*1 Indiana, Appellant-Plaintiff, STATE

v. LARKIN, Appellee-Defendant. B.

John Appeals No. Case

Court

46A04-1607-CR-1522 Appeals of

Court of Indiana. 7, 2017

June August

Rehearing Denied

See also 43 N.E. 3d 1281.

Attorneys Appellant: Hill, T. Curtis for Jr., Indiana, Attorney General of Eric P. General, Babbs, Deputy Attorney India- Levco, napolis, Stanley Special M. Prose- Evansville, cuting Attorney, Indiana Attorneys Appellee: Stacy R. Ulia- na, Foster, Bargersville, E. James Office Foster, P.C., Hammond, E. James Indiana Robb, Judge. Summary Issues

Case Following Stacey the death husband, charged her John, voluntary manslaughter as a with felony. Class A Larkin moved dismissal, discharge each of which the granted. appeals, The State now review, for our raising two issues which we 1) as: the trial court erred restate whether discharge, motion for On December 'granting 2) trial erred agreed whether the to talk to investigators about the Con granting Larkin’s motion dismiss. shooting long charged so as he was cluding grant not err court did voluntary manslaughter in lieu of murder. *3 motion, ing either we affirm. Larkin, attorneys, police investigator, his County History1 Szilagyi, Facts LaPorte Prosecutor Bob and Procedural Deputy and Chief Prosecutor Robert 2012, Larkin contacted De June Neary present during videotaped were the Michigan Kaplan tective Darren of the break, During a Larkin interview. and his friend, City Department, family Police attorneys left in the alone room and Stacey strange note to Larkin after sent a strategy. discussed defense Unbeknownst gun. and left their home with a Detective them, however, recording to video the requested Kaplan contacted and Stacey equipment was off contin gun, with the she turned and she return home which Kaplan reported time, never the During did. Detective to record. this Larkin ued month, following incident. the explained leading Stacey the events to be Kaplan discussed the matter him, Detective According Stacey strug shot. to Long Bab- with Beach Police Officer Tobin gled mental and with illness addiction and officers Long police cock after Beach re himself, Stacey, he became concerned for sponded to a domestic situation at Stacey opened and their children when during Larkins’ home the same summer. in attempt in the home an safe retrieve incident, Following Long the domestic gun. struggle A then ensued between Stacey. Police Officers arrested Beach Larkin, Stacey resulting Stacey and suf 2012, fering gunshot Larkin two The safe’s On December called wounds. operator his sent 911 and informed the wife had door was later to the Federal Bureau Long (“FBI”) from the been shot. Officers Beach Investigation’s Quanti- office at Larkin’s Department Police arrived co, for Virginia, analysis. Stacey

home and discovered deceased week, point during At some the next gunshot from two wounds. was tak Lieutenant Bullis reviewed the video police placed station into an en pro the December interview and being interview room. After advised his copy Neary. January vided a immediately rights, requested his and then re Neary reviewed the video of a attorney present. course Over the quested reporter tran Jamie Arnold hours, enforcement, including couple law transcribing the entire video. In scribe Bullís, ques Lieutenant Todd continued to video, the conversation Arnold observed despite requests tion Larkin Larkin’s attorneys Larkin and his was record attorney. point during the an At some Neary ed and asked whether she should interview, investigators Larkin told portion of the transcribe that interview. summer, occurring previous incident Neary instructing Arnold not Despite including Kaplan how Detective assisted portion, privileged transcribe Stacey safely. Citing him in getting home later tran Amendment, communications were somehow Fifth the trial court later prosecutors in during scribed distributed suppressed statements made County LaPorte Prosecutor’s Office. interview. faculty, advocacy argument for their and thank the 1. We heard oral this case sel staff, Academy Academy April at the for their at the Hammond and students Technology. participation. Science and We commend coun- prej January argued Lieutenant in that Larkin was Also Bullís Stacey’s alleged terviewed hairdresser and audio Sixth Amendment udiced Following recorded the conversation. transcript violation. State attached a interview, recording captured audio a of the response. At conversation its conversation between Bullís Lieutenant dismiss, hearing on Larkin’s motion to Babcock the pair which Officer dis Neary Szilagyi, Armstrong, stated pressing Kaplan Detective cussed more intern, Neary viewed “all. regarding information June 2012 inci tape.” The trial court ordered the Prosecu Stacey possibility dent with any tor’s Office submit affidavits Kaplan change Detective getting person that the video or viewed read story potential damage transcript they detail when first did *4 defenses. so. 2013, In December the State dis Neary an affidavit and stated submitted during discovery to Larkin cap closed that he the video of viewed the conversa- tured communications between Larkin and tion attorney between Larkin his and 2014, attorneys by. January his video. In January’ Neary of end 2013. stated the FBI door returned safe’s to the consulting prosecutors “After with Michigan City Department Police in one office, in the I am the Prosecutor piece bag. and in an FBI-sealed On March portion tape of who viewed 18, 2014, stipulated and Larkin conversation between the Defendant and months, the State would have or three attorney] transcript of [his and/or approximately ninety days, after Novem his conversation.” The intern also sub- try pursuant ber case its that, an affidavit and mitted stated 4(C). Criminal Indiana 2014, August portion he read 2014, April Neary In checked out the of transcript the conversation between safe’s door from the evidence room to send counsel, Szilagyi Larkin and his submit- expert, to Larkin’s Songer. Mark At the ted an affidavit and stated that he had time, the safe’s piece door remained one any portion “not videotape viewed bag. Songer inside the FBI-sealed When any portion transcript read door, however, received' the safe’s it was place a discussion took where between pieces longer broken into no three arid was attorney].” Armstrong [Larkin] [his bag. housed the FBI-sealed also submitted an affidavit and denied 2014, July In Larkin filed a motion to having any portion of “viewed the video- voluntary dismiss manslaughter tape portion or read of the tran- charge. argued videotap Larkin that the script place where a took be- discussion ing attorney his conversation with his attorney].” [Larkin] tween [his right violated his Sixth Amendment ef 2014, September a mo- Larkin filed fective July assistance On counsel. 31) disqualify tion to County LaPorte 2014, Neary Deputy Prosecuting At prosecuting Prosecutor’s Office torney Armstrong Kristina filed the pointed case him. out Larkin response State’s to Larkin’s motion to dis discrepancy Armstrong’s between affida- argued miss. The State that no new sub July vit jects filing and the 31st that she during con discussed Neary versation submitted the trial Lar- attorneys with his no court. and that requested special prosecutor evidence was kin that a disclosed derived as a Consequently, appointed. result the conversation. 2014, sup- showing October the trial court stay record pro when

pressed ceedings conversation between Lar- On 23, lifted. November 2015, attorneys, and his but the re- Larkin to disqualify Judge moved kin mainder the interview. The trial alleging court Alevizos had a conflict dismiss, Larkin’s motion to denied find- he presided interest because also over ing no prejudice recording from the of guardianship matters regarding Larkin’s the conversation between Larkin his following children his Judge arrest. Alevi- attorney. The 31, trial also denied zos recused himself December Larkin’s motion to disqualify the La- and after four judges additional either de County Porte Prosecutor’s clined or appoint Office..... recused themselves from ment months, over the Judge two next State, Larkin v. 1283-85 Patrick Blankenship County Pulaski ac 2015) (“Larkin /”) (some cepted special appointment judge on (internal original) alterations in citations February omitted). and footnote On October moved the court to certi On March moved

