Francis E. Fisher, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Francis Fisher appeals his conviction for Level 6 felony operating a vehicle while intoxicated. He contends the trial court violated his right to a speedy trial by conducting his trial more than two years after his initial hearing. This claim largely hinges on whether the trial court's decision to reschedule Fisher's trial due to a mandatory judicial conference qualified as an emergency that extended Criminal Rule 4(C)’s one-year deadline. We find that it did and that Fisher was timely tried under Criminal Rule 4(C). We therefore affirm.

Facts

[2] On September 16, 2021, the State charged Fisher with operating a vehicle while intoxicated and operating a vehicle with a blood-alcohol content of .15 or more. Both charges were enhanced to Level 6 felonies due to Fisher's prior convictions for similar offenses. At his initial hearing on September 20, 2021, Fisher requested a speedy trial. The trial court set trial for January 25, 2022.

[3] On January 7, 2022, Fisher moved to continue the January 25th trial. The trial court granted the motion and rescheduled trial for September 8, 2022. On August 12, 2022, the trial court, on its own motion, vacated the rescheduled trial date due to a conflict with a judicial conference the trial judge was required to attend. On September 13, 2022, Fisher expressed dissatisfaction with his current appointed counsel and indicated an interest in representing himself, possibly with new standby counsel. The trial court appointed replacement counsel and reset trial for February 14, 2022, so that the new counsel would have time to prepare.

[4] On January 30, 2023, the State moved for appointment of a special prosecutor due to Fisher's prior counsel joining the prosecutor's office staff. The trial court granted the motion the next day, set a pretrial hearing for March 30, 2023, and ultimately reset trial for July 11, 2023. At a final pretrial hearing on June 24, 2023, the trial court granted defense counsel's oral motion to withdraw, which was based on a breakdown in attorney-client communications. Fisher requested new counsel and a continuance of the July 11th trial. The trial court granted both requests, set a pretrial hearing for July 20, 2023, and later set trial for August 23, 2023.

[5] On August 1, 2023, defense counsel moved to determine the scope of his representation of Fisher after meeting with Fisher. Two days later, Fisher moved to represent himself and for dismissal based on his treatment in jail after his arrest. In this motion, Fisher also noted that the State had failed to bring him to trial for nearly two years. Fisher failed to appear at the hearing on this motion on August 10, 2023, so the hearing was rescheduled to August 16, 2023. At that hearing, Fisher again moved to proceed pro se and asked that defense counsel serve as standby counsel. Fisher also orally requested a continuance of the August 23rd trial because he had not received the State's final witness and exhibit list and needed more time to prepare for trial. The court granted Fisher's motion to proceed pro se and denied his motion for continuance.

[6] In motions filed August 17 and 22, 2023, Fisher twice more moved to dismiss the charges based on the State's acts or omissions in the case. This prompted the trial court to conduct a telephone pretrial conference on August 22, 2023. During this telephonic conference, Fisher told the court that he needed at least 60 more days to prepare for trial. The court, reconsidering its denial of Fisher's oral motion to continue made at the August 16th hearing, continued the trial to November 14, 2023, to afford Fisher his requested preparation time. In an order dated August 22, 2023, but not filed until September 19, 2023, the court detailed the August 22nd pretrial conference, including its reconsideration of Fisher's August 16th request for a continuance.

[7] On September 25, 2023, Fisher again moved to dismiss the charges. Three days later, the trial court conducted a hearing to address Fisher's multiple pending motions to dismiss. Over four days in early October 2023, Fisher filed six more pro se motions, all of which were denied on November 8, 2023. Fisher's jury trial began November 14, 2023, ending with verdicts of guilty as charged. Although the trial court initially entered judgments of conviction for both operating a vehicle while intoxicated and operating a vehicle with a blood-alcohol content of .15 or more, the court vacated the latter on double jeopardy grounds. For the remaining conviction, the court sentenced Fisher to 545 days imprisonment, to be executed on home detention.

[8] Fisher filed a motion to correct error, which the trial court denied. Six months later, Fisher, now represented by counsel, requested permission to file a belated appeal. The trial court granted the motion, leading to this appeal.

Discussion and Decision

[9] Fisher claims the trial court erroneously denied his motion to dismiss the charges against him, claiming he was entitled to discharge due to the State's failure to bring him to trial within one year as required by Indiana Criminal Rule 4(C). As a preliminary matter, we note Fisher's incomplete appendix lacks the very motion to dismiss upon which he bases this appeal. See Ind. Appellate Rule 50(B)(1) (“The appellant's Appendix in a Criminal Appeal shall contain ․ copies of the following documents, if they exist: (a) the Clerk's Record, including the chronological case summary”); Ind. Appellate Rule 2(E) (“The Clerk's Record ․ shall consist of ․ all papers, pleadings, documents, ․ and other materials filed in the trial court”).¹ The State also fails to provide that motion. See App. R. 50(B)(2) (specifying that if filed, the appellee's appendix in a criminal appeal “may contain additional materials that are relevant to either issues raised on appeal or on cross-appeal”).

