State v. Penwell

¶1dissenting.

¶2I respectfully dissent. I believe the State fell asleep at the switch here, and that the delay in setting a trial date for Penwell after the United States Supreme Court denied her petition for certiorari is chargeable to the State.

¶3First, I do not believe this was a case in which the defendant moved for an “indefinite continuance,” such as where the defendant moves for a continuance in order to pursue plea negotiations with the State. See State v. McGuire, 754 N.E.2d 639, 642 (Ind.Ct.App.2001), tram, denied. Here, although the precise date on which the Supreme Court would rule on Penwell’s certiorari petition was not known in advance, its ultimate ruling on the petition occurred on a date certain and was a matter of public record. Penwell’s motion for continuance was for the sole and express reason of waiting for that ruling. The end date of the continuance request was readily ascertainable once the Supreme Court denied her petition.

¶4Second, the State makes much of the fact that it did not file a response to Penwell’s certiorari petition. It contends that it, or more precisely the attorney general, therefore was not a “counsel of record” before the Supreme Court, and Supreme Court Rule 16(3) only requires notice of the denial of a certiorari petition to be sent to “counsel of record” and the court whose decision was under review, which here would have been this court. Thus, the State asserts, it had no reason to know of the denial of Penwell’s certiorari petition. However, I would direct the State’s attention to Supreme Court Rule 9(2), which states, “An attorney representing a party who will not be filing a document shall enter a separate notice of appearance as counsel of record indicating the name of the party represented.” (Emphasis added). Under the plain language of this rule, the attorney general’s office was required to notify the Supreme Court of its representation of the State in this matter, even if it did not intend to respond to Penwell’s petition, and it should have been “counsel of record” entitled to notice of the denial of the petition. If the attorney general’s office failed to file a notice of appearance as required by Supreme Court Rule 9(2), that hardly is Penwell’s fault.

¶5“The State’s duty to try the defendant within one year is an affirmative duty and the defendant is under no obligation to remind the State of its duty.” Marshall v. State, 759 N.E.2d 665, 668 (Ind.Ct.App. 2001). The State was just as able as Pen-well to track the resolution of her certiora-ri petition, and the State was entitled, equally with Penwell, to receive notice of the petition’s denial under Supreme Court Rules 9(2) and 16(3). I will presume the Supreme Court would have sent such notice, if the State had filed its appearance as required. Upon receiving such notice, it was the State’s duty, not Penwell’s, to notify the trial court that it wanted to set a trial date.2 I believe the trial court correctly granted Penwell’s motion to discharge under Indiana Criminal Rule 4(C) and vote to affirm.