fy disqualify the denial of his motion 4(C), for discharge pursuant alleg prosecutor’s appointment office for the stipulated pe the State’s three-month special of a prosecutor interlocutory riod bring expired. him to trial had At a *5 appeal. trial granted The court Larkin’s later, hearing days or two trial court stayed proceedings, motion and and we pro dered the case files be redacted and accepted jurisdiction. appeal, thereafter On Despite vided to Levco. from assurances moot, argued was con State issue County the LaPorte Prosecutor’s Office tending Espar John was elected as La- that the case file would be redacted and County Porte Prosecutor November Levco, provided then the case file was 2014 (replacing Szilagyi), Espar not was prior not receiving Levco it. redacted conduct, challenged in the involved 7, 2016, On April the trial court held special prosecutor unnec therefore was hearing discharge on Larkin’s motion for essary. agreed the issue moot We was There, (“April Hearing”). parties 7 dis Id. at 1287. appeal. dismissed Larkin’s cussed issue whether the State com we recommended plied Rule Larkin orally disqualifying consider prosecutors Neary discharge. May 11, 2016, moved for On I Larkin was issued on Armstrong. a second motion for discharge Larkin filed September 30,2015. 4(C). 2016, May 20, pursuant Rule On week, Larkin following charge nioved dismiss the prior

The but to the I, voluntary manslaughter, contending certification of he the State moved could not a fair trial. appearances Neary receive withdraw addition, Armstrong. Espar moved for 9, 2016, On June the trial court held the appointment special prosecutor. of a hearing at which the appeared The trial court promptly granted all three telephone. argued previ The first appointed Stanley motions and Levco as "judge already- ous denied motion 13, special 2015, prosecutor. On October 2014, facts, dismiss and absent new judge, Bergerson, the trial court Michael previ the trial court adhere to the should County ap himself and recused Clerk alternative, ous In the the State decision. pointed Judge Thomas Alevizos. argued also for an opportunity appear I Larkin was certified on present showing November court and evidence Lar- 20, 2015, there is no kin from prejudice way but order suffer did not

242 up point. to that time past case had been of the Criminal Rule handled requirements. an day, the same the trial court issued

On granting both the motion dis order 11) go The Court did then after ahead dismiss; discharg charge motion to much discussions between [sic] counsels 4(C), trial pursuant Rule Defendant, of both the State and the set stated, June, setting a trial and the Defen- if dant wished make his record that 1) agreed That on March parties the Court determined that the Criminal [18], 2014, Indiana expired, they time had not (90 days) have would three months could do June but try November 2014 to the Defendant they they made the record that still herein, the time limits of Criminal within arguing believed and were Criminal Rule 4. spent. 4 time 2) prior expiration That to the of the 90 12) That the Court asked the Defense to limit, day a Mo- time the Defense filed theory an ulterior up come with Crim- Certify Interlocutory tion to Appeal 4, in inal Rule the event the Court found on October original position that their and time line 3) September On almost one incorrect, and there was much dis- later, year Appeals the Court issued that, cussion on and the Defendant did. n opinion. its 13) hearing, Then the June 4) Appeals opinion Court again, Criminal Rule was discussed days until almost 60 certified later parties and therein the discussed 20, 2015. November currently jurisdiction Court has of this 5) On November the Defendant the CCS since does show the *6 disqualify Judge moved to Alevizos for Appellate Court certification as ever be- cause, Judge presided, because that had part as filed CCS. presiding probate over a matter 14) position essentially, I State’s involving the minor chil- Defendant’s understand, days it is 90 [sic] could dren. begun not until the have certification. position must in The State waive that 6) appointment Special That light of the fact that the State’s own 29, Judge 2016, took February until attorneys, beginning with Arm- Deputy jurisdiction. accepted when this Court strong, Deputy Neary, filing were mo- 7) Hearing This Court held a on Status tions to withdraw and recuse themselves April 2016. on October and October 8) At that Hearing, Status the Court Esbar [sic] Prosecutor recused himself was advised the Defendant’s counsel on October a month a half and they filing that would be Criminal argues Judge before the State that a 4Rule Motion. jurisdiction of that They case. were 9) The subsequently Defendant then did relying jurisdiction on Court’s [this] and Motion, file its Criminal that and [sic], authority grant those withdraws along motion with several other motions and so that time has to run to the State. 7], argued [April at the 2016 Pre- 15) 13, 2015, Judge Berger- On October trial. himself, son Judge recused because Ber- 10) [April Pretrial, believe, At that gerson, Defen- I in 7] had been the Prose- objected to any being dant trial dates as cutor’s Office the time and had 19) case, That puts posi- worked some so the Defendant in a one, Judge Bergerson right thing, did the having go tion of number to trial him very long and it didn’t take to do it. a judge with who should have recused it before the He did case even came himself, it, have accepted should never him, so a man back how does who Alevizos, Judge which was who knew he currently jurisdiction doesn’t have over problem had a that with case. Number case, doesn’t, he recuse himself two, charged is the Defendant with the Appellate from that case before the that County fact no LaPorte certified, it, has even Court but he did get pole wanted to within a ten foot recognized and so the Court that it had say that this the Defendant jurisdiction its own to do that. that, should bear is correct as counsel 16) Judge accepted assign- Alevizos It many has stated times: should it Hearing. ment and set for a Status He speedy a choice between trial and fair accepted assignment on October both, trial. He entitled not one or 2015, again, Ap- one month before the both, the other. He is entitled have pellate opinion. Court certified their it, and as the Court sees reason no for him to There would be need got point this case to this was because accept jurisdiction of a case that he prosecuting attorney we had Mr. over, jurisdiction have if the didn’t certi- staff, Neary and we had a law triggering fication was the date Long agency enforcement Beach Law gave jurisdiction begin him But with. Agency, every- Enforcement did on, goes he he sets it for then thing in power intentionally their vio- hearing December 2015. From that late constitutional Defendant’s on, parties both point though act as rights, rights and and make it as civil County, Judge Court LaPorte Alevi- possible for him to obtain a difficult as zos, jurisdiction. has speedy trial. 17) On December there is a 20) regards position to the State’s Recuse, hearing held on Motion to waived Criminal Defendant advisement, it is taken under so the 3,May hearing, Rule 4 at Court, hearing the Motion of after Recu- it, fact, Defendant did waive sal, I saying, Judge still am still the verified that he had made the Defendant jurisdiction, I taking am *7 that his Criminal Rule 4 proper record advisement, under so the clock is still setting not that trial Motion would effect ticking here. determined, in if other in June the Court 18) alternative, if Criminal Rule it, words, if not have waived he would certification, begin did not until the the Court that the Criminal Rule found 20, from still have November 2015 to run, clearly, any in 4 had not and sce- twenty December which is to, you get nario it run. days. up again And we don’t start until acceptance jurisdiction this Court’s on 4 at 83-86. Appellant’s Appendix, Volume February Criminal Rule dismiss, to granting the motion expired May would have stated, only way get May The we would 1) to Motion is entitled Defendant get juris- is that the Court didn’t certification, Dismiss of the Article Sec- until all time because diction and 13, portion the Indiana Constitu- ran tion from there forward De- of the 6th Amendment fendant. tion and the Long Department United Constitution. Because Beach States Police after the December 2012 interview the requested the Defendant had an attor- Defendant, recording ney.. where that After request, includ- that Detective ed conversations between the engage Defendant McClintock continued to in him conversation, further, attorney, and his that was which should have immedi- ceased, compounded by .intentionally ately and then sent a second transcribing portion twelve minute officer to conduct' administrative tasks interview, though that even the court that assigned could have been reporter proper thing jailer, had done the taking finger prints, taking a it, swab, transcribing and it was done DNA not could have.been attended specific request at the by any every- the State. who jailer does that That, basis, instead, day in a they but sent 2) continually State violated detective, engaged in second who similar Amendment, once, 6th just by initial- surreptitious interrogation of Mr. Lar- it, ly recording multiple but times. Ev- kin. .ery time they made a copy that con- 7) separate is a on,

