Dennis Burgher v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Sep 08 2017, 6:09 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Dennis Burgher Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis Burgher, September 8, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1608-CR-1823
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G03-1602-F3-7208
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 1 of 4
Case Summary
[1] Dennis Burgher, pro se, appeals the trial court’s denial of his motion for
discharge under Indiana Criminal Rule 4. We dismiss.
Issue
[2] Burgher raises several issues, but we address only a dispositive issue raised by
the State, which we restate as whether Burgher’s appeal should be dismissed
because it is moot.
Facts
[3] In 2016, the State charged Burgher with Level 3 felony rape, Level 5 felony
battery, Level 5 felony criminal confinement, and Level 5 felony strangulation.
On March 2, 2016, Burgher filed a request for a speedy trial, and the trial court
set his trial for May 5, 2016. The State filed a request for DNA testing, which
the trial court granted. On April 14, 2016, the State filed a motion for a
continuance under Indiana Criminal Rule 4(D), which the trial court granted.
The trial court then set the trial for July 14, 2016. On July 7, 2016, Burgher
filed a motion for discharge pursuant to Criminal Rule 4(B), which the trial
court denied.
[4] On July 14, 2016, Burgher sought to add a witness, but his trial counsel had
been unaware of the witness or the substance of her testimony. The trial court
reset the trial for July 21, 2016, and charged the delay to Burgher. On July 21,
2016, because an essential witness was not present, the State moved to dismiss
Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 2 of 4
the charges against Burgher, which the trial court granted. Burgher now
appeals.
Analysis
[5] On appeal, Burgher argues that the trial court erred by denying his motion for
discharge, that the cause should have been dismissed with prejudice on July 21,
2016, and that his trial counsel was ineffective. However, the State argues that
Burgher’s appeal is moot and that we should dismiss. We agree.
[6] Our courts have held:
“[W]here the principal questions at issue cease to be of real
controversy between the parties, the errors assigned become
moot questions and this court will not retain jurisdiction to
decide them. Stated differently, when we are unable to provide
effective relief upon an issue, the issue is deemed moot, and we
will not reverse the trial court’s determination where absolutely
no change in the status quo will result.”
Breedlove v. State, 20 N.E.3d 172, 174 (Ind. Ct. App. 2014) (quoting Bell v. State,
1 N.E.3d 190 (Ind. Ct. App. 2013)), trans. denied. The trial court here dismissed
the charges against Burgher at the State’s request. Even if we were to address
Burgher’s arguments, “absolutely no change in the status quo” would result. Id.Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 3 of 4
Consequently, we are unable to provide effective relief to Burgher on his
arguments, and the issue is moot.1
[7] We acknowledge that, “although moot cases are usually dismissed, Indiana
courts have long recognized that a case may be decided on its merits under an
exception to the general rule when the case involves questions of ‘great public
interest.’” Id. (quoting In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991)). “‘Cases
in this category typically raise important policy concerns and present issues that
are likely to recur.’” Id. (quoting Mosley v. State, 908 N.E.2d 599, 603 (Ind.
2009)). This case does not present an important policy question, and we
decline to address Burgher’s arguments on their merits.
Conclusion
[8] Burgher’s appeal is moot, and we dismiss.
[9] Dismissed.
Baker, J., and Crone, J., concur.
1
To the extent Burgher argues that the State could refile the charges, we conclude that the issue is not ripe for
review. “Ripeness relates to the degree to which the defined issues in a case are based on actual facts rather
than on abstract possibilities, and are capable of being adjudicated on an adequately developed record.”
Indiana Dep't of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). The possibility that
the State could refile charges against Burgher is an abstract possibility not capable of being adjudicated at this
time.
Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1823 | September 8, 2017 Page 4 of 4