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Battering v. State

Court of Appeals of Indiana

October 11, 2019

Brandon Battering, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Pulaski Circuit Court Cause No. 66C01-1512-F1-3 The Honorable Michael A. Shurn, Judge The Honorable Mary Welker, Judge

          Attorney for Appellant Mark K. Leeman Leeman Law Office and Pulaski County Public Defender Logansport, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General Angela N. Sanchez Assistant Section Chief, Criminal Appeals Indianapolis, Indiana


         Case Summary

         [¶1] Brandon Battering, who is charged with child molesting and child solicitation based on allegations that he engaged in sexual conduct with his twelve-year-old stepsister, appeals the denial of his motion for discharge under Indiana Rule of Criminal Procedure 4(C). Rule 4(C) entitles a criminal defendant to discharge if the State fails to bring the defendant to trial within one year of the filing of charges or the arrest of the defendant, whichever is later. The deadline can be extended for a variety of reasons. Our Supreme Court held in Pelley v. State, 901 N.E.2d 494 (Ind. 2009), reh'g denied, that when the State pursues an interlocutory appeal and the trial-court proceedings get stayed as a result, the deadline is extended accordingly. The issue in this case is whether the trial-court proceedings were "stayed" when the trial court authorized an interlocutory appeal by the State and vacated the upcoming trial date but did not actually use the word "stay." We hold that they were, and we therefore affirm the trial court's denial of Battering's motion for discharge.

         Facts and Procedural History

         [¶2] Rule 4(C) provides, in relevant part, "No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later[.]" Battering was arrested on December 3, 2015, but he was not charged until the next day, December 4, 2015. Under Rule 4(C), then, the State initially had until December 4, 2016, to take Battering to trial. However, at a pretrial conference held in April 2016, trial was set for January 24-26, 2017, apparently with no 4(C) objection from Battering.

         [¶3] On January 13, 2017, eleven days before trial was set to begin, Battering filed a motion to suppress incriminating statements he made to police, claiming that officers had continued questioning him after he invoked his right to remain silent. The trial court held a hearing on Battering's motion on January 19 and granted it the same day.

         [¶4] During a telephonic conference the next afternoon, the prosecutor indicated that he would be asking the court to certify its suppression order for interlocutory appeal. Defense counsel asked the prosecutor, "Are you going to ask to stay the proceedings and to continue the jury trial?" Supp. Tr. p. 7. The prosecutor answered, "Yes." Id. The judge stated that he would be "inclined to grant" a motion for certification and that "I would be vacating the trial if I'm granting that." Id. Shortly after the call ended, the State filed a combined motion for certification and motion to "continue" the jury trial. Appellant's App. Vol. III pp. 103-04. The State did not explicitly request a "stay," as it said it would, but it asserted, "That in order to allow time for the Court of Appeals to review this matter, it is necessary to continue the trial of the Defendant that is currently set for January 24, 25, and 26, 2017." Id. at 104.

         [¶5] The judge and the lawyers then got back on the phone. The judge said that he was going to certify the suppression order for interlocutory appeal and "continue" the jury trial. Supp. Tr. p. 11. Defense counsel objected to the continuance of the trial as follows:

And for my purposes, Your Honor, I need to show my objection to the continuance. We object to any continuance. We're prepared and ready for trial. We believe the State should be, as well, and so any - we would object to the continuance. And then I will file a Rule 4 issue after this.

Id. The judge overruled the objection, explaining, "Well, I don't know how to certify this issue for interlocutory appeal and still have a trial, but I sort of think that if I've got to do the one, I have to do the other. They seem to go hand in hand." Id. The judge added, "If I'm going to grant the interlocutory appeal, the trial has to be continued, and so I have to grant the State's motion for that." Id. at 12. The State did not expressly request a "stay," nor did the court expressly state that it was imposing a "stay," but at no point did defense counsel object on either ground to vacating the trial date. After the conference, the trial court issued a written order that provided, in pertinent part, "The Court . . . now grants the State's motion, Orders the issues certified for interlocutory appeal, and vac[a]tes the trial setting previously set for January 24, 2017." Appellant's App. Vol. III p. 123.

         [¶6] The State then had thirty days to ask this Court to accept the appeal. During that period, Battering made multiple filings in the trial court. He filed a Motion to Exclude Certain Discovery at Trial on January 26 and a Motion to Reduce Bond on February 6. Then, on February 15, he filed a Motion to Set Jury Trial. The same day, the State filed its motion for interlocutory appeal with this Court, which we granted on March 17.

         [¶7] On June 1, while the appeal was still pending in this Court, the trial court held a hearing to address Battering's motions. As soon as the hearing began, though, Battering raised a new issue: he asserted that he was entitled to be discharged pursuant to Rule 4(C). Citing Pelley, where our Supreme Court explained that "the time for an interlocutory appeal is excluded from Rule 4(C)'s limitation only when the trial court proceedings have been stayed," 901 N.E.2d at 500, Battering argued that the State had not requested a stay of the trial-court proceedings pending the interlocutory appeal and that as a result the 4(C) clock had continued to run and had expired. In the alternative, Battering asked that he "get a trial as soon as possible," Tr. p. 13, without waiting for this Court to decide the interlocutory appeal. The trial court and the State, on the other hand, agreed that no trial should take place before the conclusion of the interlocutory appeal. The court wondered whether it even had "jurisdiction to do the entire case" with an interlocutory appeal pending, id. at 18, and then asked, "[W]hy would we go forward with the trial on all of the issues if it's up on interlocutory appeal before the decision on interlocutory appeal?", id. at 20. The State maintained that the interlocutory appeal "needs to be determined before the trial begins," id. at 23, and asserted that holding a trial before getting a ruling in the appeal "vitiates the whole basis for doing the appeal to begin with," id. at 22. Based on Battering's guess that the interlocutory appeal would be decided by late September or early October of 2017, the trial court scheduled trial for October 9-12. However, the court also directed the parties to brief the Rule 4(C) issue in the meantime. At the end of the hearing, the prosecutor added that "since [Battering's] so adamant about wanting a piece of paper saying things are stayed," the State would be filing a motion to stay. Id. at 37.

         [¶8] The State had not filed that motion as of June 7, when Battering filed his written motion for discharge pursuant to Rule 4(C). Again, Battering argued that the trial-court proceedings had not been stayed pending the State's interlocutory appeal and that the delay caused by the appeal is therefore attributable to the State under Pelley. The ...

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