versation and individual going While this was Detective violation. recording watching Bullís Defendant’s conduct and statements. Every they .time disseminated the ¾ then, Only after watching those two inci- transcript containing that twelve minute dences, upon Detective took it Bullís portion separate was a violation of De- go himself tell Defendant fendant’s 6th rights]. Amendment[ attorney available, that his 4) The Court is going to further find engaged he further conversations is not the burden the Defen- with the Defendant. that it prove dant him caused harm. 8) tapes destroyed. Those were never The 6th a per Amendment violation is se They continue moni- viewed and violation, violation Constitutional [sic] by investigators tored by arid Taylor by Supreme and since issued State. Court, it would be the burden of the 9) prove beyond conversations, result of reasonable As a those that,

doubt violation no has adverse learned Kaplan about Detective effect Michigan [on] this. Defendant. . Depart- Police City possible knowledge ment and his of evi- 5) The Court has discussed with the that may dence be of assistance to the parties, having a Taylor hearing. Howev- Defendant his defense. er, the light Court believes that in 10) learning him, violations additional De- As a result of about -committed Bullís, Babcock, they fective subsequently :Deteetive took it upon them- MeClintqck, selves, Detective their testi- Detective Bullís and Detective Babcock, monies are all tainted shaded approach Detective Kaplan *8 that it has blatantly tamper.with fact now become testimony his in re- this gards obvious to Court that their to involving conduct incidences this case. since, at that time and has demonstrated 11) addition, there a piece was animosity an this Defendant that that to State evidence sent the FBI was everything they that overshadows do ..., safe, a the FBI that conducted its say.. investigation piece of evidence that 6) They separate conducted three sur- it to Prosecutor Neary, and returned reptitious 11 interviews at supposed provide on December who was then to to it

245 expert to to their to Defense send The State bears the burden By bringing that examine the safe. time safe defendant to trial within State, year. Bowman v one 884 gotten expert, the Defense N.E.2d (Ind. 2008), trans. de 919 Ct. App. with and tampered safe had been dam- nied. a provides may defendant aged. charge not be held a criminal for answer 12) the last known That hands greater year than one unless the safe in was the The State was State. defendant, emergency, caused custody. for responsible the chain of State, Curtis v. congestion. 948 13) it for a may possible be While Court 1143, 1148-49(Ind. 2011). N.E.2d things individually look at all these A one-year period defendant extends the may very and find that each one a have by seeking acquiescing re- on trial, small the outcome of this effect sulting in a trial A later date. defendant really analysis that is not the here. No right brought waives trial piece what will one knows evidence within period by failing to raise a on the what effect outcome have if, during period, timely objection Judge to predict trial.... And so for a beyond the trial court schedules trial at jury trial whether those one' limit. no duty defendant has single things would have ef- adverse object setting of a belated trial fect, no way knowing. I have The setting year date occurs after the way Court have no of knowing would expired. has conducted, jury actually until trial State, Pelley v. N.E.2d 498-99 jury, and then interviewed the and then added) 2009) (internal (emphasis cita- it is too late. omitted). tions 14) obligation guar- It is the Court’s reviewing for standard tidal, upon fair antee a based ruling discharge depends on a motion for totality part on the of misconduct disput trial whether the court resolved State, guarantee Court this cannot this legal facts or reached based ed conclusions a fair Defendant trial. State, on undisputed facts. Austin v. (Ind. 2013). 1027, 1039-40 If a trial Id. at This appeal 86-88. ensued. facts, disputed court resolves those find Discussion and clear error. Id. at ings Decision are reviewed legal If a 1040. trial court reaches conclu I. Criminal Rule facts, undisputed sions review based Id. novo. those conclusions de The State contends the trial court Here, granting parties stipulated erred Larkin’s motion dis 4(C). charge Specifically, under Rule it have three months after State would try it The fol period bring claims the could November Larkin. which lowing very to trial continued at the chart outlines the occurrences and least April Hearing, respective to the to us deter where claims their dates relevant any objection mining to a future three-month waived whether disagree. Hearing: expired April date. before the We *11 248 periods delay disqualify

There are three kin’s motion to the LaPorte parties dispute where the de County whether Prosecutor’s for interlocu Office Larkin, lay con is attributable court appeal tory stayed proceedings. gestion, emergency: period or for the parties dispute The whether the subse interlocutory charged appeal, and quent delay by was caused Larkin. Larkin, long no what date the was argues interlocutory appeal, an re him; er attributable to between gardless brought it is whether on behalf taking the trial court motion defendant, or the of the State tolls the change under advisement and 4(C) period. peri Rule counters recusal; Judge Alevizos’ the period charged against be od should the Rule Alevizos’ Judge between recusal 4(C) period because he would not have Judge appointment Blankenship. We sought an interlocutory appeal po but-for address each turn. prosecutorial misconduct. Both ar lice Interlocutory Appeal Delay A. guments hold merit. Delay Attribution Pelley The State cites to where our court tasked determin supreme was prior

