May, J.
The State of Indiana appeals the trial court’s grant of Nicholas Lindauer’s motion to dismiss the charges against him pursuant to Indiana Criminal Rule 4(C). …
On April 6, 2016, the State charged Lindauer with a Class C misdemeanor operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or more, Class C misdemeanor operating a vehicle while intoxicated, Class B misdemeanor possession of marijuana, Class C misdemeanor possession of paraphernalia, and Level 6 felony operating a vehicle with an ACE of .08 or more. …
On June 23, 2016, Lindauer moved to continue the progress hearing scheduled for June 27, 2016 … The trial court granted the motion and reset the hearing to August 22, 2016.
On August 22, 2016, the trial court conducted a progress hearing. Lindauer explained that plea negotiations were ongoing and stated that “we have a shot at getting this resolved[.]” The CCS states: “On Defendant’s motion matter is reassigned for Progress Hearing on October 24, 2016.”
At the hearing of October 24, 2016, Lindauer referenced the continuing negotiations and requested the hearing to be reset “for an anticipated plea.” Accordingly, the CCS reflects: “On Defendant’s motion matter is reassigned for progress hearing on November 14, 2016 for possible plea.”
On November 14, 2016, the parties informed the trial court that no plea had been reached. Lindauer moved to set the case for a later progress hearing, to which the State acquiesced. The court offered January 30, 2017, to which Lindauer responded: “Sounds great.”
On January 30, 2017, the court conducted a progress hearing. … Lindauer requested the court reset the case for February 27, 2017, because “[w]e’re on our third version of the plea agreement.” …
At the February progress hearing, Lindauer advised the trial court that he “pitched a potential resolution to [the State]. [The State] wants to do some investigation on its own. … Accordingly, “[o]n Defendant’s motion matter is reassigned for March 20, 2017.”
Again, during the March hearing, Linduaer notified the court that they “just need a date a couple weeks out” to come to a resolution with the State. Therefore, “[o]n Defendant’s motion matter is reassigned for April 10, 2017.”
At the April 10, 2017, progress hearing, Lindauer admitted that he had been unable to reach a plea agreement with the State and requested the trial court set the cause for trial on May 8, 2017. The State objected to the proposed trial date because it did not allow for sufficient time to subpoena the witnesses but offered to be ready for trial on May 23 or 30, 2017. The trial court was not available on May 23, 2017, and Lindauer refused the date of May 30, 2017. After the trial court reaffirmed May 8 would not work, Lindauer asked if he ever formally waived his Criminal Rule 4 rights and argued that, if he had not formally waived his right, any trial date would be outside the Rule 4 time period. Lindauer agreed to provide the trial court with authority regarding his Rule 4 rights. The court set a “jury trial June 20, 2017.”
On April 13, 2017, Lindauer filed a motion to dismiss pursuant to Indiana Criminal Rule 4(C). … On August 23, 2017, the trial court summarily granted Lindauer’s motion and dismissed the cause.
The State contends that the trial court erred by dismissing the cause pursuant to Indiana Criminal Rule 4(C). …
The State has an affirmative duty to bring a defendant to trial within one year. Leek, 878 N.E.2d at 277. A defendant has no obligation to remind the court of the State’s duty, nor is a defendant required to take affirmative action to ensure he is brought to trial within that period. Id.
Nevertheless, if a defendant takes action that delays the proceeding, “that time is chargeable to the defendant and extends the one-year time limit, regardless of whether a trial date has been set at the time or not.” Cook v. State, 810 N.E.2d 1064, 1066-67 (Ind. 2004). …
….
Using the date the charges were filed against Lindauer, the Criminal Rule 4(C) time period began to run on April 6, 2016. Barring any delay extending the time, the State was required to bring Lindauer to trial by April 5, 2017. …
The CCS in this case clearly states that hearings set in June 2016, August 2016, October 2016, November 2016, January 2017, February 2017, and March 2017 were rescheduled on Lindauer’s motion. … Thus, every extension of time that occurred between June 23, 2016, and April 10, 2017, occurred because of a request made by Lindauer.
… As those seven continuances, which cumulatively accounted for 288 calendar days, were all ordered because of a motion by Lindauer, all 288 days are attributable to Lindauer and do not count toward the Criminal Rule 4(C) deadline. See Cook, 810 N.E.2d at 1068 …
As our Indiana Supreme Court has explained, Criminal Rule 4(C) was created “to move cases along . . . , not to create a mechanism to avoid trial.” Brown, 725 N.E.2d at 825. A defendant cannot habitually move to reset the preliminary hearing at which the trial date was to be set and then assert a meritorious claim that his right to trial within a year was violated. Because the trial court committed clear error when it granted Lindauer’s motion to dismiss, we reverse and remand for further proceedings.
Reversed and remanded.
Mathias, J., concurs.
Riley, J., dissents with separate opinion.
During the April 10, 2017 progress hearing, Lindauer advised the trial court that the negotiations were not successful and requested a trial date. Until Lindauer made this request, no trial date had ever been scheduled, despite the State’s affirmative duty to bring Lindauer to trial before June 2, 2017. …
Here, Lindauer was aware of the Criminal Rule 4(C) timeframe. During the April 10, 2017 hearing, Lindauer advised the trial court about his Criminal Rule 4 right but the trial court nevertheless scheduled the trial date outside this period. …
While Lindauer might not have explicitly objected at his earliest opportunity—i.e., at the hearing—it was clear to all parties involved that he was invoking his right to being brought to trial within the Criminal Rule 4 term. Accordingly, as Lindauer timely objected and did not waive his Criminal Rule 4(C) rights, I would affirm the trial court’s decision to dismiss the case.