ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT BENTLEY GRIMM JEFFREY A. MODISETT
Grimm & Grimm Attorney General of Indiana
RANDI E. FROUG
Deputy Attorney General
TAD E. RITCHISON, ) ) Appellant-Defendant, ) ) vs. ) No. 43A04-9808-CR-396 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
2. May 21, 1997 -- The State charged Ritchison with Operating a Vehicle
While Intoxicated, a class A misdemeanor, as well as the D felony
3. May 22, 1997 -- The trial court held an initial hearing advising Ritchison
of his speedy trial right.
4. July 7, 1997 -- Ritchison demanded a jury trial.
5. August 25, 1997 -- A telephonic status hearing was held. Plea negotiations
began around this time.
6. Some time in February -- The State sent a letter to defense counsel asking
the status of the State's pending plea proposal, but received no response.
7. May 13, 1998 -- The State left a message for defense counsel about a trial
setting, but received no response.
8. May 14, 1998 -- The State filed a motion seeking a jury trial setting, but
received no response from defense counsel. A trial date was set for May 21,
1998. Attempts to notify defense counsel of the May 21, 1998 date were
unsuccessful. The secretary at Ritchison's counsel's office stated that defense
counsel was out of the office and that he would be leaving for vacation outside
of Indiana until after May 25, 1998.
9. May 19, 1998 -- The State filed and the trial court granted a motion for continuance of the jury trial due to a congested court calendar. Record at 37. The trial court found that it had previous matters scheduled on May 21, 1998, including: three criminal sentencings, four criminal change of plea hearings, one modification of sentence hearing, two criminal initial hearings, and thirty-
two civil hearings. Record at 47. The jury trial was continued to July 30,
10. May 29, 1998 -- Ritchison filed an objection to the July 30, 1998 trial date
and a Criminal Rule 4(C) motion for discharge. A hearing on the matter was
11. June 11, 1998 -- Ritchison filed a motion asking the court to take judicial
notice of its calendar and official court reporter's log and to make those
documents a part of the record. The State did not respond to, and the trial
court did not rule upon, that particular motion.
12. July 16, 1998 -- The trial court issued an order denying Ritchison's motion
13. July 20, 1998 -- Ritchison filed a petition to certify for interlocutory
appeal the denial of his motion. The trial court granted the petition and we
agreed to address the matter.
Further facts shall be provided as necessary.
The United States Supreme Court declared the Sixth Amendment right to a speedy trial enforceable against the states. Gilmore v. State, 655 N.E.2d 1225, 1227 (Ind. 1995). "Acknowledging Indiana's obligation to provide a speedy trial, we specifically implemented an accused's right to a speedy trial with Indiana Rule of Criminal Procedure 4." Jackson v. State, 663 N.E.2d 766, 767 (Ind. 1996).
Ritchison's argument is three-fold. First, he contends that he had no affirmative duty to ensure that he was brought to trial within one year and that he should not be charged for any delay which he caused or acquiesced to prior to his trial date being set. Second, he claims that the State's motion for continuance did not comply with Criminal Rule 4(C). Third, he argues that the trial court's finding of congestion is clearly erroneous.
distinguishable from Ritchison's case, we are not persuaded that Solomon and Nance
necessarily determine our resolution of this issue.
Unlike the defendants in Solomon and Nance, Ritchison did not simply agree to a continuance before a trial date was set. Ritchison, through his counsel, took affirmative action to stop the running of the speedy trial time period. During an August 25, 1997 pre- trial conference, Ritchison's counsel indicated that the parties were in the process of negotiating a settlement and stated that a trial date would not be necessary. In February of 1998, the State sent a letter to Ritchison's counsel asking the status of the State's pending plea proposal. Ritchison's counsel did not respond. On May 14, 1998, the State filed a motion seeking a jury trial setting, and a trial date was set for May 21, 1998. Under these particular circumstances, Ritchison was properly charged for the delay. See Miller v. State, 650 N.E.2d 326, 329 (Ind. Ct. App. 1995), trans. denied, (noting that delay is not chargeable to defendant, for purposes of speedy trial claim, where defendant has engaged in informal plea negotiations with the State, unless it appears that defendant's acts caused actual delay in scheduling of trial).
Thus, the Criminal Rule 4 timetable was tolled during the negotiations which occurred from approximately August 25, 1997 through February of 1998. As such, that six month time period is attributable to Ritchison, and does not count against the State for purposes of a Criminal Rule 4 motion. Adding six months to the original May 21, 1998 date, we conclude that the Criminal Rule 4 time was extended to November of 1998.
COURT OF APPEALS OF INDIANA
TAD E. RITCHISON )
vs. ) No. 43A04-9808-CR-396
STATE OF INDIANA )
Robb, Judge, dissenting
I respectfully dissent from the majority opinion. The majority bases its decision on
the alleged representation to the trial court by defense counsel that no trial date was
necessary. Without deciding whether this representation was delay attributable to the
defendant, I conclude that there is simply no evidence to support that such a representation
was ever made. In fact, the trial judge admits as much in his findings:
6. On or about July 22, 1997, Kurt Bentley Grimm and Chief-Deputy Prosecuting Attorney, Byron L. Tinkey, held a pretrial conference. Counsel for both parties appeared in chambers following pretrial conference. Defendant's counsel indicated that the parties were in the process of negotiating a settlement and that a trial date would not be necessary.
