David Edward Jackson, III v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 10 2020, 9:09 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael A. Campbell Curtis T. Hill, Jr.
Campbell Law. P.C. Attorney General of Indiana
Highland, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Edward Jackson, III, December 10, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-616
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff Murray, Judge
Trial Court Cause No.
45G02-1803-F4-9
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-616 | December 10, 2020 Page 1 of 10
[1] David Edward Jackson III appeals the trial court’s denial of his motion to
dismiss the State’s cause against him for violation of Indiana Criminal Rule
4(C). Because the year that the State had to bring Jackson to trial had not
expired, we affirm and remand.
Facts and Procedural History
[2] On March 14, 2018, the State charged Jackson with Level 4 felony child
molesting 1 and Level 5 felony sexual misconduct with a minor 2 for conduct that
allegedly occurred in January 2017. The alleged victim gave two statements to
police – the first on March 9, 2018, and the second on March 16, 2018. Police
arrested Jackson on March 16, 2018, and the trial court held his initial hearing
the same day. The trial court set an omnibus hearing for May 7, 2018.
[3] At the omnibus hearing on May 7, 2018, Jackson’s counsel withdrew and his
new counsel requested a continuance, which the trial court granted. The court
reset the omnibus hearing for July 2, 2018. On June 25, 2018, Jackson moved
to continue the July 2 omnibus hearing because “[d]epositions have been
scheduled for several witnesses on July 12, 2018 and July 19, 2018.” (App. Vol.
II at 28.) The motion stated “[t]he Defendant accepts all Criminal Rule 4 time
1
Ind. Code § 35-42-4-3(b).
2
Ind. Code § 35-42-4-9(a).
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associated with this request.” (Id.) The trial court granted Jackson’s motion
and rescheduled the omnibus hearing for August 6, 2018.
[4] On August 6, 2018, Jackson moved to continue the omnibus hearing scheduled
for that day. The trial court granted his motion and rescheduled the omnibus
hearing for August 13, 2018. The Chronological Case Summary (“CCS”)
indicates the omnibus hearing was “[c]ontinued” and rescheduled for
September 28, 2018. (Id. at 6.) On September 28, 2018, the CCS indicates the
hearing was again continued “on defs mtn.” (Id. at 7.) The trial court
rescheduled the omnibus hearing for November 2, 2018.
[5] On November 2, 2018, the trial court held the omnibus hearing and the parties
agreed to a trial date of February 4, 2019. The trial court also set a final pre-
trial hearing for January 4, 2019. On January 2, 2019, Jackson filed a motion
to continue the January 4 hearing because “[c]ounsel has a conflict and is
unavailable.” (Id. at 35.) Jackson’s motion also stated “[t]he Defendant
accepts all Criminal Rule 4 time associated with this request.” (Id.) The trial
court granted Jackson’s motion to continue and rescheduled the hearing for
January 10, 2019.
[6] At the January 10, 2019, hearing, Jackson’s counsel withdrew and new counsel
appeared. The trial court scheduled a final pretrial hearing on January 24,
2019. At the January 24 hearing, Jackson asked to continue the final pretrial
hearing to January 31, 2019, because he had been in “extensive negotiations . . .
to, uh, get this case . . . resolved.” (Supp. Tr. Vol. II at 12.) The trial court
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granted Jackson’s request and scheduled a final pretrial hearing for January 31,
2019. The trial court canceled that hearing and scheduled a hearing for
February 19, 2019. Jackson’s trial did not begin as scheduled on February 4,
2019, and the record does not indicate it was rescheduled.
[7] The trial court continued the February 19, 2019, hearing and rescheduled it for
March 19, 2019. On Jackson’s motion, the trial court continued the March 19,
2019, hearing until April 23, 2019. On April 23, 2019, the trial court held a
hearing as scheduled and set the next hearing in the case for May 31, 2019. The
trial court held hearings on May 31, 2019, and July 12, 2019.
[8] The trial court held a hearing on September 20, 2019, and scheduled the next
hearing for October 18, 2019. The CCS indicates that at the October 18, 2019,
hearing, “[o]n defs mtn, cause reset to 10-25-19 for hrg on determination of
counsel & FP.” (App. Vol. II at 10) (formatting and abbreviations in original).
