Opinion
23A-CR-2536
08-05-2024
Jessica E. Cunningham, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Jon M. Christofeno Mark D. Altenhof Office of the Elkhart County Public Defender Elkhart, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Megan M. Smith 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Elkhart Superior Court The Honorable David C. Bonfiglio, Judge Trial Court Cause No. 20D04-2208-F6-1068
ATTORNEYS FOR APPELLANT
Jon M. Christofeno
Mark D. Altenhof
Office of the Elkhart County Public Defender
Elkhart, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
FOLEY, JUDGE.
[¶1] Jessica E. Cunningham ("Cunningham") brings this interlocutory appeal challenging the denial of her motion for discharge under Criminal Rule 4(C). Concluding that a dispositive period of delay was authorized by Criminal Rule 4(D), we affirm the denial of the motion and remand for further proceedings.
Facts and Procedural History
[¶2] On August 23, 2022, the State brought the following three charges against Cunningham stemming from a traffic stop: (1) Level 6 felony operating a vehicle while intoxicated endangering a person with a passenger less than eighteen years of age; (2) Class B misdemeanor possession of marijuana; and (3) Class C misdemeanor possession of paraphernalia. The probable cause affidavit indicated that a police officer conducted a traffic stop around 10:45 p.m. after observing a vehicle driving without its headlights on. As the officer approached the vehicle, which Cunningham was driving, the officer "immediately observed that . . . Cunningham had bloodshot/glassy eyes and that she was slurring her words." Appellant's App. Vol. 2 p. 3. The officer "could smell a strong odor of marijuana emitting from the [vehicle]." Id. After Cunningham was advised of her Miranda rights, she informed the officer that there was "a marijuana pipe in the driver['s] door" of the vehicle "and a bag of marijuana behind the radio." Id. Cunningham also "admitted that she smoked marijuana approximately 2 hours ago and that the pipe in the driver's door is what she smoked with." Id. The officer searched the vehicle and retrieved a pipe, which smelled of marijuana. The officer also retrieved a bag, which contained a "green leafy substance [that] field tested positive for marijuana with an aggregate weight of 1.3 grams." Id. There were two minors in the vehicle. Cunningham submitted to a blood test and was placed on pre-trial release.
I.C. § 35-48-4-11(a)(1).
I.C. § 35-48-4-8.3(b)(1).
[¶3] When the trial court conducted its initial hearing on August 26, 2022, the court set a status hearing for November 9, 2022, and a plea hearing for December 14, 2022. Ahead of the plea hearing, Cunningham filed a motion to continue the plea hearing to January 25, 2023. See id. at 21. The reason for the continuance was that "[t]he parties [were] awaiting additional discovery[,] [n]amely, blood draw results." Id. Cunningham wrote that she consulted with the State, which "d[id] not object to th[e] continuance[.]" Id. Cunningham also stated that "[a]ll time shall be attributable to [Cunningham] for purposes of [Criminal] Rule 4, if applicable." Id. The trial court granted the motion to continue.
[¶4] In the ensuing months, Cunningham filed five additional motions to continue, which the trial court granted. The motions were nearly identical in that they noted Cunningham was awaiting the results of the blood draw, the State did not object to the continuance, and the time would be attributed to Cunningham. See id. at 24-38. As a result of the continuances, the plea hearing was delayed until July 26, 2023, which reflected a delay of 224 days. See id. at 21-38.
[¶5] At the plea hearing, Cunningham reported that she "just received lab results from the State . . . on July 19, 2023." Tr. Vol. 2 p. 15. Cunningham then invoked Criminal Rule 4(C). Citing a recent Court of Appeals opinion, Wellman v. State, 210 N.E.3d 811 (Ind.Ct.App. 2023), Cunningham argued all delay associated with the blood test results was attributable to the State, not Cunningham. Cunningham acknowledged that the 365-day period for holding a trial under Criminal Rule 4(C) had not yet expired. However, Cunningham proactively asked the trial court to set "this matter . . . for trial before August 22nd to comply with [Criminal Rule] 4" and caselaw. Tr. Vol. 2 p. 16. In response, the State argued that Wellman was distinguishable, and the delay associated with the blood test results was attributable to Cunningham. At that point, the court indicated it was inclined to schedule a trial within the period Cunningham requested while inviting briefing on the Criminal Rule 4 issue. The court set the trial for August 21, 2023, and the parties later submitted their briefs. See Appellant's App. Vol. 2 pp. 47-53 (Cunningham), 72-76 (State).
