Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Denise L. Turner

DTurner Legal, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jason M. Middleton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 31, 2019

Court of Appeals Case No.

19A-CR-512

Appeal from the Shelby Circuit 

Court

The Honorable Trent E. Meltzer, 

Judge

Trial Court Cause No.

73C01-1806-F6-293

Mathias, Judge.

[1] Following a jury trial in Shelby Circuit Court, Jason M. Middleton 

(“Middleton”) was convicted of Level 6 felony counterfeiting and sentenced to 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 2 of 12

twenty-five months of incarceration. Middleton appeals and claims that the trial 

court erred by denying his Criminal Rule 4(B) motion to dismiss. 

[2] We affirm. 

Facts and Procedural History

[3] On December 20, 2017, the State charged Middleton in Cause No. 73D01-

1712-F3-22 (“Cause No. F3-22”) with Level 3 felony kidnapping while armed 

with a deadly weapon, Level 3 felony criminal confinement while armed with a 

deadly weapon, Level 5 felony battery resulting in serious bodily injury, and 

Level 6 felony strangulation. Middleton entered into a plea agreement in that 

cause on March 26, 2018. Pursuant to the terms of this agreement, Middleton 

pleaded guilty to the battery and strangulation charges, and the State dismissed 

the remaining charges. The trial court sentenced Middleton to an aggregate 

term of ten years in that cause. 

[4] On June 11, 2018, the State charged Middleton in the present cause, Cause No. 

73C01-1806-F6-293 (“Cause No. F6-293”) with Level 6 felony counterfeiting, 

alleging that he submitted a forged document to the court in Cause No. F3-22.1

A warrant was issued for his arrest the next day. At the initial hearing held on 

August 7, 2018, Middleton orally requested a fast and speedy trial. The trial 

 

1 The State alleged that Middleton, in his post-trial motion to set aside his conviction in Cause No. F3-22, 

included a fraudulently file-stamped copy of a motion for a speedy trial in that case. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 3 of 12

court therefore set an initial trial date of October 9, 2018, and appointed 

counsel for Middleton. 

[5] On September 24, 2018, the State filed a combined motion to continue and 

motion to release Middleton on his own recognizance. In this motion, the State 

requested a continuance due to the ongoing plea negotiations between 

Middleton and the State. Also on September 24, 2018, Middleton filed a pro se 

motion seeking to discharge his appointed counsel and be appointed different 

counsel. In this pro se motion, Middleton objected to any trial date other than 

October 9. 

[6] The following day, the trial court granted the State’s combined motion to 

continue and to release Middleton on his own recognizance. In its order 

granting the State’s motion, the trial court set a new trial date of December 10, 

2018. Middleton did not object to this continuance or to the new trial date. 

Even though the trial court granted the State’s motion to release Middleton on 

his own recognizance in the present case, Middleton remained incarcerated as a 

result of the sentence imposed in Cause No. F3-22. 

[7] The trial court held a hearing on Middleton’s pro se motion for new counsel on 

October 9, 2018, and, two days later, referred Middleton to the county public 

defender’s office for reassignment of counsel. A new public defender filed an 

appearance on Middleton’s behalf on October 12, 2018. This new counsel made 

no objection to the State’s previous request for a continuance. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 4 of 12

[8] Instead, on December 6, 2018, Middleton, by counsel, filed a motion to dismiss 

claiming that his trial had not been held within seventy days as required by 

Criminal Rule 4(B). The trial court denied this motion the same day, noting 

that Middleton had been released on his own recognizance in the present cause, 

the Level 6 felony counterfeiting charge, on September 25, 2018. The court 

therefore concluded that Criminal Rule 4(B) was inapplicable. 

[9] As scheduled, a jury trial was held on December 10, 2018, at the conclusion of 

which the jury found Middleton guilty of Level 6 felony counterfeiting. On 

December 20, 2018, the trial court sentenced Middleton to twenty-five months 

of incarceration, to be served consecutively to the sentence previously imposed 

in Cause No. F3-22. Middleton did not timely file a notice of appeal. 

