Riley, J.
Appellant-Defendant, Kyle Dilley (Dilley), appeals his convictions for dealing in methamphetamine with an enhancing factor, a Level 2 felony, Ind. Code §§ 35-48-4-1.1(2)(A)(e)(2), 35-50-2-4.5; dealing in marijuana with an enhancing factor, a Level 5 felony, I.C. §§ 35-48-4-10(a)(2)(C)(d)(1)(A), 35-50-2-6; and two Counts of possession of a narcotic drug with an enhancing factor, Level 5 felonies, I.C. §§ 35-48-4-1.1(a)(2)(C)(d)(1)(A), 35-50-2-6.
We reverse.
Dilley presents us with two issues on appeal, one of which we find dispositive and restate as: Whether the trial court erred when it granted the State’s motion for a continuance based upon the unavailability of laboratory testing results.
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Dilley requested a speedy trial and argues that the trial court erred when it granted the State a continuance of his trial date pursuant to Indiana Criminal Rule 4(D) based upon the unavailability of the laboratory testing results. The right of an accused to a speedy trial is provided by our federal and state Constitutions. See U.S. Const. amend. VI; Ind. Const. art. 1, § 12. The mechanism for the enforcement of this right, Indiana Criminal Rule 4, generally provides that an accused must be brought to trial within seventy days of making a speedy trial motion unless he causes delay or there is insufficient time to try him due to court congestion. See Ind. Crim. Rule 4(B)(1). Criminal Rule 4 also provides for an extension of the time to bring a defendant to trial 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 . . .
Crim. R. 4(D). Thus, in order to grant a continuance as provided in Rule 4(D), the trial court must be satisfied that the State made a reasonable effort to procure the evidence. Smith v. State, 802 N.E.2d 393, 401 (Ind. Ct. App. 2013), trans. denied. Whether the requested delay is reasonable should be judged according to the circumstances of the particular case. Id.
Dilley argues that the State did not make reasonable efforts to procure the test results because it did not submit the evidence for testing until after it filed its request for a Rule 4(D) continuance. We note that, although the State offers a response to Dilley’s Rule 4(D) argument in its Brief of Appellee, it did not address Dilley’s argument pertaining to the timing of the sending of the drugs to the laboratory, which was the heart of his appellate claim regarding the impropriety of the Rule 4(D) continuance. The State’s “failure to respond to an issue raised in an appellant’s brief, is, as to that issue, akin to failing to file a brief.” Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002).
At the final pre-trial conference on May 31, 2018, the prosecutor informed the trial court that the only matter “outstanding” for trial preparation was the test results. (Supp. Tr. Vol. II, p. 22). In her Rule 4(D) continuance motion filed June 1, 2018, a mere seventeen days before trial, the prosecutor averred that the continuance was necessary because the testing results were “not yet prepared.” (Appellant’s App. Vol. II, p. 46). In her argument at the hearing on the continuance motion, the prosecutor represented to the trial court that she had of personally contacted the director of the laboratory “to confirm that the lab results would be back by June 19th . . .” (Tr. Vol. II, p. 3). The implication of these statements was that testing was already underway. The prosecutor did not inform the trial court in either her written or oral motions that the evidence had not been conveyed to the State Laboratory for testing and was, in fact, not conveyed until June 4, 2018, after the written continuance motion was filed. This was a fact that had to have been known to the prosecutor when she argued the continuance motion on June 5, 2018, and which she should have made known to the trial court before it rendered its ruling.
Dilley’s trial date was confirmed at the May 31, 2018, final pre-trial conference in this matter. The State’s written continuance motion and its oral argument on that motion were based on Rule 4(D), not court congestion. At the June 5, 2018, hearing on the continuance motion, the trial court did not orally indicate when granting the continuance that court congestion factored into its decision, and the trial court did not cite court congestion in its written order granting the continuance. Dilley was not brought to trial by June 19, 2018. He preserved his speedy trial right by objecting to the Rule 4(D) continuance before the trial court granted it and reset his trial date outside of the seventy-day period. See Otte v. State, 967 N.E.2d 540, 544 (Ind. Ct. App. 2012) (holding that defendant preserved his speedy trial claim by objecting to a new trial date even though he did not also move for discharge), trans. denied. As such, Dilley was entitled to discharge of the charges against him.
Based on the foregoing, we conclude that Dilley has demonstrated that the trial court’s grant of the Rule 4(D) continuance under the facts and circumstances of this case constituted prima facie error.
Reversed.
Vaidik, C. J. and Bradford, J. concur