Slaughter, J.
Indiana Criminal Rule 4 balances two competing interests: a criminal defendant’s constitutional right to a speedy trial and a trial court’s need for flexibility in managing its calendar. The rule requires the State to try defendants in a prompt manner but also permits trial courts to reschedule trials in case of calendar “congestion” or an “emergency”. Ind. Crim. Rule 4(B)(1). When a trial court postpones a criminal trial due to congestion and the defendant objects, we apply a burden-shifting test. Our test first gives deference to the trial court’s initial finding of congestion. But if the defendant presents a prima facie case that the court’s congestion finding is inaccurate, we shift the burden to the trial court to explain why its calendar required continuing the trial. If the court fails to meet its burden, the defendant is entitled to have the State’s claim against him dismissed or discharged.
Here, we hold the defendant is entitled to discharge. He met his burden to show a prima facie case of no court congestion when he submitted the court’s docket showing no other scheduling conflicts with priority over his criminal trial. This showing shifted the burden to the trial court to explain the postponement. But the trial court failed to meet even this low bar because it gave no explanation when it denied the defendant’s motion for discharge. We grant transfer and reverse and remand with instructions.
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Under Rule 4, a defendant may move for a speedy trial, which obliges the State to bring the defendant to trial within seventy days, or else the defendant is “discharged”. Crim. R. 4(B)(1) (effective to Dec. 31, 2023). But this obligation has exceptions. A court may delay the start of trial past the seventy-day window due to congestion of the court’s calendar or an emergency. Ibid. Though we recently amended the rule, its substance as relevant here remains unchanged. See Crim. R. 4 (effective Jan. 1, 2024). The prior rule said the defendant must be “discharged”; the current rule says he must be “dismissed”. Compare Crim. R. 4(B)(1) (effective to Dec. 31, 2023), with Crim. R. 4(B) (effective Jan. 1, 2024). Because Grimes moved for discharge before we amended the rule, all references to the rule throughout this opinion are to the version effective to December 31, 2023—the version, that is, providing the remedy of “discharge”. That said, our opinion today applies with equal force to the current version of Criminal Rule 4.
Here, both the congestion and emergency exceptions are at play—the trial court cited court congestion when it delayed Grimes’s trial, and the State raises the emergency exception as an alternative basis to affirm the trial court’s judgment. First, we hold the trial court erred in denying Grimes’s motion for discharge because his motion made an unrebutted prima facie case that the court’s congestion finding was erroneous. Then, we hold the State’s alternative emergency-exception argument is waived.
We use a burden-shifting test to evaluate a trial court’s decision to reschedule a trial past the seventy-day deadline for calendar congestion. We provide a roadmap below for both defendants and trial courts to navigate this test. We then apply the roadmap here, finding that Grimes made a prima facie case for discharge, and the trial court failed to rebut that showing. Because Grimes made a prima facie case, we afford no deference to the trial court’s summary order postponing his trial due to congestion. Grimes is thus entitled to discharge.
The burden-shifting test starts with the trial court’s order finding the court’s schedule is congested and continuing the trial date. A trial court may order a continuance due to congestion without providing further explanation.
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The defendant has two steps to meet his burden. First, the defendant must object at the “earliest opportunity” when the trial court continues the trial. Smith v. State, 477 N.E.2d 857, 861–62 (Ind. 1985). At this point, the defendant may present evidence to convince the court it must schedule the trial within the seventy-day deadline, thus preventing a speedy-trial violation in the first place. See Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000) (noting defendants must object to a Criminal Rule 4 violation to “facilitate[] compliance by trial courts with the speedy trial requirement”). Second, if the seventy-day deadline passes without a trial, the defendant must move for discharge. Clark, 659 N.E.2d at 552. To succeed on this motion, the defendant must show that the court’s congestion finding was “factually or legally inaccurate” when it continued the trial. Ibid.
The level of the defendant’s burden depends on whether the court gives a factual basis for finding court congestion in its continuance order or in response to the defendant’s discharge motion. If the court does not explain its congestion finding, the defendant need only make a prima facie case for discharge. Ibid. This is a low bar. But once the defendant makes a prima facie case, the burden then shifts back to the trial court to explain its congestion finding. If the trial court gives no further explanation, the defendant is entitled to discharge. Austin, 997 N.E.2d at 1042. But if the court explains its finding, either in its continuance order or in response to the defendant’s discharge motion, the defendant must show the trial court’s finding was clearly erroneous. Clark, 659 N.E.2d at 552. This is a much steeper burden for the defendant.
Here, the trial court did not explain its congestion finding in its order continuing the trial date. Grimes thus needed to make only a prima facie case in his motion for discharge, which he did. Because the trial court did not provide further findings in response, Grimes is entitled to discharge.
At the first step of the test, the trial court met its initial burden when it issued its order continuing the trial. While the trial date was initially set for December 19, within the seventy-day limit, the trial court on its own motion moved the trial to January 25 because of calendar congestion.
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An alternative option, and the preferable one, would have been for the trial court to provide the factual basis for finding congestion in its initial continuance order. At each step of the process, the trial court’s burden is low. It need not include a factual basis in its initial continuance order, and we defer to a court’s explanation in response to a discharge motion. Clark, 659 N.E.2d at 552. Even so, we encourage trial judges to take a few extra moments and include the factual basis in their initial continuance order.
