State of Indiana v. Luke Bryon Fahringer

FILED
Sep 12 2019, 11:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Jonathan A. Bont
Attorney General of Indiana Thomas D. Perkins
Mackenzie E. Skalski
Justin F. Roebel
Paganelli Law Group
Deputy Attorney General
Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, September 12, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CR-2985
v. Appeal from the Tippecanoe
Superior Court
Luke Bryon Fahringer, The Honorable Randy Williams,
Appellee-Defendant. Judge
Trial Court Cause No.
79D01-1610-F3-39
Riley, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2985 | September 12, 2019 Page 1 of 11
STATEMENT OF THE CASE
[1] Appellant-Plaintiff, State of Indiana (the State), brings this interlocutory appeal
of the trial court’s Suppression Order.
[2] We dismiss.
ISSUE
[3] Although the State presents us with two issues on appeal, Appellee-Defendant,
Luke Fahringer (Fahringer), filed a motion to dismiss the instant appeal in
which he presented one issue, which we find dispositive and restate as:
Whether the trial court abused its discretion when it certified its Suppression
Order for interlocutory appeal.
FACTS AND PROCEDURAL HISTORY
[4] On November 19, 2015, a detective with the Tippecanoe County Sheriff’s
Department took a statement from an alleged victim, C.B., who reported that
two men, whom she identified from a photographic array as Fahringer and
Henry Williams (Williams), had taken her against her will and forced her to
submit to a number of sexual acts. These forced sexual acts reportedly took
place at a home on Rockingham Lane in Lafayette, Indiana, and in Fahringer’s
truck. C.B. also reported that Fahringer used a cell phone to photograph C.B.’s
identification card and threatened to kill her family if she reported the offenses.
[5] Later that morning, investigators applied for a search warrant for the home on
Rockingham Lane, Fahringer’s truck, Fahringer and Williams’ cell phones, and
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to take DNA samples from Fahringer and Williams. After the search warrant
application had been submitted but before the warrant was granted, at
approximately 10:30 a.m., investigators encountered Fahringer outside of the
home on Rockingham Lane. Fahringer had his cell phone in his possession.
Fahringer was not under arrest and was free to leave; however, the investigators
informed Fahringer that they had applied for a search warrant and wished to
take custody of his cell phone. Fahringer was allowed to use his cell phone to
access telephone numbers and contact his attorney before surrendering it. The
search warrant was issued at approximately 11:50 a.m., and a search of
Fahringer’s cell phone revealed a photograph of C.B.’s identification card.
[6] On October 14, 2016, the State filed an Information, charging Fahringer with
strangulation, intimidation, kidnapping, conspiracy to commit rape, two
Counts of criminal confinement, and three Counts of rape. On July 6, 2018,
Fahringer filed a motion seeking to suppress evidence garnered following the
warrantless seizure of his cell phone, which he argued was unreasonable under
our federal and state Constitutions. 1 On July 9, 2018, after the selection of a
jury but before the jury was sworn, the trial court held a hearing on the
suppression motion. Fahringer’s trial was postponed.
1
The index to the State’s Appendix lists an “Order on Motion to Suppress Evidence” dated July 6, 2018, at
page 72, but the order entered on that day by the trial court pertained to another pending motion.
(Appellant’s App. Vol. I, p. 3; Vol. II, p. 72). The trial court did not rule on Fahringer’s Motion to Suppress
on July 6, 2018.
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[7] On July 12, 2018, the State filed its Motion for Time Extension Regarding
Interlocutory Appeal in which it averred as follows:
1. On July 10, 2018[,] the [c]ourt granted [Fahringer’s] motion
to suppress the cell phone seizure in the instant cause on the
record. 2 The State indicated it would like to seek
interlocutory appeal of that decision.
2. At that time, the [c]ourt indicated to the State it would like a
formal, written motion for interlocutory appeal be [sic] filed
by Friday, July 13, 2018.
3. Indiana Rules of Appellate Procedure Rule 14 indicates that
“[a] motion requesting certification of an interlocutory order
must be filed within thirty (30) days after the interlocutory
order is noted in the Chronological Case Summary unless the
trial court, for good cause, permits a belated motion.” The
[c]ourt’s order has not yet been attached to the Chronological
Case Summary at the time of the filing of this motion.
4. Additionally, the State has been in contact with the Indiana
Attorney General’s Office which handles appellate matters for
the State of Indiana. The Attorney General’s office would
like a chance to review the [c]ourt’s order before proceeding
in this matter.
5. For the above reasons, the State requests that it be allowed to
file its motion for interlocutory appeal later than Friday July
2
The trial court’s oral ruling was not transcribed for appeal.
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13, 2018, but in accordance with Indiana Rules of Appellate
Procedure Rule 14.
(Appellant’s App. Vol. II, p. 78). On July 16, 2018, the trial court granted the
State’s motion seeking to file its request for interlocutory certification later than
July 13, 2018. On July 26, 2018, the trial court entered its written order
granting Fahringer’s Motion to Suppress, finding that the exigent circumstances
exception to the warrant requirement did not apply.
