Opinion
24A-CR-149
09-03-2024
Christian Myers, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Megan Shipley Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court Trial Court Cause No. 49D28-2302-F5-3272 The Honorable Jane Spencer Craney, Judge, The Honorable James K. Snyder, Magistrate Judge
ATTORNEY FOR APPELLANT Megan Shipley Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Judge
Case Summary
[¶1] In February of 2023, the State charged Christian Myers with several crimes, and, in July of 2023, Myers requested a trial within seventy days pursuant to Indiana Criminal Rule 4(B). A few days before the seventy-day deadline, the State moved for a continuance, citing alleged difficulty in receiving analysis of DNA evidence, to which Myers objected. The trial court granted the State's request for a continuance, and, following a jury trial, Meyers was convicted of several counts and sentenced to an aggregate term of four years of incarceration and 545 days in community corrections. Myers contends that the trial court abused its discretion in granting the State's request for a continuance, an argument the State argues was not properly preserved. Because we agree with the State, we affirm.
Facts and Procedural History
[¶2] On February 3, 2023, the State charged Myers with Level 1 felony attempted murder, two counts of Level 5 felony attempted battery by means of a deadly weapon, two counts of Level 5 felony criminal recklessness, Class A misdemeanor unlawful possession of a firearm by a domestic batterer, Class A misdemeanor battery resulting in bodily injury, Level 5 felony possession of a machine gun, and two counts of Level 6 felony resisting law enforcement. On February 21, 2023, the State added two more counts of Level 1 felony attempted murder.
[¶3] After the trial court granted Myers's motion to sever the charges against him, this case came to involve the three attempted murder charges, one of the criminal recklessness charges, the possession of a machine gun charge, and both charges of resisting law enforcement. On July 26, 2023, Myers filed a request for a speedy trial pursuant to Criminal Rule 4(B), which requires the State to bring an incarcerated person to trial within seventy days upon his motion. On July 27, 2023, the trial court set Myers's jury trial for October 2, 2023, two days before the end of the seventy-day period.
[¶4] On September 28, 2023, the State moved to continue the trial pursuant to Criminal Rule 4(D) due to the unavailability of DNA testing results. The State's motion reported that Myers objected to the continuance. The next day, the trial court granted the State's motion and reset Myers's trial to November 27, 2023. At no time after the October 4, 2023, seventy-day deadline did Myers move for discharge or to dismiss of the charges against him.
[¶5] Myers was tried on November 27 and 28, 2023. The jury found Myers guilty of Level 5 felony criminal recklessness, Level 5 felony possession of a machine gun, and two counts of Level 6 felony resisting law enforcement. On December 19, 2023, the trial court vacated one conviction for resisting law enforcement and sentenced Myers to an aggregate term of four years of incarceration and 545 days in community corrections.
Discussion and Decision
[¶6] The version of Criminal Rule 4(D) in effect at all relevant times provides as follows:
If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.
A trial court's decision to grant a continuance under Criminal Rule 4(D) is reviewed for an abuse of discretion. McGhee v. State, 192 N.E.3d 1009, 1018 (Ind.Ct.App. 2022), trans. denied. An abuse of discretion occurs "only when the decision is clearly against the logic and effect of the facts and circumstances" before the trial court. Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017). Myers contends that the State failed to sufficiently establish that it had made a reasonable effort to obtain the DNA evidence at issue in time for his trial to take place within Criminal Rule 4(B)'s seventy-day limit. We, however, agree with the State that Myers has waived the claim for appellate review.
[¶7] It is true that Myers timely objected to the setting of a trial date outside the seventy-day window, as reflected in the following passage from the State's Criminal Rule 4(D) motion: "Defense by counsel objects to this continuance." Appellant's App. Vol. II p. 146. As the Indiana Supreme Court recently reiterated, however, if this first step does not result in relief, the defendant must proceed to a second step:
Because granting the State's motion for a continuance would result in a trial date set outside the seventyday period, we treat Myers's objection as equivalent to an objection to the setting of the trial date.
The defendant has two steps to meet his burden [to rebut the trial court's justification for setting trial outside the limit]. First, the defendant must object at the "earliest opportunity" when the trial court continues the trial. Smith v. State, 477 N.E.2d 857, 861-62 (Ind. 1985). At this point, the defendant may present evidence to convince the court it must schedule the trial within the seventy-day deadline, thus preventing a speedy-trial violation in the first place. See Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000) (noting defendants must object to a Criminal Rule 4 violation to "facilitate[] compliance by trial courts with the speedy trial requirement"). Second, if the seventy-day deadline passes without a trial, the defendant must move for discharge. [Clark v. State, 659 N.E.2d 548, 552 (Ind. 1995)].Grimes v. State, 235 N.E.3d 1224, 1231 (Ind. 2024) (emphasis added). Here, October 4, 2023, came and went without a trial, and Myers never moved for discharge or dismissal. Because such a motion to discharge is required to preserve a Criminal Rule 4(B) claim for appellate review, Myers has waived his claim for appellate review.
[¶8] As Myers points out, Dilley v. State, 134 N.E.3d 1046 (Ind.Ct.App. 2019), and Otte v. State, 967 N.E.2d 540 (Ind.Ct.App. 2012), trans. denied, stand for the proposition that a defendant need only object to the trial date to preserve a speedy-trial issue for appellate review. The Indiana Supreme Court, however, has not wavered from the requirement that a motion to discharge is also required, reiterating it as recently as June of 2024. See, e.g., Grimes, 235 N.E.3d at 1231, and Brown, 725 N.E.2d at 825.
[¶9] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.