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Indiana Court decisions – April 12-25, 2018

May 2, 2018

7th Circuit Court of Appeals

April 19

Civil Plenary — Indiana Abortion Law

Planned Parenthood of Indiana and Kentucky, Inc., et al. v. Commissioner of the Indiana State Department of Health, et al. 

17-3163

In a split 2-1 decision, the 7th Circuit Court of Appeals struck down Indiana’s abortion ban, which prohibited a woman from terminating her pregnancy because of the gender, race or disability of the fetus.

The 7th Circuit affirmed the ruling from the U.S. District Court for the Southern District of Indiana that House Enrolled Act 1337, signed by Gov. Mike Pence in March 2016, is unconstitutional. The decision in Planned Parenthood of Indiana and Kentucky, Inc., et al., v. Commissioner of the Indiana State Department of Health, et al., 17-3163, was issued April 19.

Judges William Bauer and Joel Flaum held that a state may not prohibit a woman from exercising her right to terminate her pregnancy prior to viability for any reason. Senior Judge Daniel Manion wrote a separate dissenting opinion in which he maintained precedent required the court to uphold the lower court’s decision, but he called for the U.S. Supreme Court to revisit its prior abortion rulings. 

The majority of the appellate panel found the nondiscrimination provisions in the law violated precedent set by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113, 153 (1973) and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey.

“The non-discrimination provisions clearly violate this well-established Supreme Court precedent, and are therefore, unconstitutional,” Bauer wrote for the majority. “The provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose. These provisions are far greater than a substantial obstacle, they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State.”

Planned Parenthood of Indiana and Kentucky and the ACLU of Indiana applauded the decision. Ken Falk, legal director for the ACLU of Indiana, described HEA 1337 as the state attempting to institute an “absolute prohibition” against abortion. If Indiana had prevailed in its argument that a woman’s right to an abortion could be overcome when the state’s interest is strong enough, then a woman’s right to obtain an abortion would disappear, he said.

“Specifically with the nondiscrimination provision, the (7th Circuit) recognized, as the district court recognized as we argued, the law in this area is crystal clear that the one cardinal principle in abortion jurisprudence as established by the U.S. Supreme Court is that a woman has the absolute right prior to viability whether or not to obtain an abortion,” Falk said.

Indiana Attorney General Curtis Hill had no comment.

The state has the option of appealing to the Supreme Court of the United States or asking the 7th Circuit for a rehearing. Falk said he would not be surprised if the state sought a review by the Supreme Court.

Christie Gillespie, president and CEO of PPINK, said managing the Planned Parenthood clinics can be difficult in the current atmosphere of the Indiana General Assembly passing anti-abortion laws and the federal courts overturning them. 

“I think that’s part of the unfortunate thing with all of the lawsuits is we end up spending a lot of time debating policies that have really already been decided some 40 years ago, when we really could be focusing on helping Hoosier families by focusing on how to prevent unintended pregnancies,” she said.  

Indiana argued HEA 1337 was reconcilable with precedent. The state asserted Casey only reaffirmed a woman’s right to chose whether or not to have a child prior to viability, but did not extend that right to the decision to terminate a particular child.

Describing its nondiscrimination provisions as a “qualitatively new type of abortion regulation,” Indiana said it had compelling interests in “prohibiting discrimination of particular fetuses in light of technological advances in genetic screening.”

The majority was unconvinced. Bauer characterized the state’s argument as allowing a woman to have an abortion if she decides before becoming pregnant that she does not want to bear a child but prohibiting the abortion if she determines after becoming pregnant she does not want a child.

In addition, Bauer found the state’s argument runs contrary to the 14th Amendment’s right to privacy.

“It is entirely inconsistent to hold that a woman’s right to privacy to terminate a pregnancy exists if a woman decides before she becomes pregnant that she does not want to bear a child, but that the State can eliminate this privacy right if a woman later decides she wants to terminate her pregnancy for a particular purpose,” Bauer wrote. “Nothing in the Fourteenth Amendment or Supreme Court precedent allows the State to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy prior to viability.”

In a 22-page dissent, Manion reluctantly concurred with the majority, calling the case “unfortunate” and describing the precedent that requires Indiana’s law be overturned as “regrettable.”

He found Indiana made a persuasive argument that Roe and Casey only gave the right to have a child and not the right to decide which child to have. This argument made sense, he wrote, since the non-discrimination provisions presented an obstacle only for women who already decided they wanted to have a child.

