Opinion
24A-CR-1003
12-05-2024
Franklin Lee Boger, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Matthew V. Daley The Nice Law Firm, LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian A.T. McLean 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vigo Superior Court The Honorable Michael J. Lewis, Judge Trial Court Cause No. 84D06-2002-F2-603
ATTORNEY FOR APPELLANT
Matthew V. Daley
The Nice Law Firm, LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Ian A.T. McLean
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] On February 12, 2020, the State charged Franklin Lee Boger with one count of Level 2 felony arson resulting in serious bodily injury, four counts of Level 4 felony arson, one count of Level 6 felony arson, and one count of Level 5 felony insurance fraud. Four years later, Boger has perfected this interlocutory appeal, challenging the trial court's order denying his fifth motion for discharge brought under Criminal Rule 4(C). Although we agree that Criminal Rule 4(C) generally requires more swift action, based on the record before us, we affirm.
Facts and Procedural History
[¶2] The State filed charges against Boger on February 12, 2020. On March 11, 2020, the trial court set Boger's jury trial for August 17, 2020. On August 11, 2020, the State moved to continue the trial date, citing congestion of the court calendar. However, Boger also moved to continue the trial date. The court granted his request, noting his waiver of rights under Criminal Rule 4, and reset the matter for a jury trial on February 8, 2021. On February 2, 2021, the court continued the trial date "pursuant to C.R.4, Administrative Rule 17, Indiana Supreme Court Order November 10, 2020, Case No. 20S-CB-123, and Indiana Supreme Court order dated December 14, 2020, Case No. 20S-CB-123[.]" Appellant's App. Vol. II, p. 46. Boger's new trial date was reset to May 24, 2021.
See In the Matter of Administrative Rule 17 Emergency Relief For Indiana Trial Courts Relating to the 2019 Novel Coronavirus (COVID-19), 155 N.E.3d 1191 (Ind. 2020) (stating trial courts have inherent authority pursuant to Criminal Rule 4 to continue criminal trials upon the finding of an emergency).
[¶3] On March 3, 2021, Boger filed a speedy trial motion, which the court granted, designating the May 24, 2021 trial date as the speedy trial setting. On May 24, 2021, the State requested a continuance of the trial date. Boger objected, but the court granted the continuance and set December 13, 2021 as the new trial date. The trial court also ordered Boger to be released from custody.
[¶4] On December 6, 2021, the State filed a motion for continuance, citing congestion of the court's calendar and noting that the court continued to operate under the COVID-19 protocols. The Vigo County Court plan called for only two jury trials to begin each week for social-distancing requirements.
[¶5] The trial court granted the State's request for a continuance and scheduled a hearing for January 6, 2022. That hearing, though, was reset to February 3, 2022 in anticipation of Boger filing a Criminal Rule 4 motion for discharge. The trial court denied Boger's January 10 motion for discharge, and, over his objection, reset the trial date to August 1, 2022 due to court congestion.
[¶6] On July 25, 2022, the State moved to continue the trial due to congestion of the court's calendar, and the court granted the request. A hearing was set for August 25, 2022. Meanwhile, on August 4, 2022, Boger filed his second motion for discharge, which was denied by the court. Over his objection, Boger's new jury trial date was scheduled for January 30, 2023.
[¶7] On January 24, 2023, the State moved to continue Boger's jury trial, citing congestion of the court's calendar. The court granted the motion and scheduled a hearing for February 9, 2023. On that date, Boger filed his third motion for discharge. The court denied Boger's motion and, over his objection, rescheduled his jury trial for July 24, 2023.
[¶8] On July 18, 2023, the State moved to continue Boger's trial due to congestion of the court's calendar. The court granted the State's motion the next day.
[¶9] Boger filed his fourth motion for discharge on August 10, 2023. The court denied the motion, and, over his objection, rescheduled Boger's jury trial for February 20, 2024.
[¶10] On February 12, 2024, the State moved to continue the jury trial due to congestion of the court's calendar, which the court granted the next day. The court set a March 7, 2024 hearing date. Boger filed his fifth motion for discharge on March 7, 2024. The court denied Boger's motion and rescheduled his jury trial for August 26, 2024.