A week November delay resulting whether pe date the State’s three-month supposed begin interlocutory riod running, appeal charge State’s denying its order period.2 certified Lar- able 901 the Rule many 2. Much Indiana's caselaw cases also address the these same properly phrases delays charged issues as whether can issue of whether the can be defendant, State, E.g., Harrington attributed to caused acts the State. v. (Ind. 1992). congestion, emergency. App. court N.E.2d Ct. This court 494. The first acknowl by citing counters to Har edged State, provides exceptions rington v. 588 N.E.2d defendant, emergen 1992). caused There, acts parties disputed cy, congestion, clearly 317-day whether a delay, which com interlocutory appeal brought on behalf *12 menced with the moving defendant for the the not any State did fall these under appointment of special prosecutor a and a exceptions. Despite the the fact defendant subsequent .continuance, motion for a was delay, did cause the the court conclud by chargeable caused the defendant and to delay against the be charged ed could not him. argued The State this was 4(C) period, the Rule reasoning, chargeable to the defendant because the proceedings When court -have been trial delay by was caused the defendant’s acts. stayed pending resolution of the State’s The delay defendant blamed the -on the interlocutory the trial court appeal, loses State, claiming special prosecutor a was jurisdiction to try the defendant and has necessary prosecutor pre because the ability speed appellate process. no to the viously in served as his counsel a criminal practical matter, a applying As the matter. 4(C) one-year require- Criminal Rule outset, noted, At the we interlocutory to appeals ment would ren- appeal by impossible der Any delay prosecutor’s resulting from a it in all trigger because would likelihood conflict, if delay technically re even mandatory discharge of a. the defendant. motion to con sults from a defendant’s tinue, at 499. in chargeable Id. The court further clarified is a to State. State[, general Biggs sense “that the time for interlocu- v. 546 N.E.2d tory 4(C)’s 1989),] appeal acknowledged, is from Rule excluded we pro- general, limitation the trial court chargeable when “a defendant ceedings stayed.” delay have been Id. with by at 500. occasioned his re own Therefore, delay quest because occasioned continuance.” a a by interlocutory appeal charged, the State’s cannot be defendant with the act, by the con- caused court if defendant’s made defendant motion gestion, or emergency, Pelley comply because to created at the State failed with a exception least a discovery request. limited common-law to at See 1275. We id. 4(C): Rule trial proceedings following explanation when court for this offered stayed following exception general “[Putting] are certification an in- to the rule: order, terlocutory subsequent delay position whereby they a defendants 4(C) to charged period. go unprepared cannot be to trial must either due failure, Here, court, request, to respond the trial to to dis State’s denying covery certified its requests rights order Larkin’s motion or their waive trial, disqualify prosecutor’s put a speedy office is to defendants Id., stayed proceedings pending appeal. in an untenable situation.” defendant, phrasing given congestion, emergency some makes sense fact the court 4(C) timely trying maintains the charged period, burden to the Rule not the State. pursuant Therefore, case a defendant any delay we address not caused 4(C). However, we also note Rule makes defendant, congestion, the acts of determining no reference to whether emergency, excep- other common-law such, delay,-and caused a as such think tion, 499-500, Pelley, see N.E.2d at phrasing appears punish the State. The delays chargeable period. to the Rule any delay rule makes clear not caused (some opportunity Larkin and the trial court the Harrington, 588 N.E.2d at 511 al ratio original). Relying proceed with the case. Stated different teration provided Biggs, we concluded the it ly, following Hamngton nale would make chargeable to the Rule timely bring for the State to impossible reasoning, period, Sensibly, Larkin to one counter trial. could by noting this it is the burden point State’s Just as a defendant should not have trial, bring and we defendant trial and a fair speedy choose between Hamngton to follow failing a result of to were trial as the State’s order, message to prosecutor’s would send a clear comply discovery defen- they identify must con not be to choose be- offices and cure dant should forced speedy losing opportunities a fair trial as a flicts or risk their tween a *13 prosecutor’s try following Hamngton failure to iden- result the cases. tify cure his conflicts. in this case would have additional conse and quences. ability first note there is no We Therefore, appears to cre- Hamngton Id. predict may amount of appeal the time an exception a to acts ate limited common-law trial court parties take and neither the nor by a defendant the are caused when acts delay. to a case have control over that necessary for a fair trial a result of a Here, nearly year it a from was the time Here, prosecutors conflict. prosecutor’s trial court its order for the certified inter County the LaPorte Prosecutor’s Office I locutory appeal until Larkin issued was Larkin clearly had a conflict at the time delays charged and we interlocu disqualify the office from the moved 4(C) period, appeals to the Rule de tory case. successfully fendants could often seek dis above, Pelley and As demonstrated charge regardless the merit of their strongly Hamngton support parties’ each This, turn, interlocutory claim.3 would persuasive and both contentions cases are influence the exercise of trial court’s hand, an On the is extent. one certify interlocutory discretion orders interlocutory correct the certification likely deprive would appeal and defen stay of proceedings deprives order and opportunity for an dants the immediate jurisdiction, Pelley trial court and ruling. appeal an adverse conclude We charged delay makes clear the cannot be Pelley controlling regarding of the issue 4(C) period. the Rule On the other interlocutory appeal Larkin’s and there however, hand, prosecutors in LaPorte delay chargeable fore the to Larkin. County Prosecutor’s Office had a conflict Delay 2. Extent of they timely identify cure failed and appears to Harrington any dictate subse parties dispute next quent delay prosecutor’s from a conflict is length delay. Specifically, par chargeable period. to the Rule agree tolling ties commenced No 2014, disagree Ultimately, we find the rationale vember but as to when pro running. In underlying policy considerations resumed Pelley determining delay the extent of controlling. are The fact caused vided defendant, stayed request proceed case-by- on a proceedings Curtis, of Larkin from the case basis. 948 N.E.2d at 1150. removes necessary dependent on likely In is not whether act 3. such would "the causing justifiable then was or meritori- for courts to determine whether Grow, meritorious, as our State v. 255 Ind. claim of conflict was ous.” (1970). clear, application case law makes of Rule certified; argues actions he believes indicate the The State ended jurisdiction I the date Larkin reassumed and the on November In to the trial court’s support, the State cites State submitted itself was certified. addition, 65(E), Appellate pro jurisdiction. which he also cites to Indiana court, vides, prior to “The trial Administrative actions certification any Agency, parties essentially shall not take conceded issues the or trans upon opinion parties rehearing could raise on action reliance Therefore, clock opinion fer. Larkin claims the be memorandum decision until early gan running point is certified.” See at some October memorandum decision . agree Larkin. Rogers Grp., also Inc. v. Diamond Build We ers, LLC, 833 N.E.2d I, appealed Larkin 2005) (“[T]he Clerk’s certification disqualify pros of his motion to denial appellate signals parties decisions appointment office for the of a ecutor’s- ”). ‘final.’ a decision is such special prosecutor. September On acknowledges appeal the date of after deter we dismissed mining be the the issue moot because while typically certification would earliest Espar juris pending appeal, the trial court reassume the case was date should stay proceedings. county prosecutor, lift the as the new re diction and elected *14 Thereafter, However, Szilagyi. following not a the typical placing he counters this is by prior in the trial court case and cites to numerous actions the events occurred occurring shortly trial court to the certification of Larkin I on Novem and the State 20, I, it was 2015: after we issued Larkin but before ber events, the trial court’s acts light of these it is clear the State’s and stay. amount to a lift immediately submitted itself to constructive the State State, not Lar- importantly, trial court trial court immedi more the the and the And kin, special appointment ately impression it had moved the acted under the 2015, 6, approxi on Although prosecutor is no date October jurisdiction. there mately prior six to certification. indicating stay record when the weeks act, effect, lifted, any issues explicitly it is clear resolved proceedings This rehearing or all may have raised on likelihood Larkin would seek transfer of finali- purpose transfer satisfied the on this issue it—not Larkin— because 65(E). Thus, Appellate. special prosecutor. ty underlying appoint Our Rule moved State, by October submitted review of the record indicates State’s trial-court, Ap and the trial court’s actions itself to satisfied 65(E). if it jurisdiction, pellate acted as and the Rule had. n moved áppoint special prosecutor Third, the dissent asserts our con resolving thereby is- any appellate further clusion that the ended October sues. We conclude this ended penalize appears “improperly 2015,. October and thereafter the .time in fact the of mov State” when State’s act began running against peri- the Rule special prosecutor for a benefitted Lar- od. kin an “expedited because act such disagrees [Larkin 7] progress dissent with this of the case con once ¶ First, three disagree. clusion on 54. Op. bases. believes certified.” at' As We by actions the trial court help State and is not written to noted early suscepti are punish October voidable and the State. The rule addresses to ratification. delay stops ble The dissent therefore whether a the Rule time addition, essentially .running. believes Larkin plainly ratified. rule these failing object. actions maintains the burden provides motion,- explained bringing October to trial ensure defendant supra See Therefore, the trial court motions note the State’s timeliness. premature action that our assertion decision dissent’s penalizes addressing of the State’s merits accord with 4(C). motions Al See id. premature. plain language would also be As though the motion specifically to the does dissent’s assertion State’s ac *15 mention word “objection,” expedited thereby the it is clear tions case the benefit- Larkirí, Larkin objecting ting reemphasize inquiry was to the State’s and the we the is trial court’s actions. not State whether the was harmed the benefit, defendant incurred but rather is Second-,the de dissent the believes 4(C) stopped. when the Rule time lay not could have ended on October sum, because in 14 mo proceeded the same October the after above, I tion Larkin was explained noted Larkin he was as if im under the issued contemplating filing running for clock petition pression against transfer. the was the 4(C) Larkin I However, period the issues-raised act filing and the of of impact addressed the denial Larkin’s mo motions limited the on early tion to disqualify County period. LaPorte cannot The State have its cake and appoint special claiming Prosecutor’s Office and to too in now this eat time should prosecutor. disqualify chargeable solely Larkin’s motion to be on Larkin. Based prosecutor’s unique office moot set facts and was because circumstances attorney period the interim a in this for prosecuting new we conclude Therefore, interlocutory appeal charged against had elected. this would been- 5, 2014, not on be raise transfer. The Larkin issue between November 6, 2015, only issue potentially sixty-five available .and the next October (until days change judge hearing) on transfer would have the denial been 4(C) motion appoint special prosecutor. against ran the Rule period. the clock Therefore, assuming peri on But October the State removed even the other chargeable dispute control ods are should and dictates from 4(C) Larkin, period expired on change the Rule his motion for of judge,be charged 26, 2016, days 4(C) period March two before Larkin to the Rule because Larkin reason, discharge. For placed position moved this we not in a should of choos ing need waived timely address between a fair or trial. whether We April Hearing agree his claim the because with Lárkin. period already