[10] Criminal Rule 4(C) “is not a self-executing rule.” Martin v. State, 419 N.E.2d 256, 259 (Ind. Ct. App. 1981). A motion for discharge is a prerequisite to Criminal Rule 4 relief under the prior version of Criminal Rule 4(C) in effect at the time of the underlying proceedings. See Grimes v. State, 235 N.E.3d 1224, 1231 (Ind. 2024) (finding defendant must file motion for discharge before Criminal Rule 4 relief was available).² The motion for discharge “must, by necessity, be filed at a time ․ after the one year has run and the defendant has still not been brought to trial.” Martin, 419 N.E.2d at 259. Consequently, a motion for discharge may not be made for the first time on appeal. Sholar v. State, 626 N.E.2d 547, 549 (Ind. Ct. App. 1993).

[11] The pro se motion that Fisher treats as his motion for discharge under Criminal Rule 4(C) does not mention this rule or his right to trial within a year. Instead, this motion simply alleges that the charges against Fisher should be dismissed because “this case has lingered on the Superior Court docket since 6-26-2021 without resolution.” “Motion for Dismissal” 2 (August 3, 2023). Although such a motion could be viewed as inadequate to meet the requirements of Criminal Rule 4(C), the trial court seemingly accepted it as a motion under that rule. For purposes of this opinion, we will do the same.

[12] “We generally review a trial court's ruling on a motion for discharge for an abuse of discretion.” Battering v. State, 150 N.E.3d 597, 600 (Ind. 2020). But when, as here, “the relevant facts are undisputed and the issue is a question of law, we evaluate a Criminal Rule 4 motion for discharge de novo.” Id. As the record shows that the Criminal Rule 4(C) period had not expired before Fisher was tried, we affirm.

I. Criminal Rule 4(C)

[13] The version of Criminal Rule 4(C) in effect during the lower court proceedings specified:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate exceeding one year from the date the criminal charge against such defendant is filed, or from the date of the arrest on such charge, which 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 ․ Any defendant so held shall, on motion, be discharged.

Crim. R. 4(C) (2021).

[14] When delays are caused by the defendant, court congestion, or emergency, “the time limitation [in Criminal Rule 4(C)] is extended by the amount of time resulting from such delay(s).” Hobeck v. State, 225 N.E.3d 208, 212 (Ind. Ct. App. 2023). Whether “a particular delay in bringing a defendant to trial violates the speedy trial guarantee largely depends on the specific circumstances of the case.” Payton v. State, 905 N.E.2d 508, 511 (Ind. Ct. App. 2009) (quotations omitted). Fisher bears the burden “to show that he has not been timely brought to trial and that [he] is not responsible for the delay.” Fuller v. State, 995 N.E.2d 662, 664 (Ind. Ct. App. 2013).

II. Fisher's Contentions

[15] Fisher argues that he is entitled to discharge because his jury trial began on November 14, 2023, 789 days after he was charged. That was 424 days beyond the one-year Criminal Rule 4(C) period that began on September 20, 2021, and would have expired on September 19, 2022, absent any extensions attributable to Fisher, court congestion, or emergency.

[16] Fisher acknowledges that he is responsible for 226 days of delay (January 25, 2022, to September 8, 2022). This 226-day delay extended the Criminal Rule 4(C) deadline to May 3, 2022, which was still 198 days before the date that Fisher's trial actually began. This means Fisher was not entitled to discharge if at least 198 more days of delay occurred before the Criminal Rule 4(C) period expired and those delays were attributable to him, court congestion, or emergency.

[17] The parties debate whether various periods of delays should be viewed as part of the routine running of the Criminal Rule 4(C) clock or whether these delays extended the one-year period for bringing Fisher to trial. We address only two of these periods, given that they are dispositive of Fisher's claim.

A. September 8, 2022 – February 14, 2023 (159 days)

[18] The trial court sua sponte rescheduled trial from September 8, 2022, to February 14, 2023, because of a mandatory judicial conference. See Ind. Code §§ 33-38-9-5(a), -7 (requiring state trial court judges to attend Judicial Conference meetings). Fisher does not dispute the judge's need to attend the conference or that the conference conflicted with the trial date. He simply claims that the conflict does not qualify as either court congestion or emergency and that the Criminal Rule 4(C) clock continued to run during this period.

