Kelvin Fuller v. State of Indiana ( 2013 )


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  •                                                                       Sep 10 2013, 5:36 am
    FOR PUBLICATION
    ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:
    P. JEFFREY SCHLESINGER                       GREGORY F. ZOELLER
    Crown Point, Indiana                         Attorney General of Indiana
    HENRY A. FLORES, JR.
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    KELVIN FULLER,                               )
    )
    Appellant-Defendant,                    )
    )
    vs.                              )    No. 45A03-1212-CR-520
    )
    STATE OF INDIANA,                            )
    )
    Appellee-Plaintiff.                     )
    APPEAL FROM THE LAKE SUPERIOR COURT
    The Honorable Salvador Vasquez, Judge
    Cause No. 45G01-0708-FB-82
    September 10, 2013
    OPINION - FOR PUBLICATION
    RILEY, Judge
    STATEMENT OF THE CASE
    Appellant-Defendant, Kelvin Fuller (Fuller), appeals the trial court’s denial of his
    motion to discharge pursuant to Indiana Rule of Criminal Procedure 4(C).
    We affirm.
    ISSUE
    Fuller raises one issue which we restate as: Whether the trial court abused its
    discretion by denying his motion to discharge in accordance with Ind. Crim. Rule 4(C).
    FACTS AND PROCEDURAL HISTORY
    On August 3, 2007, the State filed an Information in Lake County superior court,
    charging Fuller with Count I, robbery, a Class B felony, Ind. Code § 35-42-5-1; Count II,
    confinement, a Class C felony, I.C. § 35-42-3-3; Count III, strangulation, a Class D
    felony, I.C. § 35-42-2-9; and Count IV, intimidation, a Class D felony, I.C. § 35-45-2-1.
    At the time the State filed the Information, Fuller was at large and the State requested that
    a warrant be issued for his arrest. On December 15, 2008, Fuller was convicted of bank
    robbery in Wyoming. Around January 9, 2009, Lake County, Indiana was notified that
    Fuller was incarcerated in Laramie County, Wyoming. As a result, on January 13, 2009,
    Lake County prosecutors sought his extradition by initiating interstate rendition
    proceedings. However, instead of being extradited to Lake County, Fuller was convicted
    of aggravated assault in Laramie County, Wyoming and sentenced to “not less than nine
    (9) years and not more than ten (10) years” in the Wyoming Department of Correction.
    (Appellant’s App. p. 39). Thereafter, On May 15, 2009, Fuller was extradited to Indiana.
    2
    On June 17, 2009, Doug Barnes, the Unit Team Case Manager of the Hamilton County
    Sheriff’s Department, read Fuller the Lake County warrant while also serving him with a
    Hamilton County warrant. On April 30, 2010, Fuller was convicted of escape in LaPorte
    County, Indiana and sentenced to four years in the Indiana Department of Correction.
    Then, on September 21, 2009, February 2011, and May 2011, Fuller attended hearings in
    Hamilton County on unrelated charges and was sentenced to four years executed. On
    July 29, 2010, Fuller also appeared in Madison County court on unrelated charges.
    On June 13, 2012, Fuller filed a motion to discharge the instant charges, which
    originated in Lake County, pursuant to Crim. R. 4(C). On July 6, 2012, the State filed its
    motion in opposition and the trial court denied Fuller’s motion the same day. On August
    15, 2012, an initial hearing was held where Fuller was served with the arrest warrant. On
    October 11, 2012, Fuller filed a motion to reconsider the trial court’s denial of his request
    for discharge. On October 17, 2012, after a hearing, the trial court denied the motion to
    reconsider and certified its ruling for interlocutory appeal. On February 4, 2013, we
    accepted jurisdiction over the interlocutory appeal.
    Additional facts will be provided as necessary.
    DISCUSSION AND DECISION
    Fuller argues that the trial court abused its discretion by denying his motion to
    discharge pursuant to Crim. R. 4(C), which 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
    3
    was not sufficient time to try him during such period because of congestion
    of the court calendar. . . . Any defendant so held shall, on motion, be
    discharged.
    Criminal Rule 4 implements the defendant’s constitutional right to a speedy trial. State v.
    Jackson, 
    857 N.E.2d 378
    , 380 (Ind. Ct. App. 2006). Under this rule, the State has an
    affirmative duty to bring the defendant to trial within one year of being charged or
