ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEVE CARTER THOMAS M. THOMPSON
Attorney General of Indiana Smith & Thompson
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
vs. ) No. 21A01-0101-CR-00003
BILLIE J. ERLEWEIN, )
APPEAL FROM THE FAYETTE SUPERIOR COURT
The Honorable Daniel L. Pflum, Judge
Cause No. 21D01-9810-CM-660
September 26, 2001
OPINION - FOR PUBLICATION
The State appeals the trial court's order barring retrial of Billie J. Erlewein
for battery, a Class A misdemeanor. We reverse.
The State raises the following restated issue for our review: whether principles of
double jeopardy or Rule 4(C) of the Indiana Rules of Criminal Procedure preclude
the State from retrying Erlewein for battery, a Class A misdemeanor.
Facts and Procedural History
The facts reveal that on October 22, 1998, the State charged Erlewein with
battery, a Class A misdemeanor. On December 2, 1998, Erlewein appeared before
Judge Frank W. Messer Jr., and entered a plea of not guilty.
That same day, Judge Messer set January 5, 1999, as the initial trial
date. On January 5, 1999, Erlewein appeared and Judge Messer conducted an
indigency hearing. Judge Messer appointed pauper counsel and set a bench trial
for March 22, 1999.
On March 16, 1999, Erlewein moved to continue the bench trial and it
was reset for July 26, 1999. On June 21, 1999, the State
moved to continue the bench trial and it was reset for September 13,
1999. Judge Messer conducted a bench trial on September 13, 1999.
After the State presented its case-in-chief, Erlewein moved for a directed verdict on
the basis of improper venue. Judge Messer took Erleweins motion under advisement,
and the bench trial proceeded. After Erlewein rested, Judge Messer informed the
parties that the matter would be taken under advisement.
On February 29, 2000, the State filed with the trial court a Praecipe
for Withdrawal of Jurisdiction and Transfer to the Supreme Court. On May
30, 2000, the Indiana Supreme Court issued an order appointing Daniel L. Pflum
as Special Judge in the case. On April 23, 2001, Special Judge
Pflum issued an order to the parties providing in pertinent part that:
The Court being duly advised directs the parties to file memorandum [sic] within
30 days on the following issue. Can the current judge review the
record of proceedings to determine if the State proved venue. If not
then the Court would have to declare a mistrial. If a mistrial
is declared would the new trial constitute double jeopardy.
R. 49. On July 25, 2001, Special Judge Pflum sua sponte declared
a mistrial after reviewing the parties' memorandum and the tape of the bench
trial conducted on September 13, 1999. In addition, Special Judge Pflum ordered
the parties to file within thirty days memoranda on whether or not a
new trial would violate double jeopardy.
On July 26, 2000, the State filed a motion with the trial court
requesting that Special Judge Pflum reconsider the decision to declare a mistrial.
On July 27, 2000, Judge Pflum issued the following order that provides in
The Court being duly ordered will not reconsider its [sic] declaring a mistrial
and it will not and cannot judge the credibility of the two witnesses
without seeing the evidence as they testify.
Discussion and Decision
On September 18, 2000, Special Judge Pflum entered an order barring retrial of
Erleweins battery charge on the basis of double jeopardy. This order provides
in pertinent part:
On September 13, 1999, a bench trial was held in this case.
At the close of the States case [Erlewein] moved for a Directed Verdict
on the grounds that the State did not prove venue. The Court
stated that it would hear [Erleweins] evidence and at the conclusion of the
trial listen to the tape and determine if venue was established. If
venue was established the Court would determine guilt or innocence.
The trial judge did not make a ruling. The State on February
29, 2000, without any request on the record to the Court to enter
a ruling, filed a Praecipe for Withdrawal of Jurisdiction pursuant to Rule TR
[sic] 53.1. The case was then assigned to the undersigned special judge.
After consulting with counsel the undersigned listened to less than five minutes and
determined that the State had established venue. Because the case was Battery
with only [Erlewein] and the alleged victim as witnesses the Court determined that
it could not make a finding of guilt beyond a reasonable doubt by
only listening to the tape recording of the hearing; it needed to see
the witnesses testify in person. The Court therefore had no option but
to declare a mistrial.
The question before the Court at this time is Does the granting of
a mistrial constitute double jeopardy? A second trial is barred on double
jeopardy grounds if the prosecutor brought about the mistrial with the intent to
cause termination of the trial.