[10] On March 4, 2019, Middleton filed a petition for permission to file a belated 

notice of appeal. The trial court granted this petition the same day, and 

Middleton filed a belated notice of appeal on March 6, 2019. On June 12, 2019, 

Middleton filed a motion in this court to stay the appeal and remand to the trial 

court. We granted this motion on June 24, 2019, and ordered Middleton to file 

a belated motion to correct error within five days of our order. 

[11] That same day, Middleton filed in the trial court a “Verified Trial Rules 59 and 

60 Belated Motion to Correct Error and Set Aside Judgment.” Appellant’s App. 

p. 44. Attached to his motion, Middleton submitted Shelby County Jail records 

that showed him as having “[n]o bond” in the present case. Appellant’s App. p. 

54. The jail records also show that there was a Department of Correction 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 5 of 12

(“DOC”) “Hold for Plainfield” for Middleton with “[n]o bond” based on his 

prior conviction in Cause No. F3-22. Id. The jail records state that Middleton 

was held in the Shelby County Jail from his arrest on August 7, 2018 until he 

was transferred back to the custody of the DOC on December 21, 2018. Id. 

Middleton therefore argued that, despite the trial court’s order releasing him on 

his own recognizance, he was never actually released in the present case and 

that the time limits of Criminal Rule 4(B) were applicable. The trial court 

denied Middleton’s motion to correct error on July 3, 2019, again concluding 

that “Criminal Rule 4(B) was not available to Defendant because he was not 

incarcerated on the pending charge.” Appellant’s App. p. 62. Middleton now 

appeals. 

Standard of Review

[12] Our standard for reviewing a trial court’s ruling on a Criminal Rule 4 motion 

depends on the nature of decision made by the trial court. Tinker v. State, 53 

N.E.3d 498, 502 (Ind. Ct. App. 2016). If the trial court’s decision was based on 

undisputed facts, then our review is, like for all questions of law, de novo. Id.

(citing Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013)). If, however, the court 

made factual findings regarding such things as court congestion or emergency, 

then our review is for clear error. Id. (citing Austin, 997 N.E.2d at 1040). Under 

a review for clear error, we neither reweigh the evidence nor determine the 

credibility of witnesses and instead consider only the probative evidence and 

reasonable inferences supporting the trial court’s ruling. Id. We will reverse only 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 6 of 12

upon a showing of error that “‘leaves us with a definite and firm conviction that 

a mistake has been made.’” Id. (quoting Austin, 997 N.E.2d at 1040). 

Criminal Rule 4(B)

[13] Both the Sixth Amendment to the United States Constitution and Article 1, 

Section 12 of the Indiana Constitution protect the right of an accused to a 

speedy trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). In Indiana, the 

constitutional right to speedy trial is generally implemented by Criminal Rule 

4(B),2 which provides in relevant part that “[i]f any defendant held in jail on an 

indictment or an affidavit shall move for an early trial, he shall be discharged if 

not brought to trial within seventy (70) calendar days of such motion.” Crim. 

Rule 4(B)(1). “It is well established that Criminal Rule 4 places an ‘affirmative 

duty’ on the State to bring a defendant to trial.” Cundiff, 967 N.E.2d at 1028

(quoting Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011)). “By the same 

token, the purpose of Criminal Rule 4 is not to provide defendants with a 

technical means to avoid trial but rather to assure speedy trials.” Id. (citing Loyd 

v. State, 272 Ind. 404, 410, 398 N.E.2d 1260, 1266 (1980)). 

[14] Although a defendant has no obligation to remind the State of this duty or to 

remind the trial court of the State’s duty, State v. Jackson, 857 N.E.2d 378, 380 

(Ind. Ct. App. 2006), a defendant must still object “at his earliest opportunity, 

 

2 Although Criminal Rule 4 implements a defendant's constitutional right to a speedy trial, courts review 

claims of Criminal Rule 4 violations separately and distinctly from claims of the constitutional right to a 

speedy trial. Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 7 of 12

to a trial setting that is beyond the seventy-day time period[.]” Hill v. State, 777 

N.E.2d 795, 797–98 (Ind. Ct. App. 2002), opinion on reh’g. “A defendant who 

permits the court, without objection, to set a trial date outside the 70–day limit 

is considered to have waived any speedy trial request.” Hahn v. State, 67 N.E.3d 

1071, 1080 (Ind. Ct. App. 2016), trans. denied. 

