FOR PUBLICATION

ATTORNEYS FOR APPELLANT:

JEFFREY A. MODISETT

Attorney General of Indiana

RANDI F. ELFENBAUM

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

STATE OF INDIANA,	)

			)

	Appellant-Plaintiff,	)

			)

		vs.	)	No.  92A05-9704-CR-160

			)

MICHAEL L. GOBLE,	)

			)

	Appellee-Defendant.	)

APPEAL FROM THE WHITLEY SUPERIOR COURT

The Honorable John Boyce, Special Judge

Cause No.  92D01-9507-DF-389

OctoberOctober 29, 1999Handdown Date

OPINION - FOR PUBLICATION

RUCKER, Judge

	The State of Indiana appeals the trial court's order granting Michael L. Goble's motion for discharge pursuant to Ind. Crim. Rule 4(C).1  We address the following restated issue: was the delay in bringing Goble to trial within one year attributable to the State.  We

conclude it was not and therefore reverse. 

	On July 26, 1995, the State charged Goble with resisting law enforcement as a Class

D felony and mistreatment of a police dog as a Class A misdemeanor.  At the initial hearing

counsel was appointed for Goble, and trial was scheduled for November 30, 1995.  Prior to

trial, Goble filed a number of pro se pleadings including those entitled:  "Demand Quash,"  "Habeas Corpus," "Motion For Recussal [sic]," "Notice of Misconduct," "Notice of

Dismissal of the Public Defender for Cause," "Affidavit of Truth In Dismissal Of Terry

Smith," and a document entitled "Titles of Nobility Amendment."  See R. at 16, 24, 33, 34- 53.  Among other things, the various pleadings challenged the jurisdiction of Indiana courts

to try Goble, questioned the authority and fairness of the trial judge, and attacked the

competency of Goble's court appointed counsel.  On the morning of trial, Goble began by

addressing the court as follows: "[m]y name, my Christian Appelation [sic] sir is M-i-c-h-a-

e-l as Michael and capital L-y-n-n Lynn is my Christian Appellation.  My family name is

Goble.  I'm here in that capacity sui juris objecting to these proceedings."  R. at 294.  Over the next several minutes, as the trial judge attempted to explain the proceedings and what was

about to occur, Goble interrupted on several occasions and generally disrupted the orderly process of the court.  See R. at 274-318.  The trial judge exercised extraordinary patience in dealing with Goble but ultimately found him in contempt of court: 

	Let the record reflect the following, Mr. Goble, please be quiet while

I make the record here.  This is Michael D. Rush, Judge of the Whitley

Superior Court a duly constituted Court of the legislature of the State of

Indiana.  The conduct by the Defendant, Michael L. Goble, is determined by

this Court to be in Direct Criminal contempt of this court's ability to conduct

a hearing and to present to this Defendant a fair and appropriate jury trial by

the laws and rules and procedures of the State of Indiana.  The conduct which

has occurred in this Court room in the presence of this Court is continual

interruptions one after the other and directly affects this Court's ability to

conduct appropriate proceedings under the law and rules of the State of

Indiana in criminal cases.  This conduct has taken place in my presence and in

the presence of all persons who are in this Court room who the court will

possibly call to make an affidavit as to the conduct that has taken place here

in this Court room.  I believe that Mr. Goble has committed acts of Criminal

Contempt in the presence of this court that are done in defiance, disrespect of

the lawful order of this court and the laws of the State of Indiana and the

dignity of these proceedings.

R. at 318-19.  The trial judge sentenced Goble to thirty days in jail.  He also granted counsel's

motion to withdraw his appearance.  In addition, the trial judge recused himself and

requested the appointment of a special judge.  Acting on the request the supreme court

entered an order appointing the Honorable John Boyce as special judge in this case on

January 10, 1996.  Thereafter Judge Boyce scheduled Goble's trial for July 19, 1996.  On

January 22, 1996, Goble, acting pro se, filed with the trial court a pleading entitled "Notice to the Supreme Court of Judicial Error and Hearing for Cause."  R. at 144.  As best we can

discern, the pleading appears to challenge the supreme court's authority to appoint Judge

Boyce.  In any event, on July 5, 1996, again acting pro se, Goble filed a pleading requesting a pre-trial conference to "determine Jurisdiction or in the Alternative Discharge pursuant to Trial Rule 4 of Criminal Procedure."  R. at 152.  Prior to that date Goble had sent a letter to

the trial judge requesting court appointed counsel.  In response, the trial judge appointed

counsel to represent Goble and scheduled a hearing date of July 19, 1996, to address the

motion for discharge. 

	On July 16, 1996, counsel entered an appearance for Goble, moved to continue the

previously scheduled trial date, and filed a motion for pre-trial conference.  Accordingly the

trial court vacated the trial date and scheduled a pre-trial conference for July 23, 1996.  Pre-

trial conference was held as scheduled.  Goble did not appear but was represented by counsel. 

At the pre-trial conference the trial court denied Goble's motion for discharge and scheduled

a trial date of October 31, 1996.  Thereafter on August 12, 1996, again acting pro se Goble filed a pleading entitled "Criminal Rule 4 Discharge Refusal For Fruad [sic]."  R. at 162. 

The trial court considered the pleading as a second motion for discharge and denied it. 

