State of Indiana, Appellant-Plaintiff v. Joseph Cree, Appellee-Defendant (2026)

MEMORANDUM DECISION

Case Summary

[1] On February 27, 2025, the State charged Joseph Cree with Level 6 felony auto theft in Carroll County, after which he requested a speedy trial while incarcerated for unrelated charges in Cass County. Besides for a brief period immediately following his arrest, Cree had never been incarcerated in Carroll County for the auto-theft charge. After initially finding his speedy trial request to be unripe, the trial court ultimately granted Cree's motion to dismiss. The State argues that the trial court erred in applying Criminal Rule 4.2 and discharging Cree. Because we agree, we reverse and remand for further proceedings.

Facts and Procedural History

[2] On February 25, 2025, the Carroll County Sheriff's Department arrested Cree, after which the State charged him with Level 6 felony auto theft. Cree was released on February 28 on his promise to appear.¹ On March 5, 2025, a warrant was issued for Cree's arrest after he had failed to appear for his initial hearing. On March 16, 2025, in Cass County, Cree was arrested and subsequently charged with Level 6 felony methamphetamine possession and Class A misdemeanor paraphernalia possession. As it happened, the Carroll County arrest warrant was never served, and aside from his initial, brief incarceration, Cree has never been incarcerated for the Carroll County auto-theft charge.

[3] From the Cass County Jail, Cree filed a pro se motion for a “Fast and Speedy Trial” with the trial court on May 12, 2025. Appellant's App. Vol. II p. 18. In it, he states:

Comes now above mentioned defendant moves this court to invoke Criminal Rule 4(C) in above cause.

1. Defendant has a hold on him for above cause and is asking to file for a fast and speedy trial to resolve said cause.

2. Defendant also denys [(sic)] guilt on said cause.

3. Defendant argues court fails to have jurisdiction to file said charge.

Appellant's App. Vol. II. p. 18. On May 22, 2025, the trial court determined that Cree's “Motion for a Speedy Trial is not ripe as he failed to appear for the initial hearing[.] A warrant having been issued based on his failure to appear and time being tolled due to the same, the Court takes no further action at this time.” Appellant's App. Vol. II pp. 79–80.

[4] On July 28, 2025, Cree filed a letter with the trial court advising that he had been sentenced in Cass County and seeking transport to Carroll County “to go in front of the Magistrate.” Appellant's App. Vol. II p. 20. On August 6, 2025, Cree appeared in Carroll County at an initial hearing, requested and was appointed counsel, and was released on his promise to appear. The trial court also recalled the arrest warrant that had previously been issued. When the trial court set a trial date for November 3, 2025, Cree objected, stating that “that trial date would be set beyond the 70-day fast and speedy request.” Tr. Vol. II p. 6. The trial court advised Cree to discuss the matter with his newly appointed counsel. This same day, the trial court received another letter from Cree, in which he renewed his desire for a speedy trial and to “initiate proceedings in above mentioned cause.” Appellant's App. Vol. II p. 26.

[5] Cree failed to appear at a September 30, 2025 pretrial conference because he was incarcerated in the Department of Correction, so the trial court continued his trial date until June of 2026, when he was expected to have been released. In October and December of 2025, Cree submitted written letters to the trial court seeking to terminate his court-appointed counsel and represent himself. In March of 2026, Cree filed three separate pro se motions with the trial court, styled as “Defendant's Objection to State/Courts Denial of his Fast and Speedy Trial,” “Defendant's Objection to State/Courts Trial Setting outside Criminal Rule 4(C),” and “Motion to Dismiss pursuant to Criminal Rule 2.7(A), Criminal Rule 4(B), (C), 4.1(B), (C), 35-34-1-4(8), (9).” Appellant's App. Vol. II pp. 52, 53, 54.

[6] The trial court held a hearing on Cree's motions on April 2, 2026, and allowed the State an opportunity to file a response. On April 10, 2026, the trial court granted Cree's motion to dismiss the Level 6 felony auto-theft charge.

Discussion and Decision

[7] At the outset, we note that Cree did not file an appellee's brief. “In such a case, we need not undertake the burden of developing arguments for the appellees.” Dreyer & Reinbold, Inc. v. Leib, 811 N.E.2d 858, 860 (Ind. Ct. App. 2004).

