Court split over actual notice of defendant’s incarceration

October 14, 2015

Although “not a fan” of discharges pursuant to Criminal Rule 4(C), an Indiana Court of Appeals judge believes a defendant’s case needs re-examined by the trial court to see if he is entitled to discharge.

Travis Allen was arrested in December 2011 for allegedly driving while intoxicated. While out on bond, he was arrested for an unknown offense, to which he pleaded guilty and was sentenced to 10 years in prison. At a pretrial conference on Oct. 15, 2012, on the drunken driving charges, Allen told the court about his prison sentence. At his January 23, 2013, bench trial, Allen was not present; his attorney never filed a transport order for Allen to be present at the trial.

In September 2013, Allen filed a pro se verified petition for resolution of detainer in which he mentioned that he was in prison. The trial court struck the petition because he was represented by counsel. His attorney filed a motion to discharge in April 2014 pursuant to Criminal Rule 4(C), which was denied. Allen’s bench trial occurred Oct. 8, 2014, and he was found guilty as charged.

He maintained in Travis Allen v. State of Indiana, 49A05-1410-CR-501, that many of the delays are attributable to the state and so the charges should have been dismissed. He also argued the state and court were on notice that he was in the DOC. The majority determined that the first time the state received actual notice of Allen’s incarceration was in April 2014 when his attorney filed the motion for discharge. Allen’s attorney’s failure to obtain a transport order and explain Allen’s absence at his trial is attributable to Allen, not the state, the majority held. Since only 363 days of delay can be charged to the state, which is less than one year, Allen is not entitled to discharge.

“Allen informed the trial court of his incarceration in person on the record at the October 2012 pretrial conference. Even if this actual notice of his incarceration was not sufficient to preserve Allen’s Rule 4(C) rights, I believe that Allen’s September 5, 2013 pro se petition was. If these attempts at notification were not sufficient, what else was Allen to do?” Judge Michael Barnes wrote in his dissent.

“I know this case arose in Marion County, where the criminal case overload is, at times, chaotic; however, Allen did what he could to protect his rights. Although I am not a fan of discharges pursuant to Criminal Rule 4(C), I would recalculate the time in a manner that reflects the attempt(s) by Allen to notify the trial court of his whereabouts. If that results in discharge, so be it.”



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