the Rule run time Below, the trial Judge court found by that The did err date. accepted Alevizos never should have ap concluding Larkin was entitled dis pointment special judge very as at the charge pursuant 4(C). to Rule This conclu least immediately should have recused sion to affirm the is sufficient trial court. himself to a conflict. Although due the trial opt to further into delve court did not note details-of the conflict in 4(C) analysis given complicated nature its findings, revealing. record Fol appeal. proceed therefore We under arrest, lowing Stacey’s death Larkin’s assumption the State is correct sister, Carroll, Dorothy Larkin’s Denise interlocutory tolled the Rule appeal Illinois, licensed attorney granted period on until certification November legal custody physical of Larkin’s chil dren guardian and acted of the chil Judge Delay Change B. Motion for dren’s estates and trustee their trusts. At point, sought approval some Carroll parties dispute

The do not Alevizos, from Judge presiding judge 20, 2015, period November between matters, over purchase the familial Lar- 10, 2015, December ran twenty days, money kin’s home with the children’s period thereby the Rule purpose for the of allowing trusts the chil bringing remaining period the State’s dren to continue to live in the home. We try approximately seventy days.4 Larkin to previously por summarized the relevant however, parties dispute, The do whether hearing petitidn: tions of a on Carroll’s hearing with the on beginning change motion for presented testimony Carroll of Toni (“Henke-Wheeler”), Judge December Alevizos’ who Henke-Wheeler charge provided family recusal December and individual counsel- argues able to Larkin. it was to the tes- Children. Henke-Wheeler *16 moving change judge dealing Larkin’s act of of that the Children tified delay. argu grief stemming that the caused Similar to the death of above, mother, Harrington ment Larkin counters their their father’s role alleged 10, 2015, agree day 4. The does dissent not this issue is December the the trial court undisputed Appellant’s hearing and cites to both held a on the motion took the the briefs, Reply Appellant Brief of the and the Brief matter under In its the advisement. delay appears specifically challenge where the State to not this find- assert does resulting change ing, from Larkin’s motion for nor the State cite to circum- does judge began showing filing on November the date in of the stances the record acknowledge any delay prior he filed the motion. We motion caused to the trial taking filed his on this date and further matter under motion note court advisement Yet, by assuming supports the caselaw cited the dissent December 2015. even delay charged delay began notion the should be from the the dis- on November change delay chargeable date the files defendant its motion for reveals is cussion below judge. unique because of Rule and therefore the agree. facts of this we cannot The trial State still failed to meet dead- begin found the not until court .did line. 3. n More not, mother, importantly, did [Carroll] of theii' and the in death capacity representa as during personal mother in her “loss” their perceived (her tive/Guardian, to her part of her life due file a lawsuit the latter brother) Larkin, problems. When is substance abuse John who the individ “al- referred of the charged ual with the homicide Henke-Wheeler in played (and the death leged” role Larkin dece mother the Estate’s1 wards’ mother, dent). appears the Children’s It the statute interrupted her and stated: for her to passed has now limitations attempt bring this time. isn’t al- suit at involvement [“]So the—the of the involvement is The nature leged. ¶ (citation (alterations original) at 12 Id. my Is understand- what’s issue. omitted). Following the show cause hear- you don’t case? So criminal an order re- ing, Judge Alevizos entered alleged to [use] there.[”] need moving of the chil- guardian Carroll as was then cross-exam- Henke-Wheeler of the children’s dren’s estates and trustee counsel, asked the ined who the trial appeal, trusts. On we reversed fact that the chil- question, “Given the ¶ entirety. Id. at 30. court’s order its parent, their now have one dren reported Judge also later Carroll Alevizos father, opinion, he is removed your al- Disciplinary Illinois Commission impact what presence, would from their leging misrepresenta- Carroll made false have on the children?” Be- his absence tions, but the record unclear as respond, could fore Henke-Wheeler Judge surrounding circumstances Alevizos’ objected sponte, stating sua II allegations. Transcript, at 5. See Volume object. You have to don’t “It’s irrelevant. above, general As rule is noted - It’s irrelevant.” causing delay are acts defendant K.K.L., 46A04- Guardianship In re No. him, here, charged moved ¶ 1507-GU-921, 394, slip op. change followed 2016) (alterations Apr. court took the matter ad the trial under (citations added) omit original) (emphasis Harrington Alternatively, dic visement. ted). then Carroll’s Judge Alevizos denied not tates a “defendant be forced should appeal Carroll not this order. petition. did speedy choose trial and a fair between later, the trial court sua A week prosecutor’s trial as a result of the failure appear sponte ordered Carroll show identify and cure his conflicts.” Har why as to should be removed cause she 511. rington, 588 N.E.2d at The difference guardian as the the Children’s estates. Harrington this case is this between following rea- The trial court cited a judicial also addresses conflict. De case for its order: sons difference, spite this we find the factual Chronological from the appears It reasoning Harrington persuasive. To be Summary [Carroll] Case has clear, exceptions only provides *17 accounting; an filed bringing of a to the State’s burden defen timely to trial in a manner. Those petition caused to be filed dant [Carroll] exceptions merely speak by to acts a de purchase the wards’ trust her have fendant, brother, Larkin’s, congestion, or court emergency, house. The John any language include this as and the rule does not Court finds evidence that she judicial in or con pertaining prosecutorial more interested her brother’s fiducia- interest; recognizes fiduciary Harrington flicts of an ry interest than the interests conflicts, exception prosecutorial of the wards.