[¶6] On August 15, 2023, the State filed a motion in limine asserting that the blood tests "reveal[ed] the presence of THC and a metabolite of THC," and the lab analysts who conducted the testing were "unavailable to testify on August 21, 2023." Id. at 102. As to the unavailability of the witnesses, the State asserted that it "would have been able to procure their appearance at trial were it not for the extremely short notice" regarding the trial setting for August 21. Id. The State asserted that, due to the unavailability of those witnesses, the State would not be "able to admit the results of the blood tests[.]" Id. The State ultimately sought an order "directing [Cunningham] and/or any witnesses called by [Cunningham] . . . not to mention . . . or make any statements or insinuations regarding the absence of a chemical test of [Cunningham's] blood." Id. at 103.
[¶7] On August 16, 2023, the trial court held a hearing on the State's motion. At the hearing, the State represented that the blood testing was conducted by a lab "located in the Philadelphia, Pennsylvania area," and that the two lab analysts who conducted the testing "[we]re not available" for a trial on August 21, 2023. Tr. Vol. 2 p. 31. The State further represented that one analyst was "on military orders . . . for a few weeks" and the other was "on [a] previously scheduled vacation[.]" Id. Cunningham asked the court to deny the motion in limine. The court took the matter under advisement, noting it would review the parties' briefing and "one of the things" it "need[ed] to consider" was "if [it] should just delay the trial to a later date[.]" Id. at 34-35. The next day, the court issued an order setting the trial for October 16, 2023, which was fifty-six days after the previous setting. In its order, the court said: "It appears to the court that[,] . . . by utilizing an outside lab[,] [the State] was making reasonable efforts to attain the results, it being known the state labs have huge backlogs[.] [S]o on that basis the court is re-setting the trial[.]" Appellant's App. Vol. 2 at 109. That same day, Cunningham filed a written objection asserting the "sua sponte continuance" was improper because "neither party moved for a continuance[.]" Id. at 110. She maintained her objection to "any trial date later than the previously set August 21, 2023," arguing that "Criminal Rule 4 time expires on August 23, 2023." Id. at 111.
[¶8] On August 23, 2023, Cunningham filed a motion for discharge along with a supporting memorandum. See id. at 115-21. On September 1, 2023, the State filed a Motion for Criminal Rule 4(D) Extension of Time. The State was not requesting any additional continuance. Rather, the State sought to cure any procedural irregularity as to the prior-issued continuance. Indeed, the State asked the court to characterize the prior "sua sponte . . . continuance" as "in compliance with the time extension provision of Criminal Rule 4(D)." Id. at 141. With regard to the continuance, the State asserted that it "had evidence which could not be procured" for the prior trial date, "but which the State had made reasonable efforts to procure, namely[,] two analysts . . . who [performed] the toxicology analysis in this case." Id. The State further asserted that "there was just ground to believe that the evidence could be produced within 90 days." Id. Cunningham objected to the State's motion. On September 19, 2023, the trial court issued an order stating that its prior continuance was ordered under Criminal Rule 4(D), and therefore, the trial date of October 16 was within the time allowed. On September 27, 2023, the trial court denied Cunningham's motion for discharge. Cunningham then perfected this interlocutory appeal, with the trial court ordering a stay of the criminal proceedings pending appeal.
Discussion and Decision
[¶9] This case involves the interpretation and application of Criminal Rule 4, which is a procedural rule implementing the right to a speedy trial. See, e.g., State v. Jackson, 857 N.E.2d 378, 380 (Ind.Ct.App. 2006). If a trial does not begin within the time prescribed in the rule, the defendant is entitled to discharge, i.e., dismissal of charges. See Ind. Criminal Rule 4. Here, Cunningham brings an interlocutory appeal challenging the denial of her motion for discharge.
Effective January 1, 2024, the Indiana Supreme Court adopted non-substantive changes to Criminal Rule 4.
[¶10] "We generally review a trial court's ruling on a motion for discharge for an abuse of discretion," Battering v. State, 150 N.E.3d 597, 600 (Ind. 2020), which occurs if the decision is clearly against the logic and effect of the facts and circumstances, e.g., Small v. State, 112 N.E.3d 738, 741 (Ind.Ct.App. 2018). However, to the extent the trial court makes findings in support of a ruling under Criminal Rule 4, we review those findings for clear error. See Grimes v. State, No. 24S-CR-217, 2024 WL 3173270, at *3 (Ind. June 26, 2024). "Findings of fact are only clearly erroneous if there is no factual support for them in the record whatsoever, either directly or by inference." Johnson v. Wysocki, 990 N.E.2d 456, 460 (Ind. 2013). Moreover, to the extent the "relevant facts are undisputed and the issue is a question of law, we evaluate a Criminal Rule 4 motion for discharge de novo." Battering, 150 N.E.3d at 600 .
[¶11] Here, the State brought charges against Cunningham on August 23, 2022. Based on the date of the charging information, Cunningham contends that a trial should have commenced prior to August 23, 2023. Cunningham argues she was entitled to discharge under Criminal Rule 4(C), which provides:
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. The one-year time limit does not apply to a retrial following a mistrial or vacation of a conviction or sentence following a motion to correct error, appeal, post-conviction relief, or habeas corpus proceedings. The trial court must commence the retrial within a reasonable time.