[8] On August 21, 2018, the State filed a motion to reconsider the trial court’s grant
of Fahringer’s Motion to Suppress in which it argued new bases in opposition
to suppression, namely that the search incident to arrest and plain view
exceptions applied to the warrantless seizure of Fahringer’s cell phone. On
September 21, 2018, the trial court held a hearing on the State’s Motion to
Reconsider, and, on October 10, 2018, the trial court denied the State’s Motion
to Reconsider.
[9] On November 5, 2018, the State filed its Motion to Certify Orders for
Interlocutory Appeal in which it averred that its Motion to Certify the trial
court’s Suppression Order was
not untimely due to the State’s initial oral request regarding that
order as well as the State awaiting the [c]ourt’s ruling on the its
[sic] timely filed Motion to Reconsider. This request is filed
within thirty (30) days after the order denying the Motion to
Reconsider appeared on the Chronological Case Summary. As
such, the State submits there is good cause for granting this
motion in regards to the [c]ourt’s order granting [Fahringer’s]
Motion to Suppress.
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(Appellant’s App. Vol. II, p. 102). On November 19, 2018, the trial court
certified for interlocutory appeal its July 26, 2018, Suppression Order and its
October 10, 2018, order denying the State’s Motion to Reconsider. The trial
court found “good cause” to grant certification in that “the State initially orally
indicated it intended to request an interlocutory appeal of the [c]ourt’s oral
ruling granting [Fahringer’s] Motion to Suppress.” (Appellant’s App. Vol. II, p.
104). The trial court also found that the State had subsequently filed a timely
motion to reconsider and had filed its request for interlocutory appeal
certification within thirty days of the denial of that motion to reconsider.
[10] On December 14, 2018, the State moved this court to accept jurisdiction over
this interlocutory appeal. On January 18, 2019, the court’s motions panel
granted the State’s motion and accepted jurisdiction. On January 31, 2019, the
State filed its Notice of Appeal and thereafter filed a timely Brief of Appellant.
On May 23, 2019, Fahringer filed his Brief of Appellee and a separate motion
to dismiss in which he argued that the trial court abused its discretion in
allowing the State to belatedly seek certification of its interlocutory Suppression
Order. On May 30, 2018, the State filed its response to Fahringer’s Motion to
Dismiss. On June 21, 2019, the court’s motions panel held Fahringer’s Motion
to Dismiss in abeyance for resolution by the panel assigned to resolve the
instant appeal.
[11] The State now appeals. Additional facts will be provided if necessary.
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DISCUSSION AND DECISION
[12] The State has sought a discretionary appeal from an interlocutory suppression
order. See Ind. Appellate Rule 14(B). The initiation of such an appeal is a two-
step process, the first step of which is to obtain certification of the interlocutory
order by the trial court. App. R. 14(B)(1). A motion for certification of an
interlocutory order must be filed with the trial court within thirty days of the
entry of the order on the case’s Chronological Case Summary (CCS) “unless
the trial court, for good cause, permits a belated motion.” App. R. 14(B)(1)(a).
When a trial court grants a belated motion, it must make a finding that its
certification is based on a showing of good cause, and it must set forth its basis
for that finding. Id. We review a trial court’s finding of good cause for an
abuse of discretion. State v. Foy, 862 N.E.2d 1219, 1224 (Ind. Ct. App. 2007),
trans. denied. An abuse of discretion occurs when the trial court’s decision to
certify is clearly against the logic and effect of the facts and circumstances
before the trial court or the reasonable and probable deductions to be drawn
therefrom. Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d 515, 518 (Ind. Ct.
App. 2010).
[13] Here, the trial court entered its Suppression Order on the CCS on July 26, 2018.
The State did not file its request to certify the Suppression Order for
interlocutory appeal until November 5, 2018. The State’s request for
certification was filed more than thirty days after the entry of the interlocutory
order, and, therefore, was untimely. See App. R. 14(B)(1)(a). The trial court
explained in its order granting the State’s request for certification that good
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cause for doing so existed because the State had notified the trial court orally of
its intention to pursue an appeal after the trial court initially orally granted
Fahringer’s Motion to Suppress on July 10, 2018. It also found that the State
had pursued a motion to reconsider and filed its request for certification within
thirty days of the denial of that motion to reconsider. In his Motion to Dismiss,
Fahringer argues that the trial court abused its discretion in certifying the State’s
belated request because the State’s oral notification to the trial court of its
intention to pursue an interlocutory appeal did not constitute good cause and
the State’s Motion to Reconsider did not toll the time for the State to initiate its
appeal.