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When the court continued his trial past the seventy-day deadline, Grimes had to clear two hurdles to be discharged. First, he had to object at the earliest opportunity. Smith, 477 N.E.2d at 861–62. Grimes met this first hurdle by filing an objection the same day he received notice of the continuance. Though the trial court overruled his objection in a summary order, Grimes preserved his objection for discharge in the future.
Second, once the court denied his objection, Grimes had to make a prima facie case in his motion for discharge. Austin, 997 N.E.2d at 1042. Grimes cleared this hurdle as well. To make a prima facie case, a defendant may submit the court’s docket and show a date when the defendant’s trial could have occurred before the seventy-day deadline. Ibid. The issue here is whether attaching a copy of the trial court’s docket that was obtained after the trial court ordered the continuance (as Grimes did here) is enough to make out a prima facie case. We hold that it is, and that Grimes met this low burden here.
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Having established that Grimes can submit a docket dated nine days after the trial court ordered the continuance and before the seventy-day speedy-trial deadline, we must decide whether the docket he submitted refutes the judge’s finding of congestion. We hold that it does.
To show an opening on the court calendar, a defendant must show that no other cases with priority were scheduled before the defendant’s seventy-day deadline to prevent the defendant’s trial from taking place. Ibid. For example, a criminal case typically has a higher priority than a civil case, unless the civil case involves a long-scheduled, complex trial that poses extenuating circumstances to litigants and witnesses. Austin, 997 N.E.2d at 1041. Among criminal cases, one with a defendant who filed a speedy-trial motion takes priority over one with a defendant who did not, and a criminal case with a longer-incarcerated defendant takes priority over one with a more recently charged defendant. Id. at 1040–41. To make a prima facie case, the defendant need only show that no trials or hearings with obvious priority were scheduled at a time that would have prevented the defendant’s trial from taking place within the seventy-day window.
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Finally, we address the State’s alternative argument for affirming the trial court’s judgment—the emergency exception under Criminal Rule 4(B)(1). The State argues the need for a special prosecutor was an exigent circumstance that required delaying the trial and resulted from Grimes’s refusal to waive the prosecutor’s conflict. We are loath to affirm the continuance of a trial for court congestion on a basis the trial court never considered. The State did not request a special prosecutor from the trial court until December 19—after the trial court continued the trial. The State could have raised its emergency-exception argument in response to Grimes’s motion for discharge. Even when the court moves a trial on its own motion, the State must still ensure the defendant’s trial is not delayed in error. See id. at 1037 (holding State has affirmative duty to bring defendant to trial under Rule 4). The State’s failure to raise the issue in the trial court means it is waived. Harris v. State, 165 N.E.3d 91, 98 (Ind. 2021).
For these reasons, we reverse the trial court’s judgment and remand with instructions to discharge Grimes.
Rush, C.J., and Molter, J., concur.
Goff, J., dissents with separate opinion in which Massa, J., joins.
Goff, J., dissenting.
I respectfully disagree with the Court’s holding that Grimes carried his burden of showing that the trial court’s congestion finding was inaccurate at the time it continued the trial. In my view, Grimes failed to meet this burden by submitting a copy of the court’s docket dated nine days after the court rescheduled trial and by merely alleging, without testimony or affidavit from court staff, that “no jurors were summoned for duty” the week of the original trial date. See Appellant’s Br. at 12.
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The question here is whether submitting a copy of the trial court’s docket, as it stood several days after the court ordered the continuance, is sufficient to establish a prima facie case. See ante, at 9.
I would answer this question in the negative. To determine the accuracy of a congestion finding, our precedent considers it “necessary to view the trial court’s calendar on the date that the court granted the trial continuance.” Truax v. State, 856 N.E.2d 116, 121 (Ind. Ct. App. 2006) (emphasis added). Cf. Clark, 659 N.E.2d at 552 (holding that the defendant was entitled to discharge by showing “that, on the day the trial court made the decision to postpone the trial and enter the order finding congestion, no conflicting jury trial was scheduled and no jurors had been summoned”) (emphasis added). Indeed, given the frequency with which a trial court’s schedule changes, a docket dated several days after the continuance order is not, in my view, presumptively “sufficient to establish a given fact”—here, the state of the court’s calendar at the material time. See ante, at 9 (quoting Johnson v. State, 283 N.E.2d 532, 534 (Ind. 1972)).
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Still, the Court holds that, given the “low bar” of establishing a prima facie case, Grimes is entitled to discharge. Ante, at 9, 11. While acknowledging that “a docket from the same day that the trial court issued its continuance order would be ideal,” the Court nevertheless concludes that, in the absence of “conflicting evidence” that would support a congestion finding at the time of the continuance, “a post-dated docket obtained before the seventy-day speedy-trial deadline” may suffice to establish a prima facie case, even when the defendant submits no supporting evidence from court staff. Id. at 9, 10.
This holding, in my view, improperly shifts the burden to the trial court, effectively rejecting the presumed validity of the court’s initial congestion finding if it lacks contemporaneous explanation or documentation.
Finally, it’s worth emphasizing that the trial court, whether on rebuttal or when issuing its initial continuance order, can meet its low burden by offering a simple factual basis to support its congestion finding—e.g., noting the case and cause number requiring priority treatment—and thus avoid cases like this.
For the reasons above, I respectfully dissent.
Massa, J., joins.