[8] The State argues that the trial court erred in granting Cree's motion to dismiss pursuant to Criminal Rule 4(B). Specifically, the State contends that the trial court erred because Criminal Rule 4(B) was not yet available to Cree because he was not incarcerated on the charge pending in Carroll County. “In reviewing Criminal Rule 4 claims, we review questions of law de novo, and we review factual findings under the clearly erroneous standard.” State v. Harper, 135 N.E.3d 962, 972 (Ind. Ct. App. 2019), trans. denied. When we consider a question of law based on uncontested facts, our standard of review is de novo. Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013).

[9] Criminal Rule 4(B) aims “to provide functionality to a criminal defendant's fundamental and constitutionally protected right to a speedy trial.” Id. at 1037. The rule states, in part, that “[a] defendant held in jail on a pending charge may move for an early trial. If such motion is filed, a trial must be commenced no later than seventy calendar days from the date of such motion[.]” Ind. Crim. R. 4(B). “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.” Id. The rule aims “to promote early trials, not to discharge defendants.” Finnegan v. State, 201 N.E.3d 1186, 1192 (Ind. Ct. App. 2023) (citation omitted), trans. denied.

[10] The trial court was correct in its initial determination that Cree's May 2025 motion for a speedy trial was unripe. “[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge for which he seeks a speedy trial[.]” Cundiff v. State, 967 N.E.2d 1026, 1031 (Ind. 2012). However, because Cree was not incarcerated on the charge pending in Carroll County, Criminal Rule 4(B) was not yet available to him, and the trial court erred in later dismissing his charge under that provision.

[11] In granting Cree's motion to discharge, the trial court concluded that Cundiff did not apply to Cree's circumstances because Criminal Rule 4.2(C) and Carson v. State, 266 N.E.3d 272, 2025 WL 2013688 (Ind. Ct. App. 2025), a recent unpublished memorandum decision from this court discussing Criminal Rule 4(C), required dismissal. Criminal Rule 4.2(C) provides:

If a defendant is charged in one Indiana county prior to the defendant being incarcerated in a different county, the Rule 4 time period tolls from the defendant's failure to appear in the non-custodial county until the earlier of: (1) the date the court in the non-custodial county orders the defendant's appearance; or (2) the date the defendant provides written notice to the court where the charge is pending of the defendant's location and requests initiation of proceedings in the non-custodial county.

Because there is no indication that Criminal Rule 4.2(C) abrogated or overruled Cundiff or that Cundiff is not otherwise good law, we disagree.

[12] In Carson, we agreed with the trial court that Carson's Criminal Rule 4(C) time started when Carson had notified the trial court of his incarceration in another county pursuant to Criminal Rule 4.2(C), not when the arrest warrant had been served. Id. at *3. Carson, however, dealt with Criminal Rule 4(C), not Criminal Rule 4(B). Criminal Rule 4(C) states that “[n]o 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.”

[13] The Indiana Supreme Court noted the differences between the two rules in Watson v. State, 155 N.E.3d 608 (Ind. 2020). Whereas an incarcerated defendant must trigger Criminal Rule 4(B) with a motion for a speedy trial, Criminal Rule 4(C) applies automatically, even when the defendant is not incarcerated. Id. at 615–16. Unlike Criminal Rule 4(C), the Criminal Rule 4(B) “clock” does not start merely because charges were filed against the defendant. Instead, “a defendant must be held on the charge for which he requests a speedy trial for Criminal Rule 4(B) to apply.” Cundiff, 967 N.E.2d at 1029.

[14] Cree had not been incarcerated on the Carroll County charge at any point when he had requested a speedy trial. Because incarceration is a prerequisite for Criminal Rule 4(B), there was likewise nothing to toll under Criminal Rule 4.2(C) because the clock had not yet started. Therefore, the trial court erred in dismissing Cree's felony auto-theft charge on these grounds.

[15] The judgment of the trial court is reversed, and we remand for further proceedings consistent with this memorandum decision.

FOOTNOTES

1.   The probable cause affidavit indicates that Cree was taken into custody on February 25, 2025, and the chronological case summary indicates that the State filed its charge on February 27. A “Promise to Appear” was filed the next day.

Bradford, Judge.

Bailey, J., and Altice, J., concur.