendant’s acquiescence to a trial date outside the one-year deadline does is extend the deadline to the date acquiesced to. Although such acquiescence to a trial date outside the one-year deadline (resulting perhaps only from an inadvertent miscalculation of the one-year deadline) can be said to be “inconsistent” with a defendant’s assertion of his right to be tried within that specific one-year deadline, it is only thus inconsistent to the extent of the length of time between the one-year deadline and the trial date acquiesced to, and does not mean that the defendant has now acquiesced to being tried whenever the State might get around to it and that Crim. R. 4(C) no longer applies in his case. In other words, acquiescing to a trial date outside the one-year deadline is no more inconsistent with Crim. R. 4(C) than requesting a continuance (as _______ did several times at the beginning of this case prior to securing private counsel), which likewise extends the one-year deadline but by no more than the finite delay actually caused by the continuance. But by the Court of Appeals’ logic, if _______ had failed to object to a January 10, 2011 trial date, the State would then have still had an entire year to bring him to trial after that date (minus the brief period from his arrest date on August 7, 2009 to October 22, 2009), since not only the 154 days from October 22, 2009 to March 25, 2010, but also the delay from March 25, 2010 to January 10, 2011, would have been chargeable to him. To the contrary, a defendant’s mere agreement or acquiescence to delay he did not request is never chargeable to the defendant and is not itself “counted” so as to extend the one-year time period of Crim. R. 4(C), even though his agreement or acquiescence to a trial date outside the one-year time period extends the time period allowed the State by Crim. R. 4(C) to the date agreed or acquiesced to by the defendant. Cook v. State, 810 N.E.2d 1064, 1067 (Ind. 2004).                       

Thirdly, by ignoring _______’s argument that Crim. R. 4(B) does not “trump” Crim. R. 4(C), and by faulting _______ for not filing a Crim. R. 4(B) Motion for an Early Trial after the Crim. R. 4(C) one-year deadline had already passed and he had expressly refused to acquiesce to a trial date past that deadline, the Court of Appeals has sanctioned a practice of the trial court that conflicts with the language and sense of Crim. R. 4 and this Court’s decision in Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995) (“Criminal Rule 4(B) requires . . . assign[ing] a meaningful trial date within the time prescribed by the rule, if necessary superseding . . . even criminal cases in which Criminal Rule 4 deadlines are not imminent.”) (emphasis added).

Fourthly, by conflating prejudice with impairment to defense, and ignoring _______’s argument that oppressive pretrial incarceration and undue anxiety also count as prejudice, and that alternatively he didn’t have to show prejudice because the other factors coalesced to demonstrate that his constitutional right to a speedy trial had been violated, the Court of Appeals has entered a decision in conflict with the decision of the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Indeed, the Court of Appeals in its decision cited language from a short opinion of this Court, Gilmore v. State, 655 N.E.2d 1225, 1227-28 (Ind. 1995), which, read narrowly and out of context, would appear to support such a conflation of prejudice with impairment to defense, although Gilmore also reiterated that prejudice is not a necessary condition to the finding of a deprivation of the right of speedy trial. This Court should therefore grant transfer to make clear its precedents’ conformity with Barker, and to affirm as important elements of the Barker “prejudice” factor oppressive pretrial incarceration and undue anxiety. Here, by the time _______ was sentenced to six years by the trial court, he had already served, with good-time credit, almost all of that sentence in jail prior to trial, so that he had less than two months to serve in the Department of Corrections remaining. Obviously, it cannot be said that since _______ was ultimately convicted and sentenced to a longer period than he had spent in pretrial incarceration he suffered no prejudice. As Barker, supra, noted, “Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time.” Id. at 532-33. Moreover, it is difficult not to suspect that the trial court’s imposition of a sentence above the advisory was likely influenced by the time _______ had already spent in jail. If this Court had not ordered _______’s release from jail on his own recognizance, it is very likely he would have served, with good-time credit, well over six years in jail before he was tried and sentenced. In that case would the trial court still have only sentenced him to six years, making _______’s prejudice claim even stronger? It cannot be the case that a claim of prejudice based on oppressive pretrial incarceration and undue anxiety is mooted anytime a defendant is convicted and sentenced to more time than he spent in pretrial incarceration, since then the interests of defendants in preventing oppressive pretrial incarceration and minimizing anxiety and concern would virtually never be vindicated, since defendants who are acquitted after suffering oppressive pretrial incarceration and undue anxiety generally do not appeal. The relevant point in time to consider in weighing whether a defendant has been deprived of his constitutional right to a speedy trial is not after but before trial. Finally, although _______ did not introduce in the trial court actual evidence of plea offers made by the State, on July 14, 2011, in asking the trial court to release _______ on his own recognizance, his counsel argued: “I do think it’s also an important factor that he has been – he’s already been incarcerated for longer than the advisory sentence. So the effect of the situation is to sort of present a kind of pressure to plead when he’s already been in longer than the advisory sentence.” Appellant’s Br. p. 5. Supposing that many defendants in situations like _______’s situation at that time are offered by the State plea agreements to the advisory sentence, it is very easy to suppose that very many of them succumb to this great “pressure” by pleading guilty, whether they’re guilty or not, when by doing so they can secure their immediate release from incarceration, and when by not doing so they keep themselves in jail indefinitely, with no end in sight.

CONCLUSION

For the reasons set forth above, this Court should vacate the not-for-publication memorandum decision of the Court of Appeals and grant transfer.

Respectfully submitted,

____________________________________

John A. Kindley (#23839-71)

123 S. Michigan St., P.O. Box 199

Lakeville, IN 46536

574-968-8602

Attorney for Appellant