[¶11] On March 31, 2024, Boger filed a motion to certify the denial of his fifth motion for discharge under Criminal Rule 4(C) for interlocutory appeal, which the court granted. And this Court accepted jurisdiction of his appeal.
Discussion and Decision
A. Preliminary Matter--Waiver
[¶12] As a preliminary matter we acknowledge the State's argument that Boger has waived review of his claims on appeal because he has not provided an adequate record. More specifically, Boger has not provided this Court with transcripts of all of the various hearings at which the continuances of his trial date were discussed and decided. And Boger did not provide us with the Clerk's Record as required by Indiana Appellate Rule 50(B)(1)(a) (requiring inclusion of Clerk's Record in the Appendix) and Rule 2(E) (defining Clerk's Record).
[¶13] Nevertheless, given our general preference to decide matters on the merits as opposed to legal technicalities, and in the interest in judicial economy, we address Boger's claims. See, e.g., Denning v. State, 991 N.E.2d 160, 162 (Ind.Ct.App. 2013) (court's sentencing statement leaving restitution open did not deprive Court of jurisdiction to decide appeal; prefer to give defendant his day in court); Howell v. State, 684 N.E.2d 576, 577 n.1 (Ind.Ct.App. 1997) (prefer to decide case on merits though appellant's brief filed one day late).
B. Criminal Rule 4(C)
[¶14] Boger claims that the court erred by denying his fifth motion for discharge because he was not brought to trial within the one-year time frame set out in Criminal Rule 4(C).
[¶15] The delays challenged in this appeal were justified on grounds of congestion of the trial court's calendar. "Appellate courts review a trial court's finding of congestion for clear error." S.L. v. State, 16 N.E.3d 953, 959 (Ind. 2014). "In doing so, '[w]e neither reweigh the evidence nor determine the credibility of witnesses'; rather, we 'consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error . . . [,] which leaves us with a definite and firm conviction that a mistake has been made.'" Id. (quoting Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013)). "We begin with the presumption that the trial court's finding of congestion is valid." S.L., 16 N.E.3d at 959.
[¶16] Indiana Criminal Rule 4(C) (2024) generally implements the constitutional right of an accused to a speedy trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). The Rule, which was amended during the pendency of Boger's charges, provides in pertinent part as follows:
No person can be held on recognizance or otherwise to answer a criminal charge for a period in aggregate exceeding one year from the date the criminal charge against such defendant is filed, or from the date of the arrest on such charge, whichever is later. Delays caused by a defendant, congestion of the court calendar, or an emergency are excluded from the time period. If a defendant is held beyond the time limit of this section and moves for dismissal, the criminal charge against the defendant must be dismissed.
Thus, the time limit set forth in Rule 4(C) is automatically triggered at the beginning of a criminal prosecution; the one-year clock runs from the later of charges being filed or an arrest. Watson v. State, 155 N.E.3d 608, 616 (Ind. 2020). Here, the one-year clock automatically began to run on February 12, 2020.
[¶17] Shortly thereafter, beginning on March 3, 2020, our Supreme Court entered a series of orders tolling the operation of Rule 4(C) due to the COVID-19 pandemic. See Matter of Admin. Rule 17 Emergency Relief for Indiana Trial Courts Relating to 2019 Novel Coronavirus (COVID-19), 141 N.E.3d 389, 390 (Ind. Mar. 23, 2020) (mem.); Matter of Admin. Rule 17 Emergency Relief for Indiana Trial Courts Relating to 2019 Novel Coronavirus (COVID-19), 141 N.E.3d 1243, 1243 (Ind. Apr. 3, 2020) (mem.); Matter of Admin. Rule 17 Emergency Relief for Indiana Trial Courts Relating to 2019 Novel Coronavirus (COVID-19), 142 N.E.3d 912, 913 (Ind. Apr. 24, 2020) (mem.); Matter of Admin. Rule 17 Emergency Relief for Indiana Trial Courts Relating to 2019 Novel Coronavirus (COVID-19), 144 N.E.3d 198, 199 (Ind. May 13, 2020) (mem.); Matter of Admin. Rule 17 Emergency Relief for Indiana Trial Courts Relating to 2019 Novel Coronavirus (COVID-19), 145 N.E.3d 787, 788 (Ind. May 29, 2020) (mem.).
