COA divided on motion for discharge argument in molestation case

A split Indiana Court of Appeals has affirmed the denial of a man’s motion for discharge of his child molesting and child solicitation counts under Indiana Rule of Criminal Procedure 4(C), with a dissenting judge arguing that because proceedings were not stayed until months after an interlocutory appeal was filed and accepted, the tolling rule doesn’t apply.

Brandon Battering was arrested on Dec. 3, 2015, but not officially charged until the following day. Under Rule 4(C) the state had until Dec. 4, 2016 to bring him to trial, but trial was ultimately set for Jan. 24-26, 2017, with no objection from Battering.

After Battering was granted a motion to suppress incriminating statements he made to police, the state prosecutor asked the trial court to certify its suppression order for interlocutory appeal, indicating that he would ask to stay the proceedings and continue Battering’s jury trial. The trial court granted the state’s motion, vacating the trial date that had been set.

By June 2016, Battering asserted he was entitled to be discharged pursuant to Rule 4(C), arguing 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. Battering continued to move for discharge under the rule for the next two years as his trial date was continually reset.

At question in Brandon Battering v. State of Indiana,18A-CR-02309 was whether the trial court proceedings were “stayed” when the court authorized an interlocutory appeal by the state and vacated the upcoming trial date, but did not actually use the word “stay.”

A split appellate court held that they were, affirming the trial court’s denial of Battering’s motion for discharge. However, one judge disagreed, arguing that Battering’s motion should have been granted.

The majority concluded that the specific 146 days at issue — the time that passed between the trial court’s Jan. 20, 2017 order certifying its suppression order for interlocutory appeal and the court’s June 15, 2017 order granting the state’s motion to stay pending the appeal — were in fact a stay as required under State v. Pelley, 828 N.E.2d 915 (Ind. 2005).

“… [W]hile the State and the trial court used the word ‘continue’ instead of the word ‘stay,’ the trial was not merely pushed back (i.e., ‘continued’) to a different date. It was put off for as long as the appeal would take. That is a stay, regardless of the label used,” Chief Judge Nancy Vaidik wrote for the majority.

While it concluded the delay between Jan. 20 and June 15 was not chargeable to the state, Judge John Baker dissented in a separate opinion, arguing that because the proceedings were not stayed until months after the interlocutory appeal was filed and accepted, the tolling rule announced in Pelley did not apply.

“It is apparent that neither Battering, nor the State, nor the trial court believed that the proceedings were stayed upon the trial court’s certification of the suppression order for interlocutory appeal, given all of the litigation that occurred following that date,” Baker opined.

“And as noted above, neither the trial court’s certification of an order for interlocutory appeal nor this Court’s acceptance of jurisdiction over that appeal mean that a stay is automatically granted,” Baker continued. “It must be requested and ordered. And here, neither the words of the relevant orders nor the behavior of the parties or the trial court show that a stay was put in place until June — long past the Rule 4(C) one-year cutoff.”

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