[19] When the trial court's finding of an emergency is based on undisputed facts, as here, our standard of review—as with all questions of law—is de novo. Austin, 997 N.E.2d 1027, 1039 (Ind. 2013). The ultimate reasonableness of the trial court's finding of congestion or emergency depends “very much upon the facts and circumstances of the particular case.” See id.

[20] This Court has previously upheld a trial court's finding that trial delay attributable to the judge's attendance at a mandatory judicial conference extended the Criminal Rule 4 period. In Sholar v. State, 626 N.E.2d 547, 548-49 (Ind. Ct. App. 1993), the trial court, on its own motion, continued the defendant's trial beyond the 70-day deadline specified in Criminal Rule 4(B) because a mandatory judicial conference—the same conference that prompted the delay in the present case—conflicted with the defendant's scheduled trial. Although Sholar disputed the conflict and alleged he was entitled to discharge under Criminal Rule 4, this Court found that “the trial court did not abuse its discretion by continuing Sholar's trial.” Id. at 549. In effect, the Court found the Criminal Rule 4 period was extended by the delay attributable to the judge's attendance at the judicial conference.

[21] Indiana appellate courts also have found the Criminal Rule 4(C) period can be extended by delays caused by the absence of individuals critical to trial. See, e.g., Woodson v. State, 466 N.E.2d 432, 434 (Ind. 1984) (witness hospitalized); Sims v. State, 368 N.E.2d 1352, 1354-55 (Ind. 1977) (witness on long-planned European vacation); Wooley v. State, 716 N.E.2d 919, 925 (Ind. 1999) (witness out of state); Otte v. State, 967 N.E.2d 540, 546 (Ind. Ct. App. 2012) (two witnesses on vacation out of state); Wilhelmus v. State, 824 N.E.2d 405, 413 (Ind. Ct. App. 2005) (witnesses unavailable in short order due to one testifying in another case and the other out of state); Ford v. State, 706 N.E.2d 265, 267 (Ind. Ct. App. 1999) (key witness undergoing surgery). If the absence of an essential witness is considered an emergency extending the Criminal Rule 4(C) period, the absence of the trial judge logically must as well. Although trial conceivably might proceed without an essential witness, no trial can be conducted without a judge.

[22] Given our precedent, we conclude that the Criminal Rule 4(C) period for bringing Fisher to trial was extended by the 159-day delay caused by the trial judge's mandatory attendance at a judicial conference. This moves the Criminal Rule 4(C) deadline from May 3, 2023, to October 9, 2023. As a result, Fisher's motion to dismiss filed August 3, 2023, was premature. See Ferman v. State, 232 N.E.3d 133, 140 (Ind. Ct. App. 2024) (finding defendant's motion for discharge under Criminal Rule 4(C) was premature and stopped the 4(C) clock when the motion was filed before expiration of the Criminal Rule 4(C) period). When Fisher's motion was filed, the State still had more than two months within which it could try him without violating Criminal Rule 4(C).

[23] Fisher does not appear to allege that any of his numerous motions to dismiss filed after August 3, 2023, were Criminal Rule 4(C) motions. But even if they were, he would not be entitled to relief, given the further delay we next address.

B. July 11, 2023, to August 23, 2023 (43 days)

[24] On June 14, 2023, Fisher's counsel moved to withdraw due to a breakdown in communication with him. Fisher then sought appointment of replacement counsel and requested a continuance of the trial scheduled for July 11, 2023. The trial court granted the continuance and rescheduled trial for August 23, 2023.

[25] Fisher acknowledged during a pretrial hearing that this 43-day delay was attributable to him, and he does not contend otherwise on appeal. He merely argues—incorrectly—that the Criminal Rule 4(C) period expired before this delay occurred. The 43-day delay caused by Fisher's requested continuance extended the Criminal Rule 4(C) period from October 9, 2023, to November 21, 2023. As Fisher's trial began November 14, 2023, the State complied with Criminal Rule 4(C).

[26] Because Fisher has failed to show a violation of Criminal Rule 4(C) and raises no other issues on appeal, we affirm the trial court's judgment.

FOOTNOTES

1.   Fisher also includes in his appendix extensive portions of the transcript in violation of Indiana Appellate Rule 50(F), which explicitly prohibits the inclusion of any portion of the transcript in the appendix.

2.   Criminal Rule 4(C) was amended effective January 1, 2024. The amended version of the rule replaces “discharge” with “dismiss,” but our Supreme Court in Grimes appeared to treat these two words as having no substantive difference for purposes of Criminal Rule 4 analysis. 235 N.E.3d at 1230.

Weissmann, Judge.

Judges May and Scheele concur. May, J., and Scheele, J., concur.