255 recognizes exception judi unavailability judge this an of a properly case who can has a prosecutor cial conflicts.5 Just as a exigent hear a case is an circumstance conflicts, duty identify and cure Canon qualifies which as court congestion and Con 2.11 the Indiana Code Judicial running tolls the Crim.R. time provides part, judge in “A duct relevant period.” (relying Id. 13 supreme our disqualify in shall himself herself State, court’s decision v. Morrison impartiali proceeding judge’s which the (Ind. 1990)). N.E.2d 458 Larkin believes ” ty might reasonably questioned.... delay charged should be to the Rule us, light And in before the record 4(C) period delay because the “was caused objective person reasonably have could by control, beyond circumstances questioned Judge impartiality. Alevizos’ i.e., procedure the trial court’s erroneous Therefore, Harring like the defendant in for selecting a judge new and the conflicts ton, placed Larkin was an untenable misconduct, by created the State’s not situation. Larkin was forced choose be Appellee’s Larkin.” Brief at 34. Larkin presided tween a trial timely and a State, Young cites to v. 521 N.E.2d by a judge prejudice over a taint of with (Ind. 1988), supreme where our court and bias. Our state constitu federal and attributing delay was tasked with occa timely tions demand defendants receive resig sioned the defendant’s counsel’s above, judges. trials As impartial noted nation from public defender’s office merely delay arguendo, we address this concluded could not be defendant delay twenty-one but we conclude charged delay with the because not he did 10, 2015, days between December to De attorney’s resignation. cause his Given the' chargeable cember to the Rule case, agree facts of this Larkin. Larkin, period, leaving hearing At the December forty-nine days in the Rule change judge, Judge Larkin’s motion for bring Larkin to trial. parties every remain Alevizos warned Appointment Special C. County judge a conflict of LaPorte Delay Judge preside interest and would be able to parties dispute next case if over the he recused. He further fifty-nine day delay from December explained require County this would February appointing judge judge to seek a senior Clerk special judge. light of our conclusion the county. Judge from another Alevizos’ motion for delay resulting from Larkin’s statements were consistent with LaPorte change judge chargeable to the Rule 2.2, County’s pro Local Rule 46-CR which 4(C) period, fifty- the State contends this County judge vides no LaPorte is able nine-delay chargeable is not to the Rule County hear Clerk shall select 4(C) period falls because under contiguous Howev counties. congestion exception. Specifical er, provides, Rule 46-CR 2.2 further State, ly, it cites to Henderson v. 1995), judicial cases which no full-time de N.E.2d 7 trans. nied, “delay eligible special where we held a due to the officer is serve as acknowledge jurisdiction Pelley 5. We to follow and therefore decision Har- controlled. Here, rington may appear stay proceedings; at first blush to be contra- was no rath- there dictory Harring- opted er, since we not to follow through resulted from a conflict addressing interlocutory delay. when ton Harrington is no of Larkin and therefore fault clear, *18 delay interlocutory To be the from the controlling present as to the issue. appeal completely deprived the trial court of we-may only of particular though speculate, or the circumstances we have

judge, selection of a special warrants the court supreme a case little doubt would have Court, judge by Supreme Indiana special judge given the the promptly a selected sitting judge regular the under Criminal Judge-Alevizos, of nature this case. howev- 13(D) may certify the case to Rule er, route, a more a inefficient selected appointment of Supreme Court route he knew or known should have would special judge. delay. cause an abnormal We conclude the added.) particular of do circumstances this case In his- December 31 (Emphasis finding the fifty-nine- not warrant change motion for granting Order congestion the court day delay falls under judge, Judge directed the Alevizos Again, merely to this County exception. “select a successor address Clerk pursuant Appellant’s arguendo, delay we conclude to Local Rules.” but then, The 2 at Clerk App., County fifty-nine days 89. December Vol. between own, through of his or pro- 29, 2016, no her February fault is chargeable 4(C) to judges Larkin, ceeded select five different over period, to the leav- Rule period. a two-month no time. the State with more record, Upon this unique review sum, crux the' the' State’s Judge have Alevizos should certified this 4(C) is Rule contention appointment special case for of a yet expired by April The Hearing. Judge judge. Even as Alevizos wrote interlocutory from the is appeal order, the December 31 Larkin, chargeable began to but the time full [T]his is matter of circumstances 4(C) running against period again the Rule to per- be known which reasonable on October leaving with son, enough appreciate to competent all ninety days. Although to we conclude above, find; fact, be hard to would assuming contrary, following even de likely quite is those Larkin, lays chargeable authority to review the decision of this period expired March On today competent. would so hand, other chance the Rule Therefore, save any this matter period did not run begin fur- until Novem delays ther ensure sense period expired ber overly bias removed com- from in the of February already middle as we circumstances, plicated set the Court delays charged concluded latter are GRANT the motion for recusal. will 4(C) period. prop the Rule The trial court Larkin, added). Thus, (emphasis Id. even erly discharged at 88 Judge recognized Alevizos in his own II. Motion Dismiss6 words, cir- implicitly, particular albeit A. Standard Review special in this case cumstances warranted addition, rtil- We review a trial court’s treatment. he based his ruling ing on a motion to part on his dismiss a charging desire save matter however, for an delay; information abuse discretion. An further this did not abuse of appropriate discretion occurs when the occur. action would have certify supreme clearly logic been to the case our court’s decision special judge, court to al- appoint facts and effect circumstances 6. We note this case is resolved the out- address State’s misconduct as well- issue, discharge opt come of the but we

