ATTORNEYS FOR APPELLANT:
Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
vs. ) No. 21A01-0101-CR-10
NORMAN SUGGS, )
APPEAL FROM THE FAYETTE SUPERIOR COURT
The Honorable Daniel L. Pflum, Special Judge
Cause No. 21D01-9804-CM-208
August 24, 2001
OPINION - FOR PUBLICATION
The State appeals the trial court’s order discharging appellee-
defendant Norman Suggs (“Suggs”) pursuant to Indiana Criminal Rule 4(C).
We reverse and remand.
The State raises a single issue for review, which we restate as
whether the trial court erred in granting Suggs’ motion for discharge under
Indiana Criminal Rule 4(C).
Facts and Procedural History
According to the probable cause affidavit, on April 7, 1998, State
Police Trooper Bill Hutton (“Hutton”) stopped Suggs for driving his car
with a non-functioning headlight. Hutton observed that Suggs had a strong
odor of alcohol on his person. Hutton conducted a portable breath test,
which indicated the presence of alcohol. Suggs consented to a certified
breath test, which indicated that his blood alcohol content was 0.11
percent. On April 14, 1998, the State charged Suggs with operating a
vehicle while intoxicated and operating a vehicle with more than 0.10
percent of alcohol in his blood.
On April 15, 1998, Suggs waived the initial hearing and requested a
bench trial. The trial court set the initial trial date for June 2, 1998.
On June 2, 1998, the parties appeared, but the matter was not tried; Suggs
requested a plea recommendation and indicated that he would likely plead
On June 8, 1998, the State filed a motion for a second trial setting
in which it noted that “the Defendant’s counsel and State appeared [on June
2] and plea recommendation was offered. However, the matter was not
decided nor set for any further hearing or trial.” The court set the trial
for August 28, 1998. On August 27, 1998, Suggs moved to continue the trial
and informed the court that he had reached “an agreement” with the State.
Suggs requested that the plea and sentencing hearing be set for 120 days
thereafter to allow him to gather monies for the fines and costs. The
court granted the motion and reset a trial date for October 23, 1998.
On October 20, 1998, a plea recommendation was filed with the trial
court. On October 26, 1998, the court set a guilty plea and sentencing
hearing for January 19, 1999. On January 19, 1999, Suggs filed a motion to
continue the hearing. The court granted the motion and rescheduled the
hearing for April 6, 1999. On March 31, 1999, Suggs filed another motion
to continue the hearing, which the court denied. Subsequently, Suggs
failed to appear for the April 6 hearing. On December 30, 1999, the
State moved for another trial setting. However, the court did not rule on
On February 29, 2000, the State filed a Trial Rule 53.1(A) praecipe
for withdrawal of jurisdiction and transfer to the Indiana Supreme Court.
The supreme court withdrew the case from the original judge and appointed a
special judge on May 30, 2000. On June 9, 2000, the court set a settlement
conference for June 14, 2000. On June 14, 2000, Suggs filed a motion for
discharge, which the court granted on September 12, 2000. The order
discharging Suggs reads in relevant part as follows:
Charges were filed on April 14, 1998, and a trial was set for
August 28, 1998. The time attributed to the State is 156 days.
The defendant filed a Motion to Continue the Guilty Plea set for
April 6, 1999, which was denied on March 13 [sic], 1999, and no new
trial date was set.
The time attributed to the State since the above date of April
6, 1999 to March 1, 2000, the date the State filed its TR 53.1 Motion,
is 330 days.
The undersigned Judge was notified by the Supreme Court of his
appointment as Special Judge on June 7, 2000. The time attributable
to the State from the filing of it’s [sic] Motion is 98 days.
Discussion and Decision
Initially, we note that Suggs has failed to file an appellee’s brief.
“A less stringent standard of review applies and an appellant need only
establish prima facie error to win a reversal when the appellee fails to
file a brief.” State v. Johnson, 669 N.E.2d 411, 412 (Ind. Ct. App.
1996), trans. denied. “The purpose of this rule is not intended to benefit
the appellant. Rather, it is intended to relieve this court of the burden
of controverting the arguments advanced for reversal.” Spears v. State,
621 N.E.2d 366, 367 (Ind. Ct. App. 1993). “Prima facie error means error
at first sight, on first appearance, or on the face of it.” Id.
The State contends that the trial court erred in granting Suggs’
motion for discharge under Indiana Criminal Rule 4(C) because less than one
year chargeable to the State had elapsed between the filing of the charges
and the motion for discharge. Specifically, the State argues that only
forty-nine days are attributable to the State under the Rule 4(C) period.