Manion asserted Indiana “made a noble effort to defend a statute that should need no defense,” but he faulted precedent, and in particular Casey, as making abortion a “super-right” which states cannot restrict.

“That today’s outcome is compelled begs for the Supreme Court to reconsider Roe and Casey,” Manion wrote. “But assuming the Court is not prepared to overrule those cases, it is at least time to downgrade abortion to the same status as actual constitutional rights. The Court can start by permitting the States to assert their legitimate interests in defense of abortion laws.”

The 7th Circuit also struck down HEA 1337’s provisions dealing with the disposal of aborted fetuses, finding it violated due process principles.

In essence, the law required abortion providers such as Planned Parenthood to bury, cremate or entomb the aborted fetus itself rather than contracting with a third party to do the work. Indiana argued that “a fetus is a human being who should be given a dignified and respectful burial and cremation.”

The majority pointed to the U.S. Supreme Court conclusion that the word “person” in the 14th Amendment does not include the unborn.

“Simply put, the law does not recognize that an aborted fetus is a person,” Bauer wrote. “…As such, the State’s interest in requiring abortion providers to dispose of aborted fetuses in the same manner as human remains is not legitimate.”

Manion dissented, finding the provision is within Indiana’s interest to provide the public sensibilities.

Indiana Supreme Court

April 12

Civil Tort — Legal Malpractice/Timeliness

Elizabeth Roumbos v. Samuel G. Vazanellis & Thiros and Stracci, PC

45S03-1710-CT-635

A legal malpractice claim against a suspended northern Indiana attorney and his firm will continue after the Indiana Supreme Court found a genuine issue of material fact as to whether the plaintiff’s premises liability claim would have succeeded had the firm not failed to timely file her complaint.

While visiting her husband at St. Anthony Hospital in Crown Point, 85-year-old Elizabeth Roumbos walked around the foot of the hospital bed to a table on the other side of the bed, where a pitcher of water was located. After giving the water to her husband, Roumbos began to walk back to her seat on the other side of the bed, but tripped and fell on the way, resulting in a fractured femur. Roumbos claimed she tripped on cords and wires that were on the floor, but that she did not see them until after she fell.

The elderly woman hired now-suspended attorney Samuel Vazanellis and his firm, Thiros and Stracci, P.C., to represent her in her premises liability suit against the hospital. However, the firm failed to file Roumbos’ complaint within the applicable statute of limitations, so she sued for legal malpractice.

The Lake Superior Court initially entered summary judgment in favor of the firm, but the Indiana Court of Appeals reversed in February 2017, then reaffirmed its decision the following June. The case went to the Indiana Supreme Court in November, and in an April 12 opinion, the justices determined the summary judgment ruling was improper.

Specifically, Justice Geoffrey Slaughter wrote there was a genuine issue of material fact as to whether the phone cords and wires that caused Roumbos’ fall were either a “known” or “obvious” danger. Looking first to whether the danger was “known,” Slaughter pointed to Roumbos’ testimony that she did not see the wires until after her fall to show it was not known. But turning to the question of an “obvious” danger, Slaughter said a jury could reasonably find the wires were not obvious to an ordinary person.

“For all we know the hospital bed and table obstructed the wires from view until Roumbos was right on top of them,” Slaughter wrote. “And by then it was too late.”

“The mere presence of a phone on the portable hospital table did not necessarily mean that a dangerous tripping threat existed on the floor that should have been obvious from Roumbos’ vantage point,” the justice continued. “Whether the wires generally, or the phone cord specifically, were obvious because they would have been apparent to a reasonable person under the circumstances is a disputed issue of material fact on this record that precludes summary judgment.”

Thus, the high court reversed the grant of summary judgment to the firm and remanded the case for further proceedings. All justices concurred.

Criminal — Internet Probation Restriction

Kristopher L. Weida v. State of Indiana

79S02-1711-CR-687

A Tippecanoe County man convicted of incest with his teenage niece will have one of his probation conditions revisited after the Indiana Supreme Court determined the condition requiring him to get permission to access the internet was not reasonably related to his crime.

In Kristopher L. Weida v. State of Indiana, 79S02-1711-CR-687, 34-year-old Kristopher Weida had sex with his 16-year-old niece, K.M., after looking at explicit photos on their cellphones and perusing a website about incest. Weida subsequently pleaded guilty to Level 5 felony incest and left sentencing to the Tippecanoe Superior Court’s discretion.