257 generally it. A court evidence “is before trial also abuses its admissible misinterprets the when it a ... prosecution discretion law. absent evidence exception” recognized to the rule. One State, An-Hung Yao v. N.E.2d 975 exception discovery such is the “ultimate (Ind. (citations 2012) internal and 1276 exception,” applies when the State which omitted). quotation marks “by can a preponderance show B. Fair Trial evidence” that it independent had an The State trial contends the evidence, discovering source for the' dismissing court abused its discretion , applied Here the court exception charge against Larkin on the basis the other various and neither exhibits. Spe trial. Larkin could receive a fair party challenges “indepen- the court’s cifically, acknowledges presumption it findings. dent source” prejudice attached due the eaves The State’s advantage, second unfair dropping, court but claims the trial erred however—learning strategy—is defense holding hearing in not the State at which more insidious and therefore warrants present pre could evidence to rebut stringent remedy. unique and more Hav- sumption Taylor, pursuant State v. Taylor’s strategic “playbook,” stolen (Ind. 2016). N.E.3d asserts tainted can preemptively witnesses Taylor controlling is not because the mis n shade testimony to undermine their in this case greater conduct is far Shading testimony on ill- strategy. .based Schmitt, akin to more State v. N.E.2d insight gotten strategic is more difficult 2009), trans. de detect, just damaging but agree nied. Larkin. We proceeding. fairness of an adversarial police prose Taylor, officers Unfortunately, which the the extent eavesdropped on a cutors conversation be Taylor .by capi- State actually prejudiced attorney tween a defendant is, in talizing advantages these both Fifth police pleaded the- officers words, fog in a “shrouded State’s questioned Amendment when about considering the uncertainty,” especially supreme our eavesdropping. The issue for what was officers’ to reveal over- refusal court was whether blanket suppression and whom. heard police testimony officers’ was the (alteration emphasis Id. at 1027-28 proper remedy to cure the constitutional omitted). Therefore, (citations original) explained court violation. The first such learned addressing the fact presumption there is circumstances strategy, court defense defendant’s , presumption prejudice, but rebutta- should bear burden held the State ble. 49 at 1024. offi Because the testimonial, or disproving prejudice from (location tangible cers learned of both stemming intangible, evidence evidence) (defense intangible strategy) beyond a reasonable doubt. Id. misconduct while, court eavesdropping, evidence addition, the State must be noted as follows: given opportunity a full meet that-.bur- eavesdropping gives .The here the State Therefore, here claims den. Id. advantages. learning unfair One is two. giving trial erred in not it a full the whereabouts of evidence would not opportunity disprov- to meet its burden discover, handgun. like the otherwise ing prejudice to Larkin. that prej- court here addressed rule, exclusionary Comparatively, udice Larkin cites applying the There, unconstitutionally appealed under which seized Schmitt. *20 supreme to the court was tasked with trial court’s decision sanction State establish ing a limited framework to allow the dismissing charges against the defen- State disprove to taint opportunity the from comply the failed to dant because State Here, in eavesdropping. and stark con appeal, the discovery order. On (cid:127)with 1) initially deprived trast: law enforcement charges was argued State dismissal opportunity speak Larkin of the to to his noted, remedy. proper not the We 2) Neary attorney, and law enforcement to judge responsibility A trial has the privileged communica recorded trial in a manner that facili- direct the 3) attorney, learning after tions with truth, tates the ascertainment of ensures recorded, had been communications fairness, economy of time and obtains Neary recording had the transcribed and rights with the and effort commensurate disseminated, 4) Neary Armstrong and society the criminal defendant. conflicting statements about had made who has a failure to com- Where there been transcript of seen the video and/or ply discovery procedures, the trial with 5) video, tampered the safe’s door was with judge usually position is in the best having prior opportunity the dictates fundamental determine 6) it, examine Detective Babcock ex any resulting harm fairness and whether an intent to pressed Kap- force Detective satisfactorily can be eliminated or allevi- change regarding lan to his story Stacey’s given ... ated. The trial court must be episode in the alleged suicidal summer in discretionary discovery wide latitude 7) a non-redacted case file was duty promote matters since has the provided newly appointed Special Prose discovery guide truth and to .of despite the trial cutor Levco court order proceedings, control be and will ing Special Prosecutor Levco receive in granted assessing what deference Clearly, a redacted case file. the miscon compliance substantial constitutes with Taylor, duct here far exceeds found discovery orders. given disparity, Taylor cannot assuming Taylor control. Even control the State’s actions were deliber- Where ling, argument the State’s still fails. As the prevented a ate and the conduct fair acknowledges, “On June measure, trial, a more extreme remedial hearing trial court held a at which the evidence, may as the exclusion of such appeared by telephone.” Ap Brief of employed. charges Dismissal of During pellant hearing, par at 20. also a sanction within the arsenal ties discussed Larkin’s motion dismiss. dealing the failure of point, At one its noted desire prosecution to afford defense hearing have the court hold an additional or- evidentiary access to materials as present disprove so it could evidence In determining whether dismissal dered. prejudice. express we two con proper, the court should consider First, cerns to this issue. at oral relevant or in whether the breach was intentional argument, suggested Levco he preju- bad faith and whether substantial recording privileged viewed the dice resulted. communications, but the same breath (alteration origi- 915 N.E.2d at 522-23 argued Taylor hearing necessary nal) (citations omitted). prej because he did not believe there was outset, emphasize At udicial information contained the re Taylor cording already misconduct identified in was eaves was not known comments, dropping, only eavesdropping, light and our other sources. of these another, Levco, the several acts misconduct were way one us apparent it is least, faith, done, very there is of the information because bad learned way confidently make no other he could severely prejudiced such acts Larkin to Therefore, fact Lev- these statements. a fair trial. the extent he could receive knowledge of the contents co had pub actions here threaten the State’s *21 prejudicial to is even more communications system. justice lic trust in our criminal Larkin as it extends the taint the State’s This not tolerated. cannot and will be We prose- to the man misconduct tasked not conclude the trial court abuse its did in a of taint. cuting Larkin tribunal free motion to granting discretion Second, our shows the review the record dismiss. no after the trial prove made offer Conclusion request the State’s to hold a court declined in grant trial did not err The court “An Taylor hearing. prove offer to is the ing discharge for and mo Larkin’s motion places by which counsel before the method Accordingly, tion to we affirm the dismiss. (and ultimately reviewing judgment. trial court’s court) evidence he or she wishes to allow the court determine present, Affirmed. relevancy admissibility of the pro- State, testimony.” Arhelger v. posed J., Riléy, concurs. 1999). -We of this think the circumstances under Barnes, J., opinion. dissents with required to make an offer to Barnes, Judge, dissenting. prove regarding additional evidence - present. did wished Because I respectfully I am well dissent. prove, offer to we have not not make an highly-questionable conduct aware provided adequate record de- been of the LaPorte engaged members preju- termine whether the State suffered en County Prosecutor’s Office and law trial court erred in not dice even community on more than one forcement Taylor hearing. holding a occasion, having opin authored this court’s acknowledge further Schmitt Taylor. We I ions in both Larkin Howev directly as it ad point also not er, speedy I cannot conclude that Larkin’s for violations dressed sanctions deliberate Rute'4(C) rights under Criminal trial this, discovery Despite orders. find violated, properly nor that the trial court language persuasive its and relevant motion to on constitu granted his dismiss Here, at hand. court was question grounds. tional trial, a fair position in the best ensure I. Criminal Rule clearly grant in its as it stated order majority regarding I from the differ dismiss, “It Larkin’s motion to is the periods of several of time to its attribution trial, fair obligation guarantee Court’s Larkin. clock rather than to the Rule upon totality of misconduct and based First, agree majori I fully white with the State, this Court part on the cannot ty’s analysis that the time which Ap this Defendant a fair trial.” guarantee I interlocutory appeal although App., 4 at 88. And pellant’s Vol. Larkin, I con pending was attributable specific trial court did not enter find expire time until the clude did ings as to the misconduct was whether of this court our decision deliberately faith or certified or bad wheth clerk done resulted, final on prejudice it is clear November er substantial 65(E) states Appellate appeal Indiana trial court’s actions while an part: pending may “jurisdictional” raise -Clerk, problem may not and such actions certify opinion. shall or State, “void.” See K.S. v. 849 N.E.2d trial, memorandum decision to the (Ind. 2006) (holding judgments Agency only or Administrative after the aby subject entered court having matter Rehearing, time for. all Petitions personal jurisdiction void). are not Transfer,, expired,, .has unless Review However, I still believe such actions are all parties request earlier certifica- procedural least based on clear “voidable” Supreme tion. Court trans- grants If error. action that An is “voidable” review, has certify fer or the Clerk shall not imperfection defect or that can be cured decision opinion memorandum by the ratification or confirmation of a disposition by Supreme *22 until final party advantage who could have taken of court, The trial Court. Administrative A., In re Guardianship A. J. take defect.. Agency, parties any and shall not of 110, 114 (Ind. 2013). 991 N.E.2d upon in opinion action reliance or opinion memorandum decision until the object any Larkin to Had decided to or decision is certified. memorandum of premature actions or It has been said that trial courts lack I judge, believe have there would “jurisdiction” perform any in action a no choice objec been but sustain such case judgment while an a final appeal so, not do tions. He did but rather essen pending, except Tor. ministerial tasks such tially premature ratified the actions. costs, record, as reassessing correcting the case, any prosecutors the actions of the enforcing or judgment. Paternity a In re judge withdrawing recusing and trial V.A., 65, (Ind. 10 67-68, n.1 N.E.3d Ct. seeking appointment special of a pros and 2014). App. also See v. Kessler ecutor before our decision in I Larkin was Pflederer wood, Ass’n, Inc., 510, Lake 878 N.E.2d 514 benefit, certified inured (Ind. 2007) App. Ct. (holding that issue of they terms of the period: time costs imposed and fees to be based expedited the progress of the casé once wrongful injunction issuance of was not opinion was improp our It certified. would ripe until appellate decision was certified erly penalize re say the State to that it final); State, as v. Hancock 786 N.E.2d started the Rule clock before certifi 2003) (Ind. (hold App, Ct. n.1 cation of our Larkin I I opinion. also note ing trial resentencing court’s action in de that, parties in agreement that following fendant appeal remand on before one rehearing, no would seek transfer or appellate decision was certified as final they jointly have could asked this court premature “was be considered should certify opinion our before the official time nullity”). as a period passed, for certification had but

