Menashi Cohen, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Menashi Cohen was initially indicted by a grand jury on numerous charges. This Court, in a prior appeal, dismissed the indictments against him. The State subsequently refiled the same charges by way of an information. Cohen filed a motion to dismiss the new charges. In Cohen v. State, No. 25A-CR-1914, 2026 WL 681985 (Ind. Ct. App. Mar. 11, 2026) (mem.), we affirmed the trial court's order denying Cohen's motion to dismiss, holding, in relevant part, that he had waived his right to be tried within the one-year period required by Indiana Criminal Rule 4(C) by failing to object to a trial date outside the one-year period.

[2] The only issue Cohen raises in his request for a rehearing is whether, despite his failure to object to a trial date outside the one-year period required by Rule 4(C), he was nonetheless entitled to discharge pursuant to that Rule at a later time. While Cohen did not raise this issue in his initial brief or his reply brief, we nevertheless grant the petition for rehearing in order to address this specific issue. Having considered the same, we affirm our opinion.

Facts and Procedural History

[3] Following an investigation into Cohen, his former wife, and two businesses, the State convened a grand jury, which heard Cohen's immunized testimony. On April 27, 2022, that same jury indicted Cohen on eighteen counts, and he was arrested on May 2. The trial court scheduled a trial for September 27.

[4] On July 29, Cohen filed a motion to continue the trial, which motion the court granted. On August 26, the court rescheduled the trial for May 15, 2023, with no objection from Cohen. In April 2023, Cohen again sought a continuance, citing discovery issues caused by the State. The court rescheduled the trial to October 30, 2023. On September 26, Cohen filed another motion to continue, again citing discovery issues. The court reset the trial to February 12, 2024. Then, on its own motion, the court rescheduled the trial to April 1.

[5] On February 16, Cohen moved to dismiss the charges, arguing that it was a violation of his rights to be indicted by the same grand jury that had heard his immunized testimony. The trial court denied his motion, but on appeal this Court concluded that the indictments, except the indictment for perjury, should be dismissed and reversed the trial court. Cohen v. State, 249 N.E.3d 1087, 1095 (Ind. Ct. App. 2024). On February 21, 2025, two days after this Court's opinion was certified, the State filed a motion to add by information the same counts that had been dismissed, which motion the court granted.

[6] Cohen filed another motion to dismiss the charges against him, arguing, in relevant part, that the State had failed to bring him to trial within one year, as required by Criminal Rule 4(C). The court denied that motion but certified its order for interlocutory appeal. We affirmed, finding that Cohen had waived his right to be tried within one year when he did not object to the May 15, 2023, trial date, which was outside the one-year period.

[7] In his petition for rehearing, Cohen contends that, even if he did not object to the May 15, 2023, trial date, “that does not affect his right to discharge under Rule 4(C) at a later time because the trial did not occur on May 15, 2023.” Pet. for Reh'g at 5.

Discussion and Decision

[8] Cohen contends that we wrongfully concluded that he had waived his right to have the charges against him dismissed under Criminal Rule 4(C) by failing to object to a trial date that was outside of the one-year period. The law on this issue is clear. First, it is well settled that “a defendant waives the right to be brought to trial within one year by failing to raise a timely objection if the trial court, acting during the one-year period, schedules the trial beyond the limit.” Wood v. State, 999 N.E.2d 1054, 1061 (Ind. Ct. App. 2013), trans. denied, cert. denied. Further, “the issue of waiver is distinct from the issue of which party is charged with a delay.” State v. Black, 947 N.E.2d 503, 508 (Ind. Ct. App. 2011). Thus, we consider whether a defendant waived his right to be discharged “regardless of which party was charged with the delay.” Id. In addition, “delays for emergency or court congestion do not count toward the one-year period[.]” Curtis v. State, 948 N.E.2d 1143, 1150 (Ind. 2011). And “[w]hether the acts causing the delay are meritorious or justifiable is of no moment. It is the effect of those acts that determines whether the delay is attributable to the defendant.” State ex rel. Cox v. Super. Ct. of Madison County, Div. III, 445 N.E.2d 1367, 1368 (Ind. 1983).

[9] In his petition for rehearing, Cohen appears to acknowledge that he did not object to the May 15, 2023, trial date, which was outside of the one-year limit. Nonetheless, he contends that he merely acquiesced in being tried on that date, not that he forever waived any rights under Criminal Rule 4(C). To support his assertion, Cohen relies on our Supreme Court's opinion in State ex rel. Henson v. Washington Cir. Ct., 514 N.E.2d 838 (Ind. 1987), in which our Supreme Court addressed whether a Relator had waived his right to have the charges against him dismissed for failing to object to a trial date outside of the one-year period when the rescheduled trial date did not occur.

[10] On appeal, the Court determined that the Relator was entitled to have the charges against him dismissed. In reaching that conclusion, the court held:

In failing to object to the January 5, 1987 setting of trial for July 7, there is no question that the Relator waived his claim that this date was beyond the limit which would have allowed him to seek a discharge. It was obvious to all that any further continuance beyond July 7 would also be beyond the deadline. It certainly cannot be said, however, that Relator forever waived his protections and rights under Ind.R.Cr.P. 4(C). He clearly waived any rights up to and including July 7, 1987 but he had a right to assume trial would be held on that date. The delay beyond that period was caused by the State and is clearly outside the one year limit. Relator was under no duty to take an affirmative action under these circumstances.

Id. at 840.

[11] Based on that case, Cohen argues that, even though he acquiesced to the May 15, 2023, trial date, he did not waive his right to discharge after that date and that he was still entitled to discharge when the May 15 trial did not occur. Here, the relevant delays, and their reasons are outlined in the table below:

Date Action Reason Time Attribution Time Remaining May 2, 2022 Cohen's arrest Time under Rule 365 days 4(C) starts September 27, Cohen's initial The 148 days 217 days from 2022 trial date count toward the September 27, 4(C) limit 2022 (365-148) May 15, 2023 New Trial Date Trial Delay from 217 days from 1 rescheduled on September 27, May 15, 2023 Cohen's motion 2022, to May 15, to a date outside 2023, is the one-year attributable to limit; Cohen acquiesced Cohen because he did not object October 30, 2023 New Trial Date Trial The 168-day delay 49 days from 2 rescheduled on from May 15, October 30, 2023 Cohen's motion 2023, to October (217-168) due to discovery 30, 2022, counts issues; parties toward the limit agree the time counts toward the 4(C) limit February 12, New Trial Date Trial Delay from 49 days from 2024 3 rescheduled on October 30, 2023, February 12, 2024 Cohen's motion to February 12, to a date outside 2024, is the one-year attributable to period; Cohen acquiesced Cohen because he did not object April 1, 2024 New Trial Date Trial Delay does not 49 days from April 4 rescheduled due count toward the 1, 2024 to court time period congestion April 1, 2024 Trial vacated Trial vacated The delay after 49 days from the when Cohen April 1, 2024, is date the trial court initiated the attributable to resumes interlocutory Cohen because it jurisdiction appeal was his action that caused the delay

Based on the above, the State will have 49 days left to bring Cohen to trial when the matter returns to the trial court.

[12] Having considered our prior opinion with respect to Cohen's argument regarding waiver of his rights under Rule 4(C), we reaffirm the trial court's denial of Cohen's motion under Criminal Rule 4(C).

[13] Affirmed.

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.