7. The Court has no written records or recorded proceedings in regard to the pretrial conference in this matter.
45, 49 (Ind. Ct. App. 1995) ("Whether the parties were engaged in plea negotiations is a
question of fact for the trial court which we review only for clear error.").
Nevertheless, given the procedural facts of this case, I feel compelled to state that even if the record contained some evidence of defense counsel's alleged statement, I would still conclude that the six month delay is erroneously attributed to Ritchison. First, there is nothing in the record to show the delay in setting the trial had anything to do with this statement nor is there any evidence that the prosecutor relied on this representation in failing to set a trial date. Additionally, nothing in the nature of plea negotiations prevents or inhibits the State or the trial court from scheduling a trial date. See State v. Smith, 495 N.E.2d 539, 541-42 (Ind. Ct. App. 1986). It is unreasonable for the State to rely on the representation alleged in this case for six months without ever requesting a trial date, particularly when the State had no contact with Ritchison during this entire period. Furthermore, I believe it violates the intent of Criminal Rule 4(C) to attribute such delay to Ritchison. The majority opinion holds that the six month delay runs from the time of defense counsel's alleged statement to the time when the State finally attempted to contact defense counsel regarding the status of plea negotiations. Thus, the longer the State ignored Ritchison's case, the longer it could delay bringing him to trial. The majority opinion essentially holds that the more negligent the State is in bringing Ritchison to trial, the more delay is attributable to Ritchison. Such a result is in contravention of the intent of Criminal Rule 4(C).
Not surprisingly, the State did not make such an argument to the trial court. In its motion for continuance due to a congested court calendar, the State impliedly acknowledged
that the timetable under Criminal Rule 4(C) expired on May 22, 1998. As well, in its order
denying Ritchison's motion for discharge, the trial court impliedly acknowledged the same.See footnote
I conclude that the State's argument regarding the alleged six month delay is an attempt,
offered on appeal for the first time, to provide justification for its inexcusable delay in
bringing Ritchison to trial.
Regardless, there is no evidence of defense counsel's statement in the record, and without such, this court should not consider the State's argument in this regard. Thus, I reach the issue of whether the trial court's order finding that the trial should be continued due to a congested court calendar was proper. Pursuant to Criminal Rule 4(A) and (C), the State may seek a continuance due to a congested court calendar if he or she makes such a motion not later than ten days prior to the date set for trial. Crim. Rule 4(A) and (C). If the motion is filed less than ten days prior to trial, the prosecutor must show that the delay in filing said motion was not the fault of the prosecutor. In this case, the trial was set for May 21, 1998. The State moved for a continuance on May 19, 1998, only two days before the trial date and only five days after the trial date was set. Thus, pursuant to the requirements of Criminal Rule 4(A) and (C), the prosecutor was required to show that the delay in filing the motion was not the fault of the prosecutor. In its motion for a continuance because of a congested court calendar, the State alleged the following attempts to contact defense counsel:
under Criminal Rule 4(C). In fact, the trial date itself was scheduled one day before the
timetable under Criminal Rule 4(C) expired. The State requested a trial date on May 14th,
and on that same day, the trial court scheduled the trial for May 21st. Only five days later
and two days before trial, the State moved for a continuance due to a congested court
calendar. It defies sincerity and veracity to claim that the trial court's calendar was not
congested on the 14th of May but became mysteriously congested only five days later. Based
on this series of events, I come to the inescapable conclusion that the State was forced to
move for a continuance because of its own negligence in waiting until the last minute to
schedule Ritchison's trial. Accordingly, I conclude that the State's motion for a continuance
based on a congested court calendar was in violation of Criminal Rule 4(A) and (C) in that
the motion was made later than ten days prior to trial and the prosecutor failed to show that
the State was not at fault in bringing the motion in a timely manner. See Biggs v. State, 546
N.E.2d 1271, 1276 (Ind. Ct. App. 1989) (holding that the reasonableness of delays due to a
congested court calendar must be judged in the context of the circumstances); see also Baker
v. State, 590 N.E.2d 1126, 1128 (Ind. Ct. App. 1992).
The prosecutor's motion is in technical violation of Criminal Rule 4(A) and (C); moreover, I conclude it is in violation of the spirit of the rule. As the majority opinion notes, the purpose of Criminal Rule 4 is to "ensure early trials, not to permit defendants to escape trials by manipulating the means designed for their protection." Slip op. at 6. Recognizing that it is the State's burden to bring a defendant to trial, I can not identify any act or action by Ritchison which prevented the State from seeking a trial date earlier than May 14th, and
therefore, their failure to do so stems only from their own neglect. I conclude that the
prosecution's failure to file its congested trial calendar motion before ten days prior to trial
is a result of this neglect. If this court would charge delay to a defendant simply because
defense counsel fails to return phone calls, we would effectually be placing an affirmative
obligation on defendants to bring themselves to trial, a violation of the spirit of Criminal
Rule 4. Unlike a continuance or the acceptance of a plea agreement, a refusal to return phone
calls does not hamper the State's ability to either set a trial date within one year or bring a
motion for continuance more than ten days prior to the date of trial.
In conclusion, I believe that the State's motion for continuance due to a congested court calendar was an obvious ruse to avoid the time constraints of Criminal Rule 4(A) and (C). The true purpose of this motion appears to be a last ditch effort to avert the consequences of its obvious neglect in attempting to schedule and conduct a trial only days before the timetable under Criminal 4(C) elapsed. For the foregoing reasons, I would reverse the decision of the trial court. See footnote 8
Converted from WP6.1 by the Access Indiana Information Network