The trial court sentenced Weida to three years, with one year executed and two years suspended to probation. Among the probation conditions imposed was Condition 8, which prohibited Weida from accessing websites “frequented by children,” and Condition 26, which prohibited him from accessing the internet without prior approval from his probation officer. However, Weida was permitted to use the internet to contact his children.

A divided panel of the Indiana Court of Appeals upheld those probation conditions in August, with Judge Rudolph Pyle writing the conditions were “reasonably related” to Weida’s offense and because they did not constitute a complete internet ban. But Judge John Baker dissented, finding Condition 26 was “unduly intrusive and unnecessarily restrictive.”

After hearing oral argument in December, the Indiana Supreme Court unanimously agreed with Baker’s dissent regarding Condition 26, but aligned with the majority opinion with regard to Condition 8.

Looking first to Condition 8, Justice Christopher Goff rejected Weida’s argument that the trial court should have provided “an illustrative list of prohibited activities to pass constitutional muster.” Then, taking his probation conditions as a whole — which included other prohibitions on explicitly communicating with children in person or on the internet — Goff said Weida’s probation imposed a blanket ban on contacting children other than his own.

Thus, a person of ordinary intelligence would understand that Condition 8 prohibits Weida from visiting websites where he could engage in such communication, Goff said. That prohibition is reasonably related to Weida’s rehabilitation and to protecting the public considering the nature of his offense, he said, and does not unduly intrude on his First Amendment rights.

But turning to Condition 26, the high court found its provisions — which have since been altered on a statewide level — were not reasonably related to Weida’s rehabilitation or to public safety. Relying on Waters v. State, 65 N.E.3d 613, 619-20 (Ind. Ct. App. 2016), the court noted that Weida had no history of misuse of the internet, aside from the time he spent looking at an incest website with his niece.

“A more appropriate internet restriction — one that reasonably relates to his rehabilitation and protecting the public — will restrict access to obscene or sexually explicit material,” Goff wrote. “Such a restriction will assist him in rehabilitating and avoiding enticement to re-offend yet allow him to remain a productive member of our internet-dependent society.”

Thus, the court remanded the case with instructions to impose a more reasonable internet restriction. In a footnote, they also summarily affirmed the Court of Appeals’ holding that Weida’s sentence was not inappropriate.

April 17

Civil Plenary — Summary Judgment/Unauthorized Search

City of Gary Police Civil Service Commission v. Raymond Robinson

45A05-1706-PL-1414

The Indiana Court of Appeals has reversed summary judgment for a Gary police officer accused of misusing his police privileges to investigate a confidential informant after finding the city’s complaint against the officer was not untimely filed.

The case of City of Gary Police Civil Service Commission v. Raymond Robinson, 45A05-1706-PL-1414, began in September 2012, when FBI agents arrested Gary Police Department Officer David Finley on corruption charges, based in part on tips from a confidential informant. When the informant went into hiding, GPD Officer Raymond Robinson used his credentials to conduct an unauthorized search of local and national law enforcement databases to find the informant.

Robinson was able to locate the phone number of the informant who soon began receiving threatening phone calls. The informant reported the calls, which led to an FBI investigation that uncovered Robinson’s unauthorized search of the databases. Robinson subsequently claimed he had conducted the searches out of curiosity, but the FBI investigation led to the permanent revocation of Robinson’s database access in October 2013. He had already been temporarily transferred out of the Bureau of Uniform Services Division in March 2013.

The city of Gary then filed a complaint against Robinson with the City of Gary Police Civil Service Commission on Jan. 23, 2014 and requested his termination. A hearing officer recommended Robinson’s termination, and the full commission accepted the hearing officer’s report.

Robinson then filed for judicial review in the Lake Superior Court, and the commission responded with a motion to dismiss. The trial court denied that motion, but granted summary judgment to Robinson after finding that the 120-day period for filing the January 2014 complaint – as set forth in Commission Rule of Procedure II(7)(A) – began running when Robinson was transferred in March 2013.

The Indiana Court of Appeals partially upheld that ruling on April 17, with Judge Edward Najam first writing the argument the commission made on appeal with regard to the denial of its motion to dismiss had no relationship to the argument it made to the trial court. Waiver notwithstanding, Najam also said the commission’s appellate argument that Robinson bore the burden under the Administrative Orders and Procedures Act to file the commission’s record in the trial court within 30 days of the commission’s decision — which was not done — fails because the AOPA does not apply here.

