Dontrell Gilbert, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] The State charged Dontrell Gilbert with Level 6 felony residential entry and Class A misdemeanor resisting law enforcement. When the trial court set a trial date more than one year after he was charged, Gilbert moved for dismissal under Indiana Criminal Rule 4(C). The trial court denied his motion, and this interlocutory appeal now ensues. We agree with Gilbert that the State did not bring him to trial within Criminal Rule 4(C)’s one-year period. Accordingly, we reverse and remand with instructions for the trial court to dismiss this case.

Facts and Procedural History

[2] On March 8, 2024, the State charged Gilbert in Marion Superior Court with Level 6 felony residential entry (for allegedly entering Celeste Horne's home) and Class A misdemeanor resisting law enforcement. According to Indiana Criminal Rule 4(C), the State had to bring Gilbert to trial no later than March 8, 2025. But because that date was a Saturday, the deadline was extended to March 10. See Ind. Criminal Rule 4.1(A)(2). Gilbert posted bond, and an initial hearing was held on March 18.

[3] At the first pretrial conference on April 1, the trial court asked defense counsel—not the State—the status of the case. Supp. Tr. p. 4. Defense counsel explained that she was covering the case for another attorney in the Marion County Public Defender's Office, that Gilbert had his initial hearing just two weeks earlier, and that Gilbert and his assigned attorney had not yet made contact. The court asked defense counsel, “You are not requesting a trial date, correct?” Id. Defense counsel responded, “That's correct.” Id. The court asked the State what police agency was involved, and the State responded, “I haven't looked at it Judge.” Id. The court granted the State's request for a discovery protective order for any body-cam footage that existed and set a pretrial conference for May 14.

[4] At the second pretrial conference on May 14, Gilbert's assigned attorney said that he was still waiting for the body-cam footage from the State and that he had emailed about it the day before.¹ Id. at 6. The State responded that it would get the footage to him “very quickly.” Id. Defense counsel also said he was “setting up statements” with Horne. Id. The court asked defense counsel, “And do you want [Gilbert] on the trial calendar right now?” and counsel responded, “I don't, judge.” Id. The court noted that “discovery negotiations [were] ongoing” and scheduled another pretrial conference for June 18. Id.; see also Appellant's App. Vol. 2 p. 53 (“Courtroom Minutes” stating that “Discovery still needed”).

[5] Also on May 14, Gilbert filed a “Notice of Taped Statement” ordering Horne to appear at the Marion County Public Defender Agency on June 5 to give a statement. Appellant's App. Vol. 2 p. 51. Horne, however, did not appear. On June 10, Gilbert filed a second notice, this time ordering Horne to appear on July 1. Id. at 55, 59.

[6] At the third pretrial conference on June 18, the State still had not provided the body-cam footage to defense counsel despite its promise to do so “very quickly” at the prior hearing (the State eventually provided it in August). Again, the trial court asked defense counsel—not the State—“where are we with this matter?” and counsel responded:

Your Honor, ․ we've had one round of tape[d] statements. We have a second round already set. I filed the return of service as to that second round. I believe we have that on July 1st if I remember correctly. So I'm just requesting additional pretrial conference to have time to see what happens o[n] that and to file appropriate motions.

Supp. Tr. p. 8. The court noted that “Defendant [was] not requesting a trial setting right now with discovery and negotiations ongoing” and set another pretrial conference for July 16. Id.

[7] Horne did not appear on July 1, so Gilbert moved to exclude her testimony from trial. See Appellant's App. Vol. 2 pp. 63-65.

[8] At the fourth pretrial conference on July 16, the trial court again asked defense counsel the status of the case. Defense counsel said he had recently filed a motion to exclude Horne's testimony based on her failures to appear and detailed his efforts to locate her. The State said it hadn't had any contact with Horne. The court granted the motion to exclude Horne's testimony and set an attorneys-only hearing for August 6 to see if the State was going to move forward on charges.

[9] On August 2, the State filed a notice that it had provided body-cam footage from six officers to the defense. See id. at 69.