	Thereafter, a final pre-trial conference was scheduled for September 27, 1996.  Goble 

appeared on that date.  Goble's court appointed counsel also appeared.  However, Goble

affirmed that counsel "can't speak for Mr. Goble" and asserted that counsel was there only

as "an advisory counsel rather than to be here representing me."  R. at 330.  Goble again

moved for discharge under Criminal Rule 4, arguing, among other things, that he was not

given notice of the July 23, 1996, pre-trial conference.  On the evidence presented, the court

rejected Goble's lack of notice argument.  The trial court did, however, take Goble's motion

for discharge under advisement and permitted Goble to file a memorandum to support his

position.  Accordingly, on October 11, 1996, Goble filed a pro se pleading entitled "Demand for Due Process of the Land Organic with Motion Pursuant to Criminal Rule 4 for Discharge

and Memorandum of Fundamental Law."  R. at 168.  

	On October 23, 1996, the trial court entered an order pointing out that, among other

things, Goble's latest pleading asserted a number of issues based upon Goble's beliefs in, and

relying upon, the rhetoric of the common law courts movement.2  The trial court discounted such assertions.  Nonetheless the trial court granted Goble's motion for discharge.  In so

doing, the trial court outlined the various relevant dates and causes for delay and determined

"[b]y the time of the final pre-trial conference on September 27, [1]996, 429 calendar days

had elapsed since Goble's arrest, disregarding delay attributable to Goble leaves a total

elapsed time attributable to the State of 386 days."  R. at 200.  This appeal followed.3

	Ind. Crim. 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 . . . .

Under the Rule the State has an affirmative duty to bring a criminal defendant to trial within

one year.  Bates v. State, 520 N.E.2d 129, 131 (Ind. Ct. App. 1988).  The one year time period commences upon the date of arrest or date of charge, whichever is later.  Id.  That period is extended by delay arising from any continuance had on the defendant's motion, by

any delay caused by the defendant's act, or by congestion of the court's calender.  Id. 

	Goble was initially arrested on July 6, 1995, for mistreatment of a police dog and

resisting law enforcement.  He was charged with those offenses on July 26, 1995.  Thus,

barring any delays attributable to Goble the State was obligated to bring him to trial by July

26, 1996.  On November 30, 1995, Goble appeared for trial.  However, as a result of Goble's

conduct, the trial judge was compelled to find Goble in contempt of court.  The trial judge

also recused himself and requested appointment of a special judge.  The supreme court

appointed a special judge on January 10, 1996.  The 41-day delay from the date of recusal

to the date of the appointment of the special judge tolled the running of the Crim. R. 4(C)

time period.  And this is so whether the delay is attributable to Goble under the premise that

his acts caused the delay, or whether the unavailability of a qualified trial judge is considered

a delay about which "the State has little means of addressing."  Henderson v. State, 647 N.E.2d 7, 13 (Ind. Ct. App. 1995) (finding a 139-day delay between recusal of the regular judge and the appointment of a special judge an "exigent circumstance" that tolled the

running of the time period under Crim. R. 4).  Tolling of the time period extends the ultimate

deadline by which the defendant must be tried.  Id.  Thus, the State now had to bring Goble to trial by September 5, 1996. 

	After the special judge was appointed, trial was rescheduled for July 19, 1996.

However, upon motion by Goble's counsel dated July 16, 1996, the date was vacated, and the

trial court set a pre-trial conference for July 23, 1996.  At the pre-trial conference the trial

court scheduled trial for October 31, 1996.  When a defendant requests a continuance of his

trial date, "[t]he delay attributable to the defendant runs from the time the motion is filed

through the date upon which the new trial is rescheduled."  Henderson, 647 N.E.2d at 13.  The 111-day delay between the date the continuance was requested and the date trial was

rescheduled is attributable to Goble.  Although Goble would later contend that counsel "can't

speak for Mr. Goble," and that counsel's role was only that of "an advisory counsel," the fact

is that counsel was appointed to represent Goble at Goble's request.  As a result of Goble's

request for a continuance, the State was not required to bring him to trial until December 26,

1996.   

	 Because the State was not required to bring Goble to trial until December 26, 1996,

Goble's motion for discharge made at the final pre-trial conference on September 27, 1996,

was premature.  On this record the State has made a prima facie showing that the trial court erred in granting Goble's motion for discharge.  Accordingly, the judgment of the trial court

is reversed, and this cause is remanded for further proceedings.  

	Judgment reversed and cause remanded.

NAJAM , J., concurs.

STATON, J., concurs in result.

IN THE

COURT OF APPEALS OF INDIANA

STATE OF INDIANA,	)

			)

	Appellant-Plaintiff,	)

			)

		vs.	)	No. 92A05-9704-CR-160

			)

MICHAEL L. GOBLE,	)

			)

	Appellee-Defendant.	)

STATON, Judge, concurring in result

	I concur in result.  The "leniency" and "tolerance" of the trial court should have been

restrained.  The finding of contempt should not have delayed the trial of defendant Goble. 

He should have had court counsel appointed for him immediately and been given an early

trial date.  Disruptive defendants are often their own worste enemy.  Their conduct denies

them as well as others a speedy trial.  Disruptive conduct and ridiculous procedural motions

should not be allowed to deny justice to other members of the community subject to the

jurisdiction of the trial court.