Najam also said the commission failed to preserve its argument regarding summary judgment evidence for appellate review. The police commission argued the trial court erroneously considered evidence on summary judgment that was not before the commission, but Najam said it waived that argument by failing to object and by affirmatively agreeing with Robinson’s representation of facts to the trial court.

However, the appellate court ultimately overturned the grant of summary judgment to Robinson after finding Rule II(7)(A) holds that alleged misconduct is “discovered” when an allegation is substantiated by an investigation. Here, the FBI investigation substantiated Robinson’s misconduct in October 2013, when his database access was removed, rather than when he was temporarily transferred based on alleged misconduct in March 2013.

Thus, the appellate panel reversed the entry of summary judgment for Robinson and remanded the case for further proceedings.

Juvenile — CHINS

In the Matter of: J.R. and M.R., Children in Need of Services, D.R. (Mother) and M.R. (Father) v. Indiana Department of Child Services

80A02-1704-JC-806

The Tipton Circuit Court must dismiss children in need of services petitions filed for two local children after it failed to hold a related factfinding hearing within the statutory time limit, the Indiana Court of Appeals ruled April 17.

After receiving a report that M.R. was abusing his two children, J.R. and M.R., the Department of Child Services filed petitions on Sept. 29, 2016, declaring the children were CHINS. The juvenile court held a factfinding hearing on Nov. 22, then continued the hearing to the following February.

M.R. and D.R., the children’s mother, objected to the continuance as outside of the statutory 60-day limit to hold factfinding hearings, but the juvenile court overruled the objection. The court then denied a motion to dismiss and found the children were CHINS on Feb. 23, 2017.

After the parents appealed, the Indiana Court of Appeals agreed with their argument that the juvenile court erred in denying the motion to dismiss because the factfinding hearing was not completed within 60 days. Judge Cale Bradford pointed to Indiana Code section 31-34-11-1(d), which holds that a court “shall dismiss the case without prejudice” if a CHINS factfinding hearing is not held within the 60-day limit set out in subsection (a). The 2012 addition of subsection (d) meant that Parmeter v. Cass County Dept. of Child Services, 878 N.e.2d 444, 448 (Ind. Ct. App. 2007) — which held that “shall” in subsection (a) was directory and not mandatory — was no longer good law on that point, Bradford said.

“Moreover, if we were to allow the deadline to be ignored here, trial courts could habitually set these matters outside the time frame and there would be no consequence whatsoever,” Bradford wrote. “We believe that any change (including the imposition of any more severe consequences) has to come from the General Assembly, and unless/until that occurs, we are bound to apply the statute as written.”

The court, thus, reversed In the Matter of: J.R. and M.R., Children in Need of Services, D.R. (Mother) and M.R. (Father) v. Indiana Department of Child Services, 80A02-1704-JC-806, and remanded with instructions to dismiss the CHINS petitions without prejudice. The court also noted that if DCS chooses to refile the petitions, it will have to present new evidence regarding the children’s current conditions.

April 18

Criminal — Revocation of Work Release Placement

Michael Flowers v. State of Indiana

10A01-1703-CR-586 

A trial court’s flawed analysis of two points of state law led the majority of an Indiana Court of Appeals panel to reverse an order that vacated a Clark County man’s placement in community corrections work release.

In Michael Flowers v. State of Indiana, 10A01-1703-CR-586, Michael Flowers was sentenced in September 2012 after pleading guilty to a charge of Class B felony aggravated battery. He was later placed on work release, but the state moved to revoke the placement in December 2016 after Flowers tested positive for methamphetamine, had repeatedly reported late to work release, and was in arrears in program fees of more than $7,200.

Senior Judge Nicholas South presided at a hearing in January 2017 at which the prosecutor and Flowers’ case manager opposed his placement in community corrections and Flowers’ defender moved for a modification to home incarceration. South ordered Flowers remanded to community corrections.

In February, Clark Circuit Judge Andrew Adams revoked the placement after another hearing. Adams said because community corrections was unwilling to accept Flowers, “I can’t order them to accept him, it’s their program,” and “I don’t have anything but to allow him to serve the remainder of his sentence.”

The court also noted at the February hearing that any court order by a senior judge “can be reviewed by the presiding judge, as well as modified or altered by the presiding judge.”