I that supreme they’ concede our Perhaps did do so. Larkin was years recent has considering filing rehearing narrowed the definition of a or transfer See, appellate-“jurisdiction.” e.g., In re petition D.J. after appeal as dismissed Corr., 574, Dep’t v. Indiana 68 N.E.3d moot wanted the full amount of time (Ind. 2017); O.R., In re Adoption 579 16 to Additionally, consider whether to so.7 do (Ind. 2014). possible 970 It is it highly would have been for inadvisable response In an considering filing October he was still a transfer request appoint special prosecu- State's petition, tor, attorney represent Larkin's did fact essence, attempted argues to him. In to have sched- able Larkin the trial court majority agrees Judge date before it clear that Alevizos ule new trial patently-obvious recusing I final. Conse- our Larkin reason decision was. having presided I time on his quently, guard based over a believe until. 20, 2015,. chargeable ianship involving November case Larkin’s children purposes. for Rule his sister. neither majority nor the have cited a case where Next, I address the associated required recusal was circumstances under requesting the with Larkin recusal here, any similar to those nor Rule of Judge from the Alevizos case unequivocally Judicial man Conduct appointment Judge Blanken eventual Judge dated Alevizos’s recusal. “The law special judge February ship as presumes judge unpreju is unbiased and I 2016.8 find that the well-set caselaw is State, diced.” v. 926 N.E.2d Patterson point: tled on this occasioned 2010). the absence change motion defendant’s rule, precedent such clear I would not chargeable to the defendant under say Judge immediately Alevizos had 4(C). ex Brown v. See State rel. Hancock automatically In any recuse himself. Court, 546, 547-48, Superior Cty. 267 Ind. noted, previously not matter does (1978); Grow, v. 372 N.E.2d *23 good Larkin had- whether reason ask for 277, 185, 183, 255 Ind. 263 278 - recusal; Judge for Alevizos’s the time State, 7, (1970); Henderson v. 647 N.E.2d request chargeable with associated that is 1995) (describing de 13-14 sum, I to Larkin. In time conclude the lay by finding quali special judge caused change period Larkin’s motion for between conges fied hear case as due “court 23, 2015, judge Judge on-November and tion”), does not trans. denied. It matter Blankenship’s acceptance of the case change request that for a the defendant’s 2016, 29, February against did not count “justifiable or meritorious.” 4(C) period. Rule time Grow, 185, 255 Ind. at 263 N.E.2d at 278. finding Grow, period of delay In that, per the State concedes The months; qualified special judge was six interlocutory agreement before the parties’ Brown, it was sixteen both months. ninety days it from the appeal, had date cases, supreme our court found the entire opinion of our I certification Larkin ty delays chargeable the' defen Larkin, delays try aside which dants. congestion. By or to him court attributable calculations, Judge my also this in a latest Larkin contends results 26, May to ac trial 2016—-with agreed possible Alevizos never should have date recommencing or clock cept presiding at least the Rule No over 20, immediately being himself -2015 and tolled have vember then should recused 23, 10, February hearing after re 2015 and between November December recusal, 29, Judge eventually 2016. The trial sched garding and the 20, 2016. The agreeing step begin until trial to on June Alevizos not aside uled 2015, 31, charge question whether Larkin waived December should be states, appears position parties, reply to take the majority “The do not briefs 8. The dispute period begin- between November that Larkin tolled the Rule 10, 2015, twenty December he ning on November when filed days, against period....” ran the Rule change judgé. motion However, opening Op. p. 253. the State in its that, agree emphasize although I with the I Criminal objection to this trial date. duty on the places Rule affirmative that he did. defendant-trial, speedily bring April the trial court On provide is not intended to defendants this, pre-trial hearing. Before conducted to avoid trial. technical means Cundiff v. already had filed a motion dis (Ind. 2012). State, I 967 N.E.2d 4(C), contending charge under may doing just think that. I This already passed. for trial time trial .preferred hold that the court’s would hearing but motion was discussed at the trial did not violate date June Also, upon. not ruled defense counsel 4(C). rights under Criminal prosecutor possible special discussed II. Motion to Dismiss dates, special prosecutor offered .trial Next, I the trial court address May in early-to-mid trial dates possible majority’s conclusion alternative counsel, however, represent 2016. Defense police prosecutors war misconduct that, trial court if in fact it ed to the outright against rants dismissal the case eventually ruled Larkin’s dis disputes pros Larkin. No one that certain motion, begin charge he would rather egre ecutors law enforcement officers 20, 2016. trial on June Defense counsel giously Larkin’s constitutional violated waiving any that he indicated further rights. supreme our court ad speedy argument trial as to a trial on that extremely similar misconduct in dressed for the rec date. The clarified Taylor and refused to conclude out ord, agreed: to which defense counsel “He right suppression of all the dismissal it, extent, he it to I waives waives required. State’s evidence understand, already that he has made Taylor, sup court had has run.” record that the time Tr. 4/7/2016 *24 pressed testimony any all from officer who p. 85. eavesdropped privi had on the defendant’s rule, general “As a when defen leged lawyer, communications with his delay, in a acquiesces seeks or the which communications loca dant revealed the by weapon. supreme 4 tion of Our time limitations Criminal Rule are the murder set delay.” ruling, ultimately of court reversed this hold by length extended ing: Black, v. 507 2009). agrees When a defendant to a presumption prej- that a of We conclude 4(C) udice, limit by

trial date outside Rule time proof beyond rebuttable expired, doubt; limit before that time adequately protects has reasonable right Taylor waives his her from the of- prejudice defendant caused Here, discharged. Id. at 509. ficers’ eavesdropping defense coun and their assertion sel, April hearing, privilege of the Fifth about at the made Amendment Thus, (1) prospectively impos- their trial court both that actions. quite clear 4(C) testimony all suppression blanket period he believed the Rule time had (2) not, the Fifth pleading if it witnesses expired, any but he waived inappropriate. Amendment complaint beginning My analysis on June is that the suppression We reverse the blanket expire time did not until who testimony from witnesses invoke hence, 2016; May any Larkin waived the Fifth and remand with Amendment beginning pre- claim that a trial June instructions determine as to each 4(C) period. sumptively 2016 exceeded the Rule tainted whether the witness egregious here are much than proven beyond reasonable so more has Taylor independent they outright that source dismissal doubt event, testimony implicating appropriate remedy. any without is an witness’s privi- Fifth Amendment Taylor spoke possibility the witness’s that a case derogating lege—and therefore without eavesdropping egregious could be so right The trial Taylor’s of confrontation. suppression outright eaves discretion, may, in either hold a warranted; its testimony dropper’s would be hearing proceed di- suppression new possibility it did not mention the of dis rectly to a trial at which the State' new remedy. appropriate of a case as an missal through may attempt to meet its burden I granting vote to reverse the prove presence offers outside discharge motion for under Crim jury. his motion inal Rule to dismiss at 1029. Taylor, N.E.3d grounds, constitutional remand my view the State was entitled trial. any presumption prej attempt rebut improprieties associated with udice It in fact be

prosecutors police. may presumption, per but

unable rebut I am try. it is to at

Taylor allowed least familiar with the facts both

quite Taylor, say I cannot the facts

case