[¶18] Boger's calculations of delay attributable to the State (462 days) do not take into account these tolling orders. See Appellant's Br. p. 11. However, applying the tolling orders here, a total of twenty-three days had accrued against the one-year clock; twenty days between Boger's arrest and the first tolling order, and three days between the expiration of the last tolling order and Boger's trial date of August 17, 2020.
[¶19] Boger's trial was scheduled for August 17, 2020, but he agreed with the State's request for a continuance, resulting in his trial date being rescheduled for February 8, 2021. Thus, this one hundred seventy-five day delay was not chargeable against the Rule 4(C) deadline due to Boger's agreement.
[¶20] Next, on February 2, 2021, the trial court sua sponte continued Boger's trial to May 24, 2021 due to the Supreme Court's tolling order issued on November 20, 2020. Additionally, the order referenced the Supreme Court's order issued on December 14, 2020, suspending all jury trials and tolling Rule 4(C) from that date until March 1, 2021. The trial court did not explicitly find an emergency; however, the court's reference to the Supreme Court's orders is indicative of the court's reasoning and supports its conclusion that Boger's trial could not be held prior to March 1, 2021. Thus, no additional time counts against the Rule 4(C) clock due to the effect of the tolling order and the court's determination of emergency conditions. See Blake v. State, 176 N.E.3d 989, 995 (Ind.Ct.App. 2021) (concluding court's continuance of jury trial was reasonable in light of circumstances relating to COVID-19 pandemic condition at the time, and Supreme Court's order reminding courts of obligation to help protect their communities).
In Matter of Admin. Rule 17 Emergency Relief for Indiana Trial Courts Relating to 2019 Novel Coronavirus (COVID-19), 155 N.E.3d 1191, 1191 (Ind. November 20, 2020) (mem.), the Supreme Court provided that "Trial courts have inherent authority to . . . 2. pursuant to Criminal Rule 4, order a continuance of any criminal trial upon the finding of an emergency, without the necessity of a motion; "
[¶21] On May 24, 2021, the parties appeared and the trial court held a hearing during which it granted the State's motion to continue the jury trial over Boger's objection. We observe that Boger has not provided us with a copy of the State's motion, nor has he included a transcript of that hearing. "It is well settled that it is the appellant's burden to provide us with an adequate record to permit meaningful review." Martinez v. State, 82 N.E.3d 261, 263 (Ind.Ct.App. 2017), trans. denied. Without this record, we cannot examine the trial court's decision to grant the continuance. And on appeal, we begin with the presumption that the court's ruling on congestion is valid. S.L., 16 N.E.3d at 959. Thus, having failed to rebut the presumption, Boger has not demonstrated any error in the trial court's decision to reset his trial to December 13, 2021. And only twenty-three days could be counted against the Rule 4(C) clock by this point.
[¶22] After that, the State moved to continue Boger's trial date due to court congestion. Those motions were not based on any of the Supreme Court's COVID-19 orders, but detailed one or two specific trials which would take precedence over Boger's trial and were scheduled for that specific trial setting. The State also generally noted a number of other jury trials scheduled for the same date as Boger's trial settings. Boger bears the burden of establishing clear error. S.L., 16 N.E.3d at 959. He has provided us with the State's motions, which detail why the court's calendar was congested. And these motions support the trial court's orders granting the continuances. Consequently, Boger has not carried his burden on demonstrating clear error in the trial court's finding of congestion.
[¶23] We observe that "Criminal Rule 4 'places an affirmative duty on the State to bring a defendant to trial within one year.'" Hoback v. State, 225 N.E.3d 208, 212 (Ind.Ct.App. 2023) (quoting Gibson v. State, 910 N.E.2d 263, 266 (Ind.Ct.App. 2009)) (emphasis added). And our Supreme Court cautioned in Austin, "'court congestion' is not a blank check for poor judicial administration." 997 N.E.2d at 1043.