“This statement equates the role and authority of a senior judge with that of a commissioner or a magistrate, which finds no support in the law,” Judge Elaine Brown wrote for the majority joined by Judge John Baker. “The trial court was, in fact, entitled to revisit Judge South’s order, but not because of his status as a senior judge. Instead, the trial court was permitted to do so by virtue of Ind. Code § 33-23-2-4, which … provides that all courts ‘retain power and control over their judgments for ninety (90) days after rendering the judgments in the same manner and under the same conditions as they retained power and control during the term of court in which the judgments were rendered.’”

Likewise, the COA found the trial court’s analysis — “that its proverbial hands were tied” because community corrections didn’t want to take Flowers, or that the judge’s only option was to order Flowers to serve the remainder of his sentence in the Department of Correction — faulty.

“The trial court was incorrect to believe that it was required to accept the Community Corrections program’s decision to revoke Flowers’s placement,” Brown wrote for the majority. “Instead, the trial court should have treated that decision as a request for the court to revoke Flowers’s placement, which it would have been free to grant or deny.

“It may very well be that the trial court will ultimately arrive at the same determination,” to revoke the placement, Brown wrote. “Nevertheless, we remand so that the trial court can reconsider its decision by making a proper analysis and then enter a new order.”

Judge Patricia Riley dissented and would have affirmed the trial court. She found the appellate majority’s analysis of the trial court’s analysis “wholly irrelevant,” because the trial court had authority to revoke the petition under I.C. 33-23-2-4.

Agency Action — Disability Discrimination/Voiding Portions of Indiana Administrative Code

Knox County Association for Retarded Citizens, Inc. v. Melissa (Cope) Davis

93A02-1701-EX-141

Portions of the Indiana Administrative Code were voided by an Indiana Court of Appeals decision in a disability discrimination suit in which the appeals court also substantially reduced a damages award to a fired worker and criticized counsel for incivility and citing outdated regulations.

The Court of Appeals’ 40-page ruling in Knox County Association for Retarded Citizens, Inc. v. Melissa (Cope) Davis, 93A02-1701-EX-141, found that Melissa (Cope) Davis had been discriminated against on the basis of disability, but that an award by the Indiana Civil Rights Commission was excessive. The COA also ruled that portions of the IAC were in conflict with the federal Americans with Disabilities Act and the Code of Federal Regulations and were therefore void.

Davis was fired from her position as a direct support professional at KCARC in 2012 after she had previously left work for an unknown medical issue and was diagnosed as having a loss of consciousness or “syncopal episode.” She later was released to work with restrictions including only light duties and jobs that required mostly sitting. She was fired after KCARC staff said there were no positions that met the work restrictions.

Davis then filed a discrimination complaint with the ICRC, and in 2016, she was awarded back damages of more than $25,800, plus prejudgment interest for a total award of more than $35,100.

The COA affirmed the ICRC’s discrimination finding in its opinion but reversed the damages award based on Davis’ failure to mitigate her losses through her subsequent employment. The COA said she proved damages of $6,202.28, and the panel remanded for a determination of prejudgment interest to be added to that sum.

But the panel also found that state regulators’ code was outdated and void. Citing 910 IAC § 3-2-15(b) (2013), Judge Melissa May wrote for the panel that “the definitions for determining disability under the IAC have not been modified to account for the changes produced by enactment” of the ADA.

“Because Indiana Code section 22-9-5-27 requires the portions of the IAC dealing with employment discrimination against disabled people not conflict with the ADA, the current version of the IAC is invalid and we cannot rely on it,” May wrote.

“We conclude the portions of the IAC that do not comport with the language of the ADA and the CFR are invalid,” she said.

The panel then applied the ADA to affirm the determination that Davis had a qualifying disability. The panel also affirmed the finding that KCARC did not engage in the requisite interactive process with Davis of determining whether a reasonable accommodation was available.

Meanwhile, the panel called out the incivility of counsel and the outdated administrative code both sides relied on in this case.

“(W)e would like to note the lack of civility between the parties in this case, both in their briefs and during oral argument,” May wrote in a footnote. “Unnecessarily argumentative and snide comments such as, ‘Of course, the fact that Davis can’t seem to consistently state the nature of her alleged disability is because she doesn’t suffer from one[,]’ ... and ‘had the Commission actually bothered to read the case they cited in support of their conclusion that Davis is disabled, they would have discovered that it actually stands for the exact opposite of their assertion,’ ... as well as conduct during the oral argument, degrade the parties’ arguments by showcasing the incivility between the parties.