    arrested, subject to the listed exceptions. Cook v. State, 
    810 N.E.2d 1064
    , 1065 (Ind.
    2004). The defendant has no obligation to remind the court of the State’s duty, nor is he
    required to take any affirmative action to see that he is brought to trial within the
    statutory time period. State v. Smith, 
    495 N.E.2d 539
    , 541 (Ind. Ct. App. 1986). When a
    defendant makes a motion for discharge pursuant to Criminal Rule 4, the burden is on the
    defendant to show that he has not been timely brought to trial and that the defendant is
    not responsible for the delay. Martin v. State, 
    419 N.E.2d 256
    , 259 (Ind. Ct. App. 1981).
    Focusing on the start date of the one-year time period under Crim. R. 4(C), Fuller
    argues that the “commencement of extradition proceedings constitutes an arrest in that it
    is an order for a defendant’s return by the charging court.” (Appellant’s Br. p. 5). As
    such, he maintains that he was in the “custody of the Indiana Department of Correction
    for more than three years before he filed his [m]otion to [d]ismiss and the State took any
    action on the case.” (Appellant’s Br. p. 5).
    In Sweeney v. State, 
    704 N.E.2d 86
    , 100 (Ind. 1998), our supreme court held that
    the Crim R. 4(C) clock begins when the defendant has been brought within Indiana’s
    jurisdiction and control: “[A] defendant being brought to Indiana is equivalent to an
    ‘arrest’ and thus the one[-]year period for determining a violation of Crim. R. 4(C)
    4
    commence[s][.]” Likewise, Indiana has long held that Crim. R. 4 does not apply when a
    person is incarcerated in a foreign jurisdiction. Fisher v. State, 
    933 N.E.2d 526
    , 529 (Ind.
    Ct. App. 2010). Accordingly, Fuller’s Crim. R. 4(C) clock commenced on May 15, 2009
    when he returned to Indiana’s jurisdiction.
    However, attempting to toll the one-year statutory term, the State now contends
    that “[b]ecause the Lake County Prosecutor’s Office and the Lake County courts did not
    have actual notice of [Fuller’s] whereabouts until approximately June 13, 2012, when he
    filed his motion to dismiss, the trial court properly denied [Fuller’s] motion for
    discharge.” (Appellee’s Br. p. 8).
    In support of its argument, the State relies on Werner v. State, 
    818 N.E.2d 26
    (Ind.
    Ct. App. 2005), trans. denied. Werner was arrested in Randolph County and charged in
    September 2000. 
    Id. at 27.
    He appeared at his initial hearing where he requested a
    continuance.   
    Id. at 28.
      The trial court granted the continuance and subsequently
    rescheduled several more times. 
    Id. In November
    2000, Werner was arrested in Wayne
    County, and someone called the Randolph County clerk’s office to inform the office of
    Werner’s incarceration. 
    Id. When Werner
    failed to appear for a hearing in January 2001,
    the Randolph County court rescheduled again. 
    Id. Werner’s bond
    agent later called the
    bailiff and informed him that Werner was incarcerated in Wayne County. 
    Id. After further
    delays, Werner filed a motion for discharge pursuant to Crim. R. 4(C) in March
    2003. 
    Id. The trial
    court denied the motion. 
    Id. On appeal,
    the State argued that Werner
    should be charged with 142 days—the time that passed between January 2001 when he
    failed to appear for his initial hearing as he was incarcerated in Wayne County and the
    5
    date when he was released from Wayne County jail—because Werner had failed to
    provide written notice that he was incarcerated in Wayne County. 
    Id. at 30.
    Noting that Werner’s case in Randolph County was midstream when he was
    incarcerated in Wayne County, i.e, Werner had been arrested, charged and appeared in
    Randolph County by the time he was arrested in Wayne County, we held that Werner was
    required to provide formal written notice of his incarceration to the trial court and the
    State to avoid tolling of the Crim. R. 4(C) clock. 
    Id. at 31.
    Otherwise, the Werner court
    reasoned, there is simply no way to determine whether sufficient notice was given to the
    trial court to notify it of the defendant’s whereabouts. 
    Id. “Trial courts
    have substantial
    case loads and complicated dockets to manage, and if we did not require that litigants
    communicate with each other and the court formally and in writing, the system would
    soon devolve into chaos.” 
    Id. As such,
    the Werner court concluded that the Rule 4(C)
