State v. Penwell , 2007 Ind. App. LEXIS 2355 ( 2007 )

OPINION

KIRSCH, Judge.

The State of Indiana appeals the trial court’s order discharging Christine Pen-well for violation of Indiana Criminal Rule 4(C) contending that the trial court erred in charging the delay resulting from a stay pending Penwell’s petition for certiorari to the Supreme Court of the United States to the State. We agree.

We reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Penwell was charged with battery and neglect on March 11, 2003. She filed a motion to suppress which the trial court denied and which this court affirmed on interlocutory appeal.¹ In May of 2005, Penwell requested a stay of proceedings from the trial court pending her petition for certiorari to the United States Supreme Court. The trial court granted the stay on May 26, 2005 pending a ruling by the Supreme Court on Penwell’s petition. The Supreme Court denied the petition on October 3, 2005. Notice of the denial was sent to Penwell’s counsel and to this court. No notice was sent to the State of Indiana or to the trial court.

The State did not learn that Penwell’s petition for certiorari had been denied until October, 2006. It immediately notified the trial court of the ruling and requested a trial setting. The trial court set the matter for trial on February 5, 2007. Pen-well filed her motion for discharge contending that she had not been brought to trial within one year as required by Ind. Crim. R. 4(C). The trial court ruled that its stay lifted automatically upon the denial of Penwell’s petition for certiorari on October 3, 2005 and that the time that had accrued thereafter was chargeable to the State. Because this period of time exceeded one year, the trial court granted Pen-well’s motion for discharge.

DISCUSSION AND DECISION

Crim. R. 4(C) provides:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.

The rule provides for the discharge of a defendant held to answer for a criminal charge for a period in aggregate of more than one year, except when the delay is attributable to acts by the defendant, to emergency, or to congestion of the court calendar. See Loyd v. State, 272 Ind. 404, 409, 398 N.E.2d 1260, 1265 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105 (1980). “The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution.” Clark v. State, 659 N.E.2d 548, 551 (Ind.1995). “[T]he provisions of Indiana Criminal Rule 4 implement the defendant’s speedy trial right” by “expressly requiring] that a defendant be discharged if not brought to trial within certain prescribed time limits.” Id. “The determination of whether a particular delay in bringing a defendant to trial violates the speedy trial guarantee largely depends on the specific circumstances of the case.” Wheeler v. State, 662 N.E.2d 192, 193 (Ind.Ct.App.1996).

When a defendant asks for a continuance, the time between the motion for a continuance and the new trial date is chargeable to the defendant. Young v. State, 482 N.E.2d 246, 249 (Ind.1985). Similarly, when a defendant seeks or acquiesces in a delay, the time limitations set by Crim. R. 4 are extended by the length of the delay. Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.1999). Moreover, “[w]hen a defendant requests an indefinite continuance and later becomes dissatisfied that his trial has not- been reset, he must take some affirmative action to notify the court that he now desires to go to trial to reinstate the running of the time period.” Wheeler, 662 N.E.2d at 194. Absent the notification, the subsequent delay is attributable to the defendant. Id.

In State v. McGuire, 754 N.E.2d 639 (Ind.Ct.App.2001), trans. denied, the defendant had moved to reschedule his trial to allow the parties to engage in plea negotiations. This court reversed the trial court’s order of discharge and held that once the defendant has requested an indefinite delay he must take some affirmative action to notify the trial court that he is dissatisfied with the delay and desires to go to trial in order to recommence the running of the Crim. R. 4(C) period. Because the defendant did not take any affirmative action to express dissatisfaction with his previous request for the delay and indicate that he desired to go to trial, the entire time period after the indefinite continuance request was granted was attributable to the defendant.

So, too, here. Penwell sought and received an indefinite delay in her trial to allow her to file a petition for certiorari with the United States Supreme Court. Having done so, it was incumbent upon her to take affirmative action to notify the trial court that she was dissatisfied with the delay and desired to go to trial. Until she did so, the time under Crim. R. 4(C) was attributable to her. The trial court erred in granting Penwell’s motion for discharge.

Reversed and remanded.

ROBB, J., concurs. BARNES, J., dissents with separate opinion.

1 . Penwell v. State, 29A02-0402-CR-147, 822 N.E.2d 664 (Ind.Ct.App., January 26, 2005), trans. denied, cert. denied 546 U.S. 888, 126 S.Ct. 217, 163 L.Ed.2d 199 (2005).