[10] At the August 6 attorneys-only hearing, the trial court again asked defense counsel the status of the case. Defense counsel explained that he had received body-cam footage from the State a few days earlier. Although he had not yet been able to review all the footage, he believed it was missing footage from Officer Nicholas Deem, who had “deployed CS spray” on Gilbert. Supp. Tr. p. 15. Defense counsel said there should also be a use-of-force report, which he normally receives from the State in discovery but hadn't received in this case. The State said it would investigate the issue. The State also said that although the trial court had ruled that Horne's testimony was excluded, it still intended to proceed “on the [misdemeanor] resisting count.” Id. at 16. The court set another pretrial conference for September 10 to discuss trial dates.

[11] At the fifth pretrial conference on September 10, the trial court again asked defense counsel the status of the case. Defense counsel explained that he still hadn't received Officer Deem's body-cam footage. The trial court set a pretrial conference for October 22, a final pretrial conference for January 29, 2025, and a jury trial for February 3.

[12] At the sixth pretrial conference on October 22, the State reported that there was no relevant footage from Officer Deem's body cam due to a malfunction. Acknowledging that a use-of-force report could contain information exculpatory to Gilbert, the court ordered the State to provide it to defense counsel “to the degree that it should be part of the normal discovery that is exchanged between parties.” Id. at 25. The court scheduled another pretrial conference for November 26.

[13] At the seventh pretrial conference on November 26, the trial court again asked defense counsel the status of the case. Defense counsel said he still hadn't received a use-of-force report from the State. The State said it had “reached out” for the report but had “not received it.” Id. at 28. Defense counsel also noted that they were approaching Criminal Rule 4(C)’s one-year deadline. The court opined that because trial was currently set for February 3, which was within the one-year period, “the CR-4 stuff ․ doesn't come into play.” Id. at 29. The court reminded the parties about the final pretrial conference on January 29.

[14] At the January 29 final pretrial conference, the State moved to continue the trial because an officer was “not available.” Id. at 37. Defense counsel objected, and the trial court granted a continuance over his objection. Defense counsel pointed out that “CR-4 would expire on March 10,” and the trial court set another pretrial conference for February 12. Id. at 40.

[15] At the February 12 pretrial conference, which was the ninth, the trial court asked the State for its position on defense counsel's “viewpoint that CR-4 runs on March [8],” and the State replied, “I don't disagree.” Id. at 50. The court responded that a March 10 trial date was “unrealistic”: “State, it[’]s unrealistic for you to expect this court to get him in if you knew the CR-4 time ran on ․ March 8th. It's just unrealistic. Now, that's assuming that the defense is correct on their numbers. Okay. What you should have done was done your own calculation.” Id. at 51. Accordingly, the court ordered the attorneys to return two days later, at which point the State should be prepared to “give me an idea if you agree that [defense counsel's] calculation is correct that ․ CR-4 runs on March 8th.” Id.

[16] At the attorneys-only hearing two days later, the State told the trial court that it was ready to proceed to trial and asked the court to “schedule the trial for March 8th.” Id. at 55. The court then addressed the time that had passed since Gilbert was charged and concluded that two time periods were excluded from Criminal Rule 4’s one-year period: (1) April 2 to May 14, 2024 (43 days) because at the first pretrial conference on April 1, the court “asked the defense are you requesting a trial date,” and the defense made “no request for a trial date, no mention of waiting for discovery” and (2) June 19 to July 16, 2024 (27 days) because at the third pretrial conference on June 18, the court asked the defense whether they were requesting a trial date but “there was no mention of any of the discovery that was outstanding and so no request for a trial date was made.” Id. at 58. The court concluded:

So by the court's calculation we have 275 days that will count against the State[ ], so that gives me a couple of months to deal with. So we're going to, by my calculation, I actually have more than that. I think I had like 90 days.

Id. at 59. Accordingly, the court set a final pretrial conference for April 16 and a jury trial for April 21. Appellant's App. Vol. 2 p. 90. Defense counsel objected to the trial date “as being beyond [the] CR-4 timeline.” Supp. Tr. p. 60.

[17] On April 10, Gilbert filed a written motion to dismiss under Criminal Rule 4(C), which the trial court denied. Gilbert requested that the order be certified for interlocutory appeal. The court granted the motion to certify and stayed the proceedings. In its order, the court asked this Court for guidance concerning its “practice”

to always ask the parties if they are requesting a trial date at each PTC. The responses given by the parties (mainly the Defense) as to their need for a trial date or their reasons why they cannot request one at that time (e.g., still waiting on specific discovery by the other party {the State}) aides the Court in scheduling its court jury docket and helps in attributing CR 4 time.

