Covid Delay of Trial Appropriate

No Right to Trial if Defendant Waives Right to Speedy Trial by Defendant

Barry Zalma

Dec 20, 2024

Transcript

FACTS

The State filed charges against Boger on February 12, 2020. On March 11, 2020, the trial court set Boger’s jury trial for August 17, 2020. On August 11, 2020, the State moved to continue the trial date, citing congestion of the court calendar. However, Boger also moved to continue the trial date. The court granted his request, noting his waiver of rights under Criminal Rule 4, and reset the matter for at lease three more times.

On March 3, 2021, Boger filed a speedy trial motion, which the court granted, designating the May 24, 2021 trial date as the speedy trial setting. Further continuances were granted because of Covid pandemic restrictions. On March 31, 2024, Boger filed a motion to certify the denial of his fifth motion for discharge under Criminal Rule 4(C) for interlocutory appeal, which the court granted.

DISCUSSION AND DECISION

Boger claims that the court erred by denying his fifth motion for discharge because he was not brought to trial within the one-year time frame set out in Criminal Rule 4(C). The delays challenged in this appeal were justified on grounds of congestion of the trial court’s calendar. Indiana Criminal Rule 4(C) (2024) generally implements the constitutional right of an accused to a speedy trial.

Beginning on March 3, 2020, the Indiana Supreme Court entered a series of orders tolling the operation of Rule 4(C) due to the COVID-19 pandemic. Boger’s calculations of delay attributable to the State (462 days) did not take into account the tolling orders.

The trial court did not explicitly find an emergency; however, the court’s reference to the Supreme Court’s orders is indicative of the court’s reasoning and supports its conclusion that Boger’s trial could not be held prior to March 1, 2021.

Criminal Rule 4 places an affirmative duty on the State to bring a defendant to trial within one year. A defendant with adequate proof may successfully challenge a declaration of court congestion on appeal. However, Boger did not do so. The Court of Appeals concluded that Boger did not show that Criminal Rule 4(C) was violated and, therefore, there was no clear error and the order must stand.

Since Boger did not establish clear error in the trial court’s decision to deny his fifth motion for discharge and because the Court of Appeals declined to address his constitutional claims brought for the first time in his opening brief on interlocutory appeal, the trial court judgment was affirmed.

ZALMA OPINION

The charges Boger faced were very serious and conviction could result in an extensive jail sentence. Delay worked to his benefit and he, therefore, waived his right to a speedy trial and to trial within a year in accordance with Indiana rules. The Pandemic also resulted in delays and after a review in detail of the delays, continuances, and agreements by both the state and Boger were found to be appropriate because the trial court did not commit any version of clear error. He still faces litigation with the insurer he attempted to defraud.