In the case at hand the State filed its praecipe knowing that it
would obtain a new trier of facts. The record does not show
a reminder to the trial judge that he needed to make a ruling.
If the State had reminded the trial judge and the trial judge
did not enter a ruling then the outcome may be different. Here
the State knowingly and deliberately filed its Praecipe knowing that no trier of
facts in a criminal case could make a finding of guilty beyond a
reasonable doubt without seeing the witnesses so as to judge their credibility especially
when there are only the two opposing witnesses.
The Court therefore has no option but to find that a retrial is
barred by the doctrine of double jeopardy.
R. 58-59. This appeal ensued.
I. Double Jeopardy
The State first contends that double jeopardy does not bar a retrial of
Erlewein for battery, a Class A misdemeanor. We agree.
The Fifth Amendment to the United States Constitution provides that no person
shall "be subject for the same offense to be twice put in jeopardy
of life or limb." The Indiana Constitution, Article 1, § 14
provides: "No person shall be put in jeopardy twice for the same
offense." These constitutional directives against double jeopardy are codified in Indiana
Code section 35-41-4-3, which provides that:
(a) A prosecution is barred if there was a former prosecution of the
defendant based on the same facts and for commission of the same offense
(1) the former prosecution resulted in acquittal or conviction of the defendant (A
conviction of an included offense constitutes an acquittal of the greater offense, even
if the conviction is subsequently set aside.); or
(2) the former prosecution was terminated after the jury was impaneled and sworn
or, in a trial by the court without a jury, after the first
witness was sworn, unless (i) the defendant consented to the termination or
waived, by motion to dismiss or otherwise, his right to object to the
termination, (ii) it was physically impossible to proceed with the trial in conformity
with law, (iii) there was a legal defect in the proceedings that would
make any judgment entered upon a verdict reversible as a matter of law,
(iv) prejudicial conduct, in or outside the courtroom, made it impossible to proceed
with the trial without injustice to either the defendant or the state
(b) If the prosecuting authority brought about any of the circumstances in subdivisions
(a)(2)(i) through (a)(2)(vi) of this section, with the intent to cause termination of
the trial, another prosecution is barred.
The protection against double jeopardy will not prevent a retrial of the offense
if: (1) a defendant waives his right to raise double jeopardy claims;
(2) a defendant consents to the termination of proceedings after jeopardy has
attached; or (3) the termination is required by "manifest necessity." Reid
v. State, 610 N.E.2d 275, 278-79 (Ind. Ct. App. 1993). Moreover, a
defendant waives his right to raise double jeopardy by failing to make a
timely objection to the court's declaration of a mistrial. Jester v. State,
551 N.E.2d 840, 841 (Ind. 1990). Further, if a defendant moves for
or consents to a mistrial, the defendant forfeits the right to raise a
double jeopardy claim in subsequent proceedings unless the motion for mistrial was necessitated
by governmental conduct "intended to goad the defendant into moving for a mistrial."
Willoughby v. State, 660 N.E.2d 570, 576 (Ind. 1996).
In the present case, the State on February 29, 2000, filed with the
trial court, a motion pursuant to Indiana Trial Rule 53 entitled "Praecipe for
Withdrawal of Jurisdiction and Transfer to the Indiana Supreme Court." The State
filed the motion because a total of 169 days had elapsed since Judge
Messer had taken the matter under advisement on September 13, 1999. Neither
the State nor Erlewein filed a "notice of reminder" to the trial court
advising Judge Messer that he needed to rule on the merits of Erlewein's
Indiana Trial Rule 53.2
See footnote provides in pertinent part that:
(A) . . . Whenever a cause (including for this purpose a
petition for post conviction relief) has been tried to the court and taken
under advisement by the judge, and the judge fails to determine any issue
of law or fact within ninety (90) days, the submission of all the
pending issues and the cause may be withdrawn from the trial judge and
transferred to the Supreme Court for the appointment of a special judge.
(B) . . . The time limitation for holding an issue under
advisement established under Section (A) of this rule shall not apply where:
(1) The parties who have appeared or their counsel stipulate or agree on
record that the time limitation for decision set forth in this rule shall
not apply; or
(2) The time limitation for decision has been extended by the Supreme Court
pursuant to Trial Rule 53.1(D).
Trial Rule 53.2 is intended to expedite proceedings by withdrawing cases from trial
judges who have delayed their rulings beyond the specified period of time.
Williams v. State, 716 N.E.2d 897, 900 (Ind. 1999). It was rewritten
in its entirety by our supreme court effective January 1, 1983.