Appellant's App. Vol. 2 p. 140. Specifically, the court asked “whether the time runs against a CR 4 calculation under the circumstances where the Court specifically asked the Defense if they are request[ing] a trial date and [its] response is no ․” Id. Thereafter, we granted Gilbert's motion to accept this interlocutory appeal.

Discussion and Decision

[18] Gilbert contends that the trial court erred in denying his motion to dismiss under Criminal Rule 4(C). Specifically, he argues that the court erroneously denied his motion pursuant to “its policy that places the burden on the defendant to affirmatively request a trial date. That policy is unlawful, as this Court has already found in another case emanating from this trial court,” Heitz v. State, 263 N.E.3d 181 (Ind. Ct. App. 2025). Appellant's Br. p. 15.

[19] We generally review a trial court's ruling on a Criminal Rule 4 motion to dismiss for an abuse of discretion. Heitz, 263 N.E.3d at 189. But when, as here, the relevant facts are undisputed and the issue is a question of law, we evaluate such a motion de novo. Id.

[20] Criminal Rule 4(C) provides in relevant part:

No person can 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, whichever is later. Delays caused by a defendant, congestion of the court calendar, or an emergency are excluded from the time period. If a defendant is held beyond the time limit of this section and moves for dismissal, the criminal charge against the defendant must be dismissed.

“Criminal Rule 4 implements a criminal defendant's constitutional right to a speedy trial.” Grimes v. State, 235 N.E.3d 1224, 1230 (Ind. 2024). Criminal Rule 4(C) “set[s] a strict one-year deadline for the State to bring the defendant to trial” that will only be extended when a delay is caused “by a defendant, congestion of the court calendar, or an emergency.” Heitz, 263 N.E.3d at 186; Crim. R. 4(C). “The defendant is neither obligated to remind the court of the State's duty nor is required to take affirmative steps to ensure that [the defendant] is brought to trial within the statutory time period.” State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App. 2019), trans. denied.

[21] In June 2025, after the trial court certified its order for interlocutory appeal and on the same day that we accepted jurisdiction, this Court issued its decision in Heitz, which involves the same Marion County trial court as this case. In Heitz, we addressed the court's policy of setting trial dates:

The catalyst for this dispute is the trial court's policy for setting trial dates in criminal prosecutions. Under the policy, the trial court routinely asked defendants whether they were requesting a trial setting. If the defendants declined to request the court set the trial dates—even if the State also had not sought them—the court generally viewed the defendants’ declinations as delay caused by the defendants that could not be attributed to the State for purposes of its one-year prosecution deadline under Criminal Rule 4(C).

263 N.E.3d at 190. We found that the policy “incorrectly shifts the burden of prosecutorial timeliness from the State to the defendant.” Id. at 190-91. In reaching this conclusion, we made several observations:

• First, the trial court's policy fundamentally misapprehends Criminal Rule 4(C) by: (1) requiring the defendant to affirmatively ensure that the defendant's case is placed on the trial docket; and (2) attributing delay to the defendant for failing to do so even if the State has never requested a trial date and a trial date has never been set․ The question therefore is not whether delays should be “attributed” to the State, but whether the defendant's actions or inactions affirmatively extended the Rule 4(C) period.

• Second, the policy defies the established principle that the State—not the defendant—bears the obligation to ensure the defendant's timely prosecution․ Placing the sole burden of timely prosecution on the State without any reciprocal duty on the defendant is consistent with various due process requirements that safeguard a defendant's rights by requiring more of the State than of the defendant.

• Third, citing the defendant with delay for not requesting a trial date when discovery remains outstanding is inconsistent with the “discovery exception” applied in Criminal Rule 4(C) cases. Under this exception, a continuance sought by a defendant due to the State's failure to comply with discovery requests is not considered delay caused by the defendant for purposes of Rule 4.

Id. at 191-92. It is against this backdrop that we address Gilbert's appeal. Notably, despite Gilbert's reliance on Heitz throughout his brief, the State didn't cite the case, much less argue that it was wrongly decided or distinguishable.