Indiana Criminal Rule 4(C) provides in relevant part:
No person shall be held on recognizance or otherwise to answer a
criminal charge for a period in aggregate embracing more than one
year from the date the criminal charge against such defendant is
filed, or from the date of his arrest on such charge, whichever is
later; except where a continuance was had on his motion, or the
delay was caused by his act, or where there was not sufficient time
to try him because of congestion of the court calendar . . . .
Provided further, that a trial court may take note of congestion or
an emergency without the necessity of a motion, and upon so finding
may order a continuance. Any continuance granted due to a congested
calendar or emergency shall be reduced to an order, which order
shall also set the case for trial within a reasonable time. Any
defendant so held shall, on motion, be discharged.
The duty to bring a defendant to trial within one year is an
affirmative one which rests with the State, and the defendant is under no
obligation to remind the court of the State’s duty. Ritchison v. State,
708 N.E.2d 604, 606 (Ind. Ct. App. 1999), trans. denied. “The one-year
period commences with the date of arrest or filing of information,
whichever is later.” Isaacs v. State, 673 N.E.2d 757, 762 (Ind. 1996).
“[I]f a defendant seeks or acquiesces in any delay which results in a later
trial date, the time limitations of the rule are also extended by the
length of those delays.” Id. “By the rule’s own terms, the one-year
period is extended by any delay due to: 1) a defendant’s motion for a
continuance; 2) delay caused by the defendant’s act; or 3) congestion of
the court calendar.” Id.
Under Criminal Rule 4(C), the State’s one-year period began when it
filed charges against Suggs on April 14, 1998, and thus it had until April
14, 1999, to bring him to trial. The forty-nine days between April 14,
1998, and the first trial date, June 2, 1998, are chargeable to the State.
However, there is no CCS entry for June 2, 1998. “When a record is silent
concerning the reason for a delay, it is not attributable to the
defendant.” Havvard v. State, 703 N.E.2d 1118, 1121 (Ind. Ct. App.
1999). On June 8, 1998, on the State’s motion, Suggs’s trial was
rescheduled to August 28, 1998.
On August 27, 1998, Suggs moved for a continuance, reported that he
had reached an agreement with the State, and requested 120 days to gather
funds. Suggs’ trial was reset to October 23, 1998. On October 20, 1998, a
plea recommendation was filed. On October 26, 1998, the court set a guilty
plea and sentencing hearing for January 19, 1999. On January 19, 1999,
Suggs filed a second motion for a continuance. The motion was granted, and
the hearing was reset for April 6, 1999. On March 31, 1999, Suggs filed
a third motion for a continuance, which the court denied.
Although the CCS is silent as to why a guilty plea and sentencing
hearing was not held on April 6, 1999, Suggs’ affirmative steps of signing
a plea agreement and seeking continuances were inconsistent with being
brought to trial by the trial date or within one year. See State v. Hurst,
688 N.E.2d 402, 408 (Ind. 1997) (“The one year time period should be
extended because of defendant’s actions only if the defendant does
something that is inconsistent with being brought to trial by the trial
date or within one year.”) (footnote omitted). Suggs never sought to
withdraw the plea agreement, and he acquiesced in the ensuing delays until
he filed his motion for discharge on June 14, 2000. Even if we were to
assign responsibility to the State for the delay from April 14, 1998
through August 27, 1998, when Suggs moved for his first continuance, this
time period is considerably less than the one-year deadline of Criminal
Rule 4(C). Consequently, we reverse and remand for further proceedings.
Reversed and remanded.
KIRSCH, J., and BAILEY, J., concur.
 This information appears in the prosecutor’s unsworn and
unverified memorandum of law in response to Suggs’ motion for discharge.
The chronological case summary (“CCS”) does not contain an entry for June
 The document states in relevant part that “parties hereto intend
this recommendation to be a binding plea agreement, and intend to condition
the Court’s acceptance of defendant’s guilty plea upon the imposition of
the specific sentence as recommended herein.” We note that the prosecutor
signed the recommendation on April 15, 1998, defense counsel on October 15,
1998, and Suggs on October 20, 1998.
 This information is noted in the prosecutor’s memorandum of law.
The CCS does not contain an entry for April 6, 1999.
 See Staples v. State, 553 N.E.2d 141, 143 (Ind. Ct. App. 1990):
A trial court speaks through its docket which makes it necessary for
the trial court to make a docket entry as to why a defendant’s trial
cannot be conducted on the date set. In fact, Crim. R. 4 (C) requires
the court to take notice of these facts. However, this procedure was
not followed in this case. The docket is blank as to why the
defendant was not tried . . . . Furthermore, if the trial court
neglected to make a docket entry as to why the defendant could not be
tried on the date set, then the State should have requested the trial
court to make a docket entry.