We find no authority for the proposition that a party is required to
file a "notice of reminder" to the trial court to make a ruling
prior to the party filing a motion pursuant to Indiana Trial Rule 53.2
seeking the appointment of a special judge, nor does Erlewein point to any
such authority. Trial Rule 53.2 is applicable to a case which is
tried to the court, and which is taken under advisement by the court
during a period of time that extends for ninety (90) days. Here,
169 days had elapsed since Judge Messer had taken Erlewein's criminal case under
advisement, a time period that exceeded the limitation under Trial Rule 53.
Therefore, the State had the right to seek appointment of a special judge
under our trial rules to expedite the proceeding without first filing a "notice
of reminder" to Judge Messer.
We also disagree with Special Judge Pflum that the State sought appointment of
a special judge in order to force a mistrial. Special Judge Pflum
provided in his order barring the retrial of Erlewein that:
Here the State knowingly and deliberately filed its Praecipe knowing that no trier
of facts of a criminal case could make a finding of guilt beyond
a reasonable doubt without seeing the witnesses so as to judge their credibility
especially when there are only the two opposing witnesses.
R. 58. It appears that Special Judge Pflum viewed the State's Trial
Rule 53 motion as a means to force the trial court into sua
sponte declaring a mistrial. Surely the State contemplated that the appointment of
a special judge might result in the declaration of a mistrial. However,
we find no misconduct attributable to the State for the mistrial of Erlewein's
battery case. Rather, the State was within its right to seek appointment
of a special judge pursuant to Trial Rule 53.2 because Judge Messer failed
to issue a decision within ninety (90) days. Following appointment, Special Judge
Pflum sua sponte declared a mistrial. The mistrial was just a byproduct
of Judge Messer's failure to issue a decision on Erlewein's battery case and
the nature of the evidence in the criminal case.
We do not believe that double jeopardy precludes the State from retrying Erlewein
for battery, a Class A misdemeanor. Following Erlewein's bench trial, a conviction
or acquittal was never obtained. In addition, we have found no misconduct
attributed to the State for the mistrial. Therefore, we hold that double
jeopardy does not bar the retrial of Erlewein for battery, a Class A
II. Rule 4(C)
The State also contends that Criminal Rule 4(C) does not preclude a retrial
of Erlewein for battery, a Class A misdemeanor.
See footnote We agree.
The Sixth Amendment to the Constitution of the United States guarantees to each
accused person "the right to a speedy and public trial." In addition,
Article 1, Section 12, of the Indiana Constitution provides that justice shall
be administered "speedily, and without delay." Although those constitutional provisions guarantee a
speedy trial, they do not guarantee a trial within any specific time.
Raber v. State, 622 N.E.2d 541, 544 (Ind. Ct. App. 1993). Therefore,
Indiana adopted Criminal Rule 4 to establish "a reasonable period in which an
accused must be brought to trial." State v. Moles, 166 Ind. App.
632, 337 N.E.2d 543, 552 (1975), trans. denied. Criminal Rule 4 does
not create the substantive right to a speedy trial, rather the rule "exists
in order to implement the basic right to speedy trial of those accused
of crime and who are therefore in confinement or restrained on recognizance."
Huffman v. State, 502 N.E.2d 906, 907 (Ind. 1987).
Criminal Rule 4(C) provides that:
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; 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. Provided further, that a trial court may
take note of congestion or an emergency without the necessity of a motion,
and upon so finding may order a continuance. Any continuance granted due
to a congested calendar or emergency shall be reduced to an order, which
order shall also set the case for trial within a reasonable time.
Any defendant so held shall, on motion, be discharged.
The State bears the burden of bringing the defendant to trial within one
year. State v. Hurst, 688 N.E.2d 402, 408 (Ind. 1997). Criminal
Rule 4(C) relieves the State from that duty only for a delay caused
by the defendant's own act or a continuance had on the defendant's own
motion. State v. Smith, 495 N.E.2d 539, 541 (Ind. Ct. App. 1986).
The one-year period fixed by the rule is extended only by the
period of delay that is chargeable to the defendant. Frisbie v. State,
687 N.E.2d 1215, 1217 (Ind. Ct. App. 1997), trans. denied. Essentially, under
Criminal Rule 4(C), a defendant must be brought to trial before the expiration
of the last day in the applicable time period, but the defendant's trial
does not have to be completed before the end of the period.