Where-as here-the trial court stayed the criminal proceedings during the pendency of the interlocutory appeal, "the time for an interlocutory appeal is excluded from [Criminal] Rule 4(C)'s limitation." Battering v. State, 150 N.E.3d 597, 601 (Ind. 2020) (quoting Pelley v. State, 901 N.E.2d 494, 500 (Ind. 2009)).
[¶12] For Cunningham to be entitled to discharge under Criminal Rule 4(C), two periods of delay must be attributable to the State: (1) the delay from continuing the case while Cunningham awaited blood test results; and (2) the delay from continuing the case due to the unavailability of witnesses, where the trial court clarified the continuance was pursuant to Criminal Rule 4(D). Thus, so long as one of these periods of delay was not attributable to the State, we must affirm the denial of Cunningham's motion for discharge. In resolving this appeal, we focus only on the latter period of delay due to the unavailability of witnesses.
We therefore do not address arguments regarding the attribution of time associated with blood test results.
[¶13] Here, the trial court continued the case after the State represented that two of its witnesses could not attend the jury trial scheduled for August 21. The State argues the continuance was proper under Criminal Rule 4(D), which generally allows a continuance of up to ninety days due to the unavailability of evidence:
If a defendant moves for dismissal under this rule, the trial may be continued for ninety days and the defendant released without money bail or surety, subject to such restrictions and conditions as determined by the court, if the state shows the following:
(1) there is evidence the state would be entitled to present at trial;
(2) the evidence is presently unavailable;
(3) a reasonable and diligent effort was made to procure the evidence in a timely manner prior to moving for an extension of time; and
(4) the evidence can be obtained within ninety days.
If the defendant is not brought to trial within the ninety-day period, the criminal charges against the defendant must be dismissed with prejudice.
For purposes of this section, the evidence sought need not be essential or unique, nor is the state required to actually present such evidence at trial. However, if the state fails to make reasonable and diligent efforts to procure the evidence after the court grants the extension, the court may dismiss the criminal charges against the defendant with prejudice.
[¶14] On appeal, Cunningham argues the trial court lacked the authority to order a continuance under the circumstances because "[n]either the State nor the defense requested a continuance" and "[n]othing in . . . Criminal Rule 4 authorized the [c]ourt to continue the defendant's trial [sua sponte] when there was no finding of congestion or an emergency." Appellant's Br. p. 22. At times, Cunningham also appears to challenge the adequacy of the State's showing that a continuance was warranted under Criminal Rule 4(D).
[¶15] To the extent Cunningham argues that Criminal Rule 4 constrains the trial court's authority to order a continuance, we disagree. "Trial courts are vested with inherent authority to control their own proceedings." Parker v. State, 567 N.E.2d 105, 111 (Ind.Ct.App. 1991), trans. denied.; cf. Terry v. Terry, 313 N.E.2d 653, 667 (Ind.Ct.App. 1974) (recognizing it was "within the sound discretion of the judge" to grant a "sua sponte . . . continuance" under the circumstances). In the context of criminal proceedings, Criminal Rule 4 speaks to the effect of a continuance rather than the authority to order a continuance.
[¶16] As to Criminal Rule 4(D), this rule permits a ninety-day extension of the rule period after the defendant has moved for discharge. Here, the trial court had scheduled a trial outside the 365-day period set forth in Criminal Rule 4(C), and Cunningham moved for discharge when that period expired. The State moved to "cover" an extension of time under the authority of Criminal Rule 4(D) such that the extension was not attributable to the State. At that point, the trial court recognized grounds to extend the rule period under Criminal Rule 4(D), so Cunningham was not entitled to discharge. Because a defendant cannot properly move for discharge until the rule period has expired, the instant sequence of events aligns with Criminal Rule 4(D) and, therefore, was procedurally proper. See Crim. R. 4(D) (permitting, upon a motion for discharge, a ninety-day extension of the rule period for unavailable evidence); Cf. Appellant's Br. p. 17 ("It is clear from the motion that the State was unable to produce two out-of-state witnesses for trial, necessary to set the foundation to introduce the results of the blood draw."). Thus, we cannot say the court erred in its application of Criminal Rule 4. Cundiff v. State, 967 N.E.2d 1026, 1028 (Ind. 2012) ("[T]he purpose of Criminal Rule 4 is not to provide defendants with a technical means to avoid trial but rather to assure speedy trials.").
[¶17] Because Cunningham's motion for discharge was premised on the foregoing period of delay being attributable to the State, we conclude that Cunningham has not shown she was entitled to discharge. We therefore affirm the denial of the motion for discharge, and we remand for further proceedings in this case.
[¶18] Affirmed and remanded.
Riley, J., and Brown, J., concur.