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On December 9, 2011, Indiana State Police Trooper Chris Townsend arrested Allen for driving while intoxicated … and Allen was released on bond. Allen subsequently was arrested and jailed for an unrelated offense in Cause No. 49G20-1204-FB-25327 (“FB-25327”). [Footnote omitted.] And on May 15, 2012, pursuant to a local rule, the trial court transferred the instant case to the trial court handling FB-25327. After Allen pleaded guilty in FB-25327, and after the trial court sentenced him to ten years in that case, the instant case was transferred back to the original trial court on October 15, 2012. At a pre-trial conference on October 16, the trial court scheduled a bench trial for January 23, 2013. During that pre-trial conference, Allen notified the trial court that he had just been sentenced to ten years in the Department of Correction in the other cause, and the court reporter advised Allen and his counsel that his counsel would have to file a transport order for Allen to be present at his trial.
On January 23, 2013, the State and defense counsel were present and ready for trial, but Allen was not there.3 The trial court issued a “Rearrest Warrant with Bond set in the amount of $5000[.]” [Record citations omitted throughout.]
[Footnote 3:] At the subsequent hearing on Allen’s Criminal Rule 4(C) motion, the State argued that defense counsel did not appear to know where Allen was and, in any event, did not notify the court that Allen was incarcerated on that date.
On September 5, 2013, Allen filed a pro se Verified Petition for Resolution of Detainer. On September 10, the trial court struck Allen’s pro se petition because he was represented by counsel. And on April 23, 2014, Allen, by his counsel, filed his motion to discharge pursuant to Criminal Rule 4(C). The trial court denied that motion following a hearing on June 25. …
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Allen contends that he is entitled to discharge under Indiana Criminal Rule 4(C). Criminal Rule 4(C) provides that a defendant may not be held to answer a criminal charge for greater than one year unless the delay is caused by the defendant, emergency, or court congestion. [Citation omitted.] …
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Again, at the October 16, 2012, pre-trial conference, Allen advised the trial court, in the presence of the State, that he had just been sentenced to ten years in FB-25327. Allen maintains that that notice, in open court, was sufficient notice of his whereabouts and he should not be charged with the delay that resulted from his failure to appear at his January 23, 2013, trial.
However, at the October 16, 2012, pre-trial conference, the court reporter instructed defense counsel that he would have to file a transport order for Allen’s appearance at the trial. In other words, defense counsel was responsible for making sure that Allen would appear at his trial, and, on appeal, Allen does not explain defense counsel’s failure to obtain a transport order. At the very least, defense counsel should have notified the trial court of Allen’s incarceration on January 23, 2013, and, again, Allen offers no explanation for defense counsel’s failure to explain Allen’s absence on that date. … [D]efense counsel’s failure to obtain a transport order and failure to explain Allen’s absence is attributable to Allen, and Allen is charged with 518 days from January 23, 2013, until June 25, 2014, the date the trial court denied his motion for discharge.6
[Footnote 6:] Again, the trial court properly struck Allen’s September 5, 2013, Verified Petition for Resolution of Detainer because he filed it pro se while he was represented by counsel. Thus, Allen’s attempt to notify the trial court of his incarceration on that date was for naught.
The State is charged for … a total of 363 days of delay … , which is less than one year. Thus, we hold that Allen was not entitled to discharge under Criminal Rule 4(C), and the trial court did not abuse its discretion when it denied that motion.
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Finally, Allen contends that the State’s delay in bringing him to trial violates his right to a speedy trial as guaranteed by the United States and Indiana Constitutions. …
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But … Allen has not shown any specific prejudice he has suffered by the delay, other than to speculate that “witness memories and recollections can be compromised.” We agree with the State that the evidence against Allen is straightforward, and any prejudice to Allen from the delay is minimal, if any. We cannot say that the State’s delay in bringing Allen to trial violated his constitutional rights to a speedy trial.
Affirmed.
Kirsch, J., concurs.
Barnes, J., dissents with separate opinion.
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I respectfully dissent. While I believe that trial judges, clerks, prosecutors, and other court personnel should not be obligated to do a defendant’s work on his or her behalf, I cannot agree with the majority that the first time the State and the trial court received actual notice of Allen’s incarceration was April 23, 2014.
… Even if, as the majority concludes, the delay from defense counsel’s failure to obtain a transport order is attributable to Allen, I believe that once the trial court and the State were notified of Allen’s incarceration, the State was obligated to proceed with the case in a timely manner. [Citation omitted.]
… Although I agree with the majority that the trial court was not required to address the merits of Allen’s pro se petition because he was represented by counsel, I believe Allen’s petition was sufficient to serve as formal written notice of his incarceration as we have previously required from a defendant incarcerated in one county and facing charges in another. [Citation omitted.]
Allen informed the trial court of his incarceration in person on the record at the October 2012 pretrial conference. Even if this actual notice of his incarceration was not sufficient to preserve Allen’s Rule 4(C) rights, I believe that Allen’s September 5, 2013 pro se petition was. If these attempts at notification were not sufficient, what else was Allen to do?
I know this case arose in Marion County, where the criminal case overload is, at times, chaotic; however, Allen did what he could to protect his rights. Although I am not a fan of discharges pursuant to Criminal Rule 4(C), I would recalculate the time in a manner that reflects the attempt(s) by Allen to notify the trial court of his whereabouts. If that results in discharge, so be it.