[14] We agree with Fahringer. Indiana Appellate Rule 14(B)(1)(e) provides that if a
trial court fails to rule on or set a certification motion for a hearing within thirty
days of its filing, it is deemed denied. Had the trial court considered the State’s
oral notification on July 10, 2018, of its intention to pursue an interlocutory
appeal to be a request for certification, that request would have been deemed
denied after thirty days elapsed—here, on August 9, 2018—without the trial
court ruling on the motion or setting it for a hearing. After a certification
request is deemed denied by operation of Rule 14(B)(1)(e), a trial court may not
resuscitate that request later by belatedly granting the motion. Wise v. State, 997
N.E.2d 411, 413 (Ind. Ct. App. 2013). However, even if the trial court had not
construed the State’s oral notification of its intent to seek certification as an
actual request to certify, to find such an oral notification to constitute good
cause for a belated filing is to essentially allow a litigant to ignore the Rules of
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Appellate Procedure. This is not a case where the State was unaware of the
strictures of Appellate Rule 14. The State quoted Appellate Rule 14 when it
sought and was granted an extension of time of the trial court’s truncated July
13, 2018, deadline for filing a certification request, and the State represented it
would file its certification request “in accordance with Indiana Rules of
Appellate Procedure Rule 14.” (Appellant’s App. Vol. II, p. 78).
[15] Instead of filing a motion for certification, the State chose to file a motion to
reconsider. Indiana Rule of Trial Procedure 53.4(A) provides that a motion to
reconsider “shall not delay the trial or any proceedings in the case, or extend
the time for any further required or permitted action, motion, or proceedings
under these rules.” This court has noted that, although a party may properly
file a motion with the trial court to reconsider an interlocutory ruling, the filing
of such a motion is “fraught with danger” because it does not extend the time
within which to seek an appeal of an interlocutory order. Johnson v. Estate of
Brazill, 917 N.E.2d 1235, 1241 (Ind. Ct. App. 2009). Here, the State chose to
pursue a motion to reconsider instead of immediately filing a request for
certification of the trial court’s suppression order, which it was entitled to do.
Id. However, the filing of that motion did not toll the time within which the
State was required to file a certification request, and, therefore, contrary to the
trial court’s conclusion here, it could not constitute good cause for a belated
certification request.
[16] In addition, a motion to reconsider is deemed denied if not ruled upon by the
trial court within five days. T.R. 53.4(B). The State’s Motion for
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Reconsideration, filed August 21, 2018, was deemed denied five days later by
operation of Trial Rule 53.4, and so its request for certification, filed on
November 5, 2018, was not timely as to the denial of that trial court order.
Even so, the State contends that it argued different grounds against suppression
in its Motion to Reconsider and the trial court had the authority to create a
new, appealable order by ruling on that motion. This argument is unavailing,
as the trial court did not grant the Motion to Reconsider, and, thus, its
Suppression Order did not change. See Johnson, 917 N.E.2d at 1241 (rejecting
the argument that an order denying a motion to clarify and simply affirming the
trial court’s previous ruling created a new, appealable order). We find,
therefore, that neither rationale relied upon by the trial court in granting
certification was within its discretion and that the State failed to show good
cause for the belated filing of its request for certification. See Foy, 862 N.E.2d at
1224.
[17] Although the failure to initiate a timely interlocutory appeal does not deprive
this court of jurisdiction, it results in forfeiture of the right to appeal absent
“extraordinarily compelling reasons.” Snyder v. Snyder, 62 N.E.3d 455, 458
(Ind. Ct. App. 2016). In its response to Fahringer’s Motion to Dismiss, the
State argues that “[m]uch of the delay occurred while the parties where [sic]
actively litigating the motion to reconsider including briefing and a hearing[,]”
an argument which we find to be equally as unpersuasive for showing a
compelling reason to ignore the State’s forfeiture of its appellate right as we did
for showing good cause for filing a belated certification request. (Appellee’s
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Response to Motion to Dismiss, pp. 1-2). The State also argued in its response
to the Motion to Dismiss that it, the trial court, and Fahringer, all agreed that
the State would be allowed to seek interlocutory appeal of the trial court’s
Suppression Order. Our review of the portion of the transcript cited by the
State in support of Fahringer’s consent to an interlocutory appeal does not
reveal that the parties specifically discussed the availability of interlocutory
appeal. However, even if the parties and the trial court had all agreed that the
State could pursue an interlocutory appeal after the resolution of the State’s
Motion to Reconsider, the State does not offer us any authority for its apparent
proposition that the Indiana Rules of Trial Procedure and Appellate Procedure
may be flouted by mutual agreement. We find that the State has not presented
us with any extraordinarily compelling reason to disregard its failure to pursue
timely certification of the trial court’s suppression order, and we dismiss this
appeal for procedural default.
CONCLUSION
[18] Based on the foregoing, we conclude that the trial court’s certification of its
Suppression Order for interlocutory appeal was an abuse of its discretion, and
we find no compelling reason to disregard the State’s failure to initiate a timely
interlocutory appeal.
[19] Dismissed.
[20] Vaidik, C. J. and Bradford, J. concur
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