Here, the State on October 22, 1998, filed the information against Erlewein for
battery, a Class A misdemeanor. On March 16, 1999, Erlewein filed a
motion for a continuance with the trial court. In response, the trial
court reset the bench trial for July 26, 1999. Thereafter, the State
filed a continuance and the bench trial was ultimately conducted on September 13,
1999. In non-jury cases, jeopardy attaches when the trial judge begins to
hear the evidence. State v. Proctor, 471 N.E.2d 707, 708 (Ind. Ct.
App. 1984); see also Serfass v. United States, 420 U.S. 377, 388 (1975).
Thus, the requirements of Criminal Rule 4(C) were initially satisfied when Erlewein
was brought before Judge Messer and the judge heard the evidence in the
criminal case on September 13, 1999. Erlewein's first trial, which ended
in a mistrial, was within the one year mandate of Criminal Rule 4(C).
We do not believe that the retrial of Erlewein will violate Criminal Rule
4(C). At the conclusion of the one-day bench trial on September 13,
1999, Judge Messer took the matter under advisement. After 169 days elapsed,
the State sought appointment of a special judge pursuant to Trial Rule 53.
Thus, the unreasonable delay in the resolution of Erlewein's bench trial is
due to Judge Messer's failure to rule, not the State. In fact,
the State, not Erlewein, took action to expedite the proceeding by filing the
Trial Rule 53 motion. If a defendant seeks or acquiesces in a
delay that results in a later trial date, the time limitations set by
Criminal Rule 4 are extended by the length of such delays. Hurst,
688 N.E.2d at 407.
The delay in Erleweins trial is not properly chargeable to either Erlewein or
the State. First, Erlewein did not file a motion for continuance or
cause any delay on the part of Judge Messer. See Crim.R. 4(C)
(providing exceptions to the rule requiring trial within one year when a continuance
was had on [defendants] motion, or the delay was caused by [defendants] act,
or because of congestion of the court calendar). Likewise, the State did
nothing to cause Judge Messer to delay his ruling. Therefore, the delay
should be reckoned an exigent circumstance that tolled the running of the time
period under Criminal Rule 4(C). See Henderson v. State, 647 N.E. 2d
7,13 (Ind. Ct. App. 1995) ([The trial judge]s recusal, six days before trial,
constituted an exigent circumstance and the 139-day delay between the recusal and the
appointment of the special judge tolled the running of Crim.R. 4(C).), trans.denied.
Because Special Judge Pflum was unable to observe the demeanor of the witnesses
who testified at the bench trial, he declared a mistrial. Our supreme
court has held that Criminal Rule 4(C) does not anticipate mistrials. State
ex rel. Brumfield v. Perry Circuit Court, 426 N.E.2d 692, 695 (Ind. 1981).
Because the rule does not specify a time in which a retrial
must be held following a mistrial, the court held that the state is
required to bring the defendant to retrial within a reasonable time. Id.;
State v. Roth, 585 N.E.2d 717, 718 (Ind. Ct. App. 1992), trans.
denied. The trial court possesses the discretion to determine what constitutes a
reasonable time. Brumfield, 426 N.E.2d at 695.
Accordingly, we hold that Criminal Rule 4(C) does not bar the retrial of
Erlewein for battery, a Class A misdemeanor.
Based on the foregoing, we hold that double jeopardy and Criminal Rule 4(C)
do not bar the retrial of Erlewein for battery, a Class A misdemeanor.
BAKER, J., and FRIEDLANDER, J., concur.
The State cited Trial Rule 53.1 as the authority for its motion
seeking appointment of a special judge. The State's motion should have been
based upon Trial Rule 53.2 because Erlewein's bench trial had concluded and Judge
Messer had taken the matter under advisement. However, given the facts and
circumstances of this case, this erroneous citation of authority has no bearing on
the outcome of this appeal. We have merely noted this error for
the sake of clarity.
Footnote: We note that the trial court issued an order barring the
retrial of Erlewein for battery, a Class A misdemeanor, on the basis of
double jeopardy, not Criminal Rule 4(C). The State raised the issue of
double jeopardy on appeal. Erlewein's brief only addressed the issue of whether
Criminal Rule 4(C) barred retrial. In its reply brief, the State requests
this court to apply the "prima facie error" standard because Erlewein failed to
address the issue raised by the State; specifically, whether double jeopardy barred
the retrial of Erlewein. For the sake of clarity, we have addressed
the Criminal Rule 4(C) argument.