On October 23, 2019, Jackson filed a motion to continue the October 25
hearing. The State objected to Jackson’s motion because “on October 22, 2019,
the State of Indiana received evidence that the Defendant left the jurisdiction to
go to New Orleans, Louisiana on October 22, 2019[,]” that “the State of
Indiana is unaware of any permission granted by this Court allowing the
Defendant to travel outside the jurisdiction[,]” and “the State of Indiana has
concerns regarding Defendant’s flight risk.” (Id. at 44.) The trial court denied
Jackson’s motion to continue and held the hearing on October 25, 2019. The
trial court noted that Jackson’s attorney would not be withdrawing and
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continued the remainder of the hearing to December 13, 2019, on Jackson’s
motion.
[9] On November 12, 2019, Jackson filed a Criminal Rule 4(C) motion to dismiss
the charges against him alleging: (1) on September 7, 2018, he became aware of
a second videotaped interview with the alleged victim that took place on March
16, 2018; (2) he did not receive a copy of the second videotaped interview with
the alleged victim until June 7, 2019; (3) the statements of the alleged victim in
the second videotaped interview “contradict[] her statement given in the first
video statement . . . [and is] exculpatory and is Brady material that should have
been disclosed to the Defendant[;]” and (4) any delay in bringing Jackson to
trial was attributable to the State because of “its failure to provide timely
discovery.” (Id. at 49-50.) The State replied, arguing Jackson “never formally
raised the discovery dispute in Court and never timely sought to have the Rule
4 time attributable to the State. The discovery question was tendered six (6)
months ago and the issue is now moot.” (Id. at 55.)
[10] The trial court held a hearing on Jackson’s motion to dismiss on December 13,
2019. The trial court denied the motion the same day and set a hearing for
January 31, 2020. On January 8, 2020, Jackson filed a motion to certify for
interlocutory appeal the trial court’s order denying Jackson’s motion to dismiss.
Due to that motion to certify, the court cancelled the hearing set for January 31.
On February 14, 2020, the trial court held a hearing on Jackson’s motion to
certify and granted Jackson’s request the same day. On April 13, 2020, our
court accepted jurisdiction of Jackson’s interlocutory appeal.
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Discussion and Decision
[11] Criminal Rule 4(C) provides, in relevant part:
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.
The State has an affirmative duty to bring a defendant to trial within one year.
Leek v. State, 878 N.E.2d 276, 277 (Ind. Ct. App. 2007). A defendant has no
obligation to remind the court of the State’s duty, nor is a defendant required to
take affirmative action to ensure he is brought to trial within that period. Id.[12] Whether delays in the scheduling of trial have occurred and to whom they are
chargeable are factual determinations for the trial court, id., and “appellate
review is for clear error.” Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013).
Thus, we may not reweigh the evidence or reassess witness credibility, and we
reverse if we are left “with a definite and firm conviction that a mistake has
been made.” Id. (quoting State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013)).
[13] If a defendant takes action that delays the proceeding, “that time is chargeable
to the defendant and extends the one-year time limit, regardless of whether a
trial date has been set at the time or not.” Cook v. State, 810 N.E.2d 1064, 1066-
67 (Ind. 2004). “When a continuance is had on motion of the defendant, or
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delay in trial is caused by his act, any time limitation contained in the rule shall
be extended by the amount of the resulting period of such delay caused
thereby.” Crim. R. 4(F). “The objective of the rule is to move cases along and
to provide the defendant with a timely trial, not to create a mechanism to avoid
trial.” Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000). Jackson argues the
multiple continuances he requested “stem from the State’s inexplicable failure
to timely provide Jackson with a copy of material evidence concerning the
alleged victim.” (Br. of Appellant at 12.) Therefore, Jackson asserts, “it would
be manifestly unjust to charge delays for continuances sought by Jackson,
against Jackson.” (Id.) 3
[14] Here, the State filed charges against Jackson on March 14, 2018, and he was
arrested on March 16, 2018, from which time the State had 365 days to bring
Jackson to trial. From March 16, 2018, to May 7, 2018, 52 days accumulated
against this time, as Jackson did not request a continuance and the court did
not enter an order indicating the delay was due to court congestion, such that
313 days remained to bring Jackson to trial. On May 7, 2018, Jackson’s
3
Jackson seems to argue that his multiple delays occurred because the State did not release a copy of the
second interview with the alleged victim for several months, which he claimed resulted in a violation of his
rights to exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963). However, Jackson concedes
in his brief that “a Brady violation did not occur” in his case. (Br. of Appellant at 8.) Further, Jackson did
not, in any of his motions to continue, indicate there was an issue with discovery, nor did he file a motion to
compel discovery. He mentioned that he had not received a copy of the second interview for the first time in
his motion to dismiss. Therefore, his argument that any of the delay caused by his motions to continue are
attributable to the State for that reason is waived. See Hilligoss v. State, 45 N.E.3d 1228, 1231 (Ind. Ct. App.