[22] There are three periods at issue, all from the early months of the case: (1) April 2 to May 14, 2024 (43 days); (2) May 15 to June 18, 2024 (35 days); and (3) June 19 to July 16, 2024 (28 days). During each period, some discovery was outstanding, no trial date had been set, and Gilbert declined to request a trial date.

I. April 2-May 14

[23] The trial court found that this 43-day period was excluded from Criminal Rule 4(C)’s one-year period, and Gilbert argues this was error. The State, however, doesn't respond to Gilbert's argument in its brief. As a result, Gilbert must only establish prima facie error on appeal. See Posso v. State, 180 N.E.3d 326, 336 (Ind. Ct. App. 2021) (explaining that “[a]n appellee's failure to respond to an issue raised by an appellant is akin to failure to file a brief” and therefore the appellant “need only make a prima facie showing” of error on appeal).

[24] Gilbert has established prima facie error. At the first pretrial conference on April 1, which was held just two weeks after the initial hearing, the State had yet to provide discovery. In fact, the deputy prosecutor hadn't even looked at the case. See Supp. Tr. p. 4. The trial court, pursuant to its policy, asked defense counsel if he was requesting a trial date, and counsel said no. As this Court explained in Heitz, with which we agree, “simply not requesting a trial date cannot be construed as constituting an affirmative action that extends Rule 4(C)’s one-year period.” 263 N.E.3d at 193. Accordingly, this 43-day period counts toward the one-year period.

II. May 15-June 18

[25] The trial court found that this 35-day period counts toward Criminal Rule 4(C)’s one-year period. See Supp. Tr. p. 58. Yet the State argues on appeal that it doesn't because defense counsel was “deposing witnesses” during this time. Appellee's Br. p. 11. At the second pretrial conference on May 14, defense counsel said he was still waiting for the body-cam footage from the State and that he had emailed about it. The State responded that it would get the footage to him “very quickly” (but then didn't do so until August). Defense counsel also said he was “setting up statements” with the State's witness, Horne. The court, pursuant to its policy, asked defense counsel if he wanted a trial date, and counsel said no. The court noted that “discovery negotiations [were] ongoing” and “[d]iscovery [was] still needed” and scheduled another pretrial conference for June 18. Because the defense was still waiting for the body-cam footage, the delay was not chargeable to Gilbert. See Heitz, 263 N.E.3d at 193-94 (pointing out that certain delays were not chargeable to the defendant because they “all stem[med] from the same underlying challenge: [the defendant's] inability to properly prepare for trial due to the State's ongoing failure to provide discovery”). Accordingly, this 35-day period counts toward the one-year period.

III. June 19-July 16

[26] For the final period, the State argues that, as the trial court found, the 28 days from June 19 to July 16, 2024, should be excluded from Criminal Rule 4(C)’s one-year period. The State reasons that at the third pretrial conference on June 18, defense counsel “requested that a trial date not be set.” Appellee's Br. p. 12. At the beginning of that hearing, the trial court asked defense counsel—not the State—what the status of the case was. But the State, not Gilbert, must move the case to trial. Moreover, it is undisputed that discovery was ongoing. The State still hadn't produced the body-cam footage (the State eventually produced it in August). In addition, the State's witness for the residential-entry count, Horne, had failed to appear for a taped statement (she later failed to appear a second time, and the court ruled that her testimony was excluded). Gilbert's declination of a trial date was not a delay caused by him under Criminal Rule 4(C). See Heitz, 263 N.E.3d at 192 (“Treating Heitz's declination of trial dates as defendant-caused delay was improper because this period amounted to no more than the routine running of the Criminal Rule 4(C) clock while the State prepared its case.”). Accordingly, these 28 days count toward the one-year period.

[27] In sum, none of the delays are chargeable to Gilbert. Because the State did not bring Gilbert to trial by March 10, 2025, he is entitled to dismissal of the case under Criminal Rule 4(C).² We therefore reverse the trial court's denial of Gilbert's motion to dismiss and remand with instructions to grant the motion.

[28] Reversed and remanded.

FOOTNOTES

1.   The State provided other discovery on April 10. See Appellant's App. Vol. 2 p. 44.

2.   The State argues that even if none of the delays are chargeable to Gilbert, the 90-day extension in Criminal Rule 4(D) applies. But as Gilbert responds, the State waived this argument by raising it for the first time on appeal.

Vaidik, Judge.

Bailey, J., and Scheele, J., concur.