[¶24] We are not suggesting poor judicial administration in this instance, though. After all, the trial court said the following about Boger's case at the March 27, 2024 hearing: "This is the one that keeps getting bumped and bumped and bumped[,]" and "[The trial's] gonna, we're gonna have to go. If not this year it will go early next year...." Appellant's App. Vol. II, p. 30. But we reiterate our Supreme Court's concern that "[t]he protections afforded a defendant under Criminal Rule 4 are not to be trampled upon and trial courts must remain vigilant in its enforcement." Austin, 997 N.E.2d at 1043-44.
[¶25] "A defendant with adequate proof may successfully challenge a declaration of 'court congestion' on appeal." Id. at 1043. However, Boger has not done so here. We conclude that Boger has not shown that Criminal Rule 4(C) was violated and, therefore, we find no clear error.
C. Constitutional Claims
[¶26] For the first time on appeal, Boger contends that he is entitled to discharge under the Sixth Amendment to the United States Constitution and article 1, section 12 of the Indiana Constitution.
[¶27] We begin by restating the general rule that "[a] party may not raise an argument or objection on appeal that was not raised before the trial court." Finnegan v. State, 201 N.E.3d 1186, 1197 (Ind.Ct.App. 2023), trans. denied. In this case, the court's March 7, 2024 order denied Boger's fifth motion for discharge brought under Criminal Rule 4(C). Appellant's App. Vol. II, p. 25. Boger moved the court to certify its March 7, 2024 order for interlocutory appeal, naming a lack of compliance by the State and the trial court with the requirements under Criminal Rule 4 as the issues for interlocutory appeal. Appellee's App. Vol. II, pp. 21-23. The trial court's April 1, 2024 order certified the court's March 7, 2024 order for interlocutory appeal. Appellant's App. Vol. II, p. 33. No constitutional challenge was before the court and none was certified for interlocutory appeal. Nor did Boger raise a constitutional challenge in his motion for interlocutory appeal filed with this Court.
[¶28] There are two separate analyses for claims brought under Criminal Rule 4 and under the federal and state constitutions. See S.L., 16 N.E.3d at 958 ("Although Indiana Criminal Rule 4 generally implements the constitutional right of a criminal defendant to a speedy trial, thereby establishing time limits and providing for discharge in the event that limits are exceeded, our review of Rule 4 challenges is separate and distinct from our review of claimed violations of the speedy trial rights secured by the Sixth Amendment of the U.S. Constitution and Article 1, section 12 of the Indiana Constitution." (internal quotations and citations omitted)). Thus, it follows that we cannot imply a constitutional challenge from a challenge specifically based on Criminal Rule 4(C). Furthermore, "[i]n order to properly preserve an issue on appeal, a party must, at a minimum, 'show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.'" Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (quoting Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind 2004)). Here, Boger has failed to demonstrate that he has given the trial court a bona fide opportunity to pass upon his constitutional challenge.
[¶29] Although "a constitutional claim may be raised at any stage of a proceeding, including on appeal[,]" Pava v. State, 142 N.E.3d 1071, 1075 (Ind.Ct.App. 2020), trans. denied, we decline Boger's invitation to address the constitutional issues in adherence to the doctrine of judicial restraint and in maintaining the integrity of the constraints imposed for discretionary interlocutory appeals. See Ind. Appellate Rule 14(B)(1)(b)(ii) (discretionary interlocutory appeal motion to trial court shall contain concise statement of issues to be addressed in interlocutory appeal); DuSablon v. Jackson Cnty Bank, 132 N.E.3d 69, 76 (Ind.Ct.App. 2019) ("Our scope of review in interlocutory appeals is limited to the interlocutory order on appeal."), trans. denied; Daugherty v. Allen, 729 N.E.2d 228, 233 (Ind.Ct.App. 2000) (doctrine of judicial restraint precludes gratuitous judicial review of constitutional questions; we should not make a constitutional determination if the case can be disposed of justly on non-constitutional grounds), trans. dismissed.
[¶30] We have answered the issue certified for interlocutory review by the trial court and decline to address additional claims.
Conclusion
[¶31] Boger has not established clear error in the trial court's decision to deny his fifth motion for discharge under Criminal Rule 4(C). And we decline to address his constitutional claims brought for the first time in his opening brief on interlocutory appeal.
[¶32] Affirmed.
May, J., and Brown, J., concur.