2015) (party waives an issue from appellate consideration when he raises for the first time on appeal).
Accordingly, we turn to examining the case’s timetable to ensure the State has not violated Criminal Rule
4(C).
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counsel requested to withdraw, and Jackson’s new counsel filed an appearance.
Jackson’s new counsel asked for a continuance until July 2, 2018, which was 56
days attributable to Jackson, as he requested the continuance.
[15] On Jackson’s motion, the trial court rescheduled the July 2, 2018, hearing to
August 6, 2018, adding 35 days attributable to Jackson. On August 6, Jackson
asked the hearing be rescheduled for August 13, and then again continued to
September 28, and finally, November 2, 2018, for another 88 days attributable
to Jackson. On November 2, 2018, the parties agreed to a trial date of February
4, 2019, and set a pretrial hearing for January 4, 2019. The period from
November 2, 2018, to January 2, 2019, is 61 days attributable to the State,
which left 252 days to bring Jackson to trial.
[16] On January 2, 2019, Jackson requested the hearing be rescheduled because of
his counsel’s conflict until January 10, 2019, a period of 8 days. On January
10, 2019, Jackson’s counsel withdrew and his new counsel entered an
appearance. Based thereon, Jackson filed a motion to continue and the trial
court rescheduled the hearing for January 24, 2019, for 14 days attributable to
Jackson. On January 24, 2019, the trial court held a hearing and scheduled
another hearing for January 31, 2019, which was rescheduled for February 4 on
Jackson’s motion, and then reset for February 19, 2019, on Jackson’s motion,
for a period of 26 days attributable to Jackson. The trial court continued the
hearing set for February 19, 2019, until March 19, 2019 – a period of 28 days
chargeable to the State – which left 224 days to bring Jackson to trial.
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[17] On March 19, 2019, the trial court rescheduled the hearing on Jackson’s motion
until April 23, 2019, for a period of 35 days charged to Jackson. On April 23,
2019, the trial court held the hearing as scheduled and scheduled another
hearing for May 31, 2019. The trial court held hearings as scheduled on May
31, July 12, and September 20, 2019. At the September 20, 2019, hearing, the
trial court scheduled the next hearing for October 18, 2019. The time between
April 23 and October 18, 2019, was a period of 178 days that are chargeable
against the State pursuant to Indiana Criminal Rule 4(C) and that left 46 days
for the State to bring Jackson to trial.
[18] On October 18, 2019, Jackson requested a continuance until October 25, 2019,
a period of 7 days charged against him. On October 23, 2019, Jackson
requested a continuance of the October 25 hearing, which the trial court denied.
At the October 25, 2019, hearing, Jackson’s attorney indicated he would not be
withdrawing, but requested a continuance of other matters until December 13,
2019. On November 12, 2019, Jackson filed a motion to dismiss the charges
against him based on a violation of Indiana Criminal Rule 4(C). The time
between October 25 and November 12 was 18 days charged against Jackson.
[19] Therefore, when Jackson filed his motion to dismiss, 606 days had passed since
he was arrested on March 16, 2018. Of those days, 288 occurred because
Jackson requested continuances. Under the 365-day time limit set forth by
Indiana Criminal Rule 4(C), the State had used 319 of 365 days. As the State
still had 46 days to bring Jackson to trial, the trial court did not err when it
denied Jackson’s motion to dismiss pursuant to Indiana Criminal Rule 4(C).
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See State v. Lindauer, 105 N.E.3d 211, 215-6 (Ind. Ct. App. 2018) (court properly
denied defendant’s motion for dismissal because continuances attributable to
defendant did not count toward Criminal Rule 4(C) deadline), trans. denied.
Conclusion
[20] Because Jackson was responsible for a significant portion of the 606 days that
elapsed between the date he was arrested and the date he filed his motion to
dismiss, the 365 days available to bring Jackson to trial under Criminal Rule
4(C) had not elapsed. Therefore, the trial court did not abuse its discretion
when it denied Jackson’s motion to dismiss. Accordingly, we affirm and
remand for proceedings consistent with this opinion.
[21] Affirmed and remanded.
Riley, J., and Altice, J., concur.
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