    clock tolled for 142 days. 
    Id. at 32.
    We find Werner to be inapposite as Fuller’s Lake
    County case was not midstream when he was extradited to Indiana. In fact, Fuller had
    not yet even appeared in the trial court.
    More on point is Fueston v. State, 
    953 N.E.2d 545
    (Ind. Ct. App. 2011). Fueston
    was arrested in Jay County and charged with theft. 
    Id. at 546.
    While out on bond, he
    failed to appear at his pre-trial conference and he was later arrested in Delaware County
    on an unrelated charge. 
    Id. Fueston remained
    incarcerated in Delaware County and no
    action was taken in Jay County until Fueston, acting pro se, filed a motion requesting
    final disposition of charges/detainers in his Jay County case. 
    Id. Fueston was
    appointed
    6
    counsel, who filed a motion for discharge under Crim. R. 4(C), which was denied by the
    trial court. 
    Id. Presenting evidence
    indicating that there had been a facsimile communication
    between the Jay County and Delaware County jails, Feuston argued, among others, that
    Jay County was aware of his whereabouts and could have brought him to trial within the
    one-year period. 
    Id. at 551.
    We disagreed and held that “the knowledge of a police or
    correctional officer should not be imputed to the trial court or prosecutor in these
    circumstances.” 
    Id. We concluded
    that the purpose of Crim. R. 4(C) is to promote early
    trials and not to discharge defendants. 
    Id. Unnecessary delays
    will not be deterred by
    granting discharges in cases where the trial court and prosecutor did not have actual
    knowledge of the defendant’s whereabouts. 
    Id. “This is
    true regardless of whether some
    other agent of the State has this knowledge.” 
    Id. In a
    separate concurrence in result, Chief Judge Robb disputed the soundness of
    the actual knowledge requirement by the trial court and prosecutor and instead cautioned
    that the issue of notification is extremely fact sensitive. 
    Id. at 553.
    She noted that if there
    is indisputable evidence that officials at the Jay County jail were aware Feuston was
    incarcerated in the Delaware County jail during the pendency of his Jay County case and
    indisputable evidence of when they became aware of Feuston’s incarceration, the trial
    court and prosecutor would be sufficiently notified of the defendant’s whereabouts to
    commence the Rule 4(C) clock as of that date. 
    Id. Similarly, here,
    Fuller is pointing to what purports to be a facsimile
    communication sent by the Lake County “Sheriff Warrants” to “Doug Barnes Del” on
    7
    May 22, 2009. (Appellant’s App. p. 81). The facsimile details the Lake County cause
    number, charges and the fact that a warrant was issued for Fuller’s arrest. Although the
    remark section of the facsimile indicates that Fuller will be “going to Madison Co, IN
    first” after being extradited to Indiana, there is no notation indicating when this would
    occur. (Appellant’s App. p. 81). The communication fails to indicate who sent it, at
    whose direction, and for what reason. Although the evidence reflects that Doug Barnes,
    the Unit Team Case Manager of the Hamilton County’s Sheriff’s Department read Fuller
    the Lake County warrant while also serving him with a Hamilton County warrant, this
    fact does not reflect on the knowledge of the Lake County prosecutor or trial court.
    It is Fuller’s burden on appeal to give us a record that supports his claims. See
    Delao v. State, 
    940 N.E.2d 849
    , 852 (Ind. Ct. App. 2011). At best, Fuller presented us
    with some evidence suggesting that Lake County sheriff’s department might have been
    aware of Fuller’s incarceration in Indiana. However, because the record does not show
    that the Lake County prosecutor or trial court were actually aware of Fuller’s return to
    Indiana’s jurisdiction prior to Fuller’s filing of his motion to discharge on June 13, 2012,
    the Crim. R. 4 (C) clock did not start until that date. Therefore, the trial court properly
    denied Fuller’s motion.
    CONCLUSION
    Based on the foregoing, we conclude that the trial court properly denied Fuller’s
    motion to discharge in accordance with Crim. R. 4(C).
    Affirmed.
    KIRSCH, J. and ROBB, C. J. concur
    8
    

Document Info

Docket Number: 45A03-1212-CR-520

Judges: Riley, Kirsch, Robb

Filed Date: 9/10/2013

Precedential Status: Precedential

Modified Date: 10/19/2024