“We remind counsel of sections 1 and 9 of the Preamble to the Indiana Rules of Professional Conduct, which state: ‘Whether or not engaging in the practice of law, lawyers should conduct themselves honorably[;]’ and ‘[The principles of the Rules of Professional Responsibility] include the lawyer’s obligation to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system,’” May continued.

In a separate footnote, the court wrote, “We find it unsettling that neither party recognized this difference between the current version of the (Code of Federal Regulations) and the current version of the IAC, which do not comport. Further, Davis, who is represented by ICRC, cited the 2007 version of the CFR, which has been invalid for a decade. … In addition to this inexplicable error, Davis’ brief is replete with citations that seem to be to the record, but do not indicate whether the material is from the appendices or transcripts. This failure to properly cite the record has greatly hindered our review of this very complex record.”

April 24

Criminal/Speedy Trial Rule

State of Indiana v. Daniel L. Myers

69A01-1708-CR-1805

A Ripley County man whose drunken-driving counts were discharged by a trial court after he moved for dismissal under the speedy trial rule may be haled back into court on those charges after the state successfully appealed.

The Indiana Court of Appeals on April 24 reversed dismissal of the charges in State of Indiana v. Daniel L. Myers, 69A01-1708-CR-1805. Daniel Myers was charged with three counts of operating while intoxicated on Dec. 3, 2015. After numerous delays — some of which were attributable to Myers — the Ripley Superior Court at a pretrial hearing on May 26, 2017, set a trial date, without objection, of Nov. 14, 2017.

At the pretrial hearing, the court asked the state and defense if there were any issues under Indiana Trial Rule 4(C), which generally requires a trial date be set within one year of the filing of charges. Neither Myers’ defense nor the state said there were any such issues.

But last June, Myers’ defense said it learned that the one-year period had expired, meaning Myers was entitled to dismissal of the charges under Trial Rule 4(C). The trial court agreed and dismissed the case, prompting the state’s appeal.

“Here, it is undisputed that Myers did not object during the one-year period” as required, Chief Judge Nancy Vaidik wrote for the panel. “The State had 20 days remaining in the one-year period when the pretrial conference was held on May 26. At that conference, the trial court asked either party if there was any Rule 4(C) issue, but neither party expressed any concern.

“… Trial was then set for November 2017. Myers did not object,” Vaidik continued. “Once the trial court asked about any Rule 4(C) issue, Myers was made aware that an issue may exist. Myers, however, did not calculate the Rule 4(C) deadline until June 22 — 7 days after the one-year period expired — and then moved for discharge.”

Myers cited Havvard v. State, 703 N.E.2d 1118, 1121 (Ind. Ct. App. 1999), which held, “When a defendant learns within the period provided by the rule that the case is set for trial at a time beyond the date permitted, the defendant must object to such a trial setting at the earliest opportunity.”

“(W)e are not convinced that the use of the word ‘learns’ in Havvard was meant as an invitation for a defendant to calculate the Rule 4(C) deadline at his convenience, as Myers contends,” Vaidik wrote. “This would eliminate the defendant’s burden to object during the one-year period to a trial date that is set beyond the deadline. Ideally, Myers’s attorney would have been tracking the Rule 4(C) deadline since the beginning of the case and would have objected as soon as the court mentioned a November 2017 trial date. At the very least, Myers’s attorney should have calculated the deadline reasonably soon after the pretrial conference — at which the trial court specifically inquired about Rule 4(C) — and objected with time still remaining in the one-year period.”

“Instead, Myers waited nearly thirty days to do the calculation and alert the court that the trial was set for a date beyond the one-year period,” Vaidik continued. “Because Myers failed to object to the November 2017 trial date before the one-year period expired, he acquiesced to the trial date and waived any claim to discharge under Rule 4(C).

“ … Of course, this does not mean that the State is now free to try Myers whenever it pleases. As of May 26, the State had 20 days left on its one-year period under Rule 4(C),” Vaidik wrote. “Therefore, within 7 days of this opinion being certified, the trial court shall hold a hearing and, if Myers demands it, set a trial within 20 days of the hearing. If court congestion prevents the court from setting a date within that timeframe, the court should make an explicit finding to that effect and set the trial for the next available date.”•

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