Discussion and Decision

[15] Middleton argues that the trial court erred by denying his motion for discharge 

and his motion to correct error, having claimed in both that he was not brought 

to trial within the seventy-day time limit set forth in Criminal Rule 4(B). We 

disagree. 

I. Waiver

[16] Middleton was arrested in the present case on August 7, 2018. At the initial 

hearing held the day of his arrest, Middleton requested a speedy trial. Pursuant 

to Criminal Rule 4(B), Middleton had to be brought to trial within seventy days 

of this request, i.e., no later than October 16, 2018. The trial court set an initial 

trial date of October 9, 2018, within this time limit. On September 24, 2018, 

prior to the scheduled trial date, the State filed a motion to continue the trial. 

The trial court granted the State’s motion to continue and set a new trial date of 

December 10, 2018, which was outside the seventy-day time limit of Criminal 

Rule 4(B). Middleton, however, did not object to the continuance or the new 

trial date. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 8 of 12

[17] Thus, the trial court, acting within the seventy-day time limit of Criminal Rule 

4(B), set the trial for a date outside the seventy-day time limit, but Middleton 

did not object. He therefore waived his claim to a speedy trial. See Hahn, 67 

N.E.3d at 1080 (holding that defendant waived his speedy trial request when his 

counsel failed to object to the trial date at the pre-trial conference where the 

court set the trial date); see also Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997)

(“A defendant who permits the court, without objection, to set a trial date 

outside the seventy day limit will be deemed to have acquiesced therein.”); cf. 

Ratliff v. State, 132 N.E.3d 41, 43 (Ind. Ct. App. 2019) (noting that, under 

Criminal Rule 4(C), “[w]hen a trial court, during the one-year period, schedules 

a trial date outside of the one-year period, the defendant must object in order to 

give the trial court an opportunity to cure its mistake.”), trans. pending.

3

[18] Our conclusion is not altered by the fact that Middleton filed a pro se motion on 

September 24, 2018, seeking new counsel and objecting to any trial date other 

than October 9, 2018. This pro se motion was filed while Middleton was still 

represented by counsel, and a trial court may, in its discretion, refuse to 

consider pro se filings by parties represented by counsel. See Underwood v. State, 

722 N.E.2d 828, 832 (Ind. 2000) (“[O]nce counsel was appointed, Defendant 

spoke to the court through counsel. The trial court was not required to respond 

to Defendant’s request [for a speedy trial] or objection [to counsel’s request for a 

 

3 Middleton’s citation to Jackson v. State, 663 N.E.2d 766 (Ind. 1996), is unavailing. In that case, defense 

counsel “strenuous[ly]” objected when the trial court continued the trial date to one outside the seventy-day 

time limit of Criminal Rule 4(B). Id. at 768. Here, Middleton’s counsel made no such objection, and Jackson

is therefore not controlling. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 9 of 12

continuance.”); Hill v. State, 773 N.E.2d 336, 342 (Ind. Ct. App. 2002) (holding 

that defense counsel’s failure to object to a continuance acted to waive 

defendant’s speedy trial request even though defendant personally objected to 

the continuance and requested to go to trial on the originally scheduled trial 

date), aff’d in relevant part on reh’g, trans. denied. 

II. Criminal Rule 4(B) Inapplicable

[19] Even if Middleton did not waive his right to be tried within seventy days, he 

would still not prevail in his claim that the trial court erred in denying his 

motion for discharge. As found by the trial court, Middleton was released on 

his own recognizance in the present case. “Once released from custody, a 

defendant receives no further benefit from Crim. R. 4(B).” Parker v. State, 965 

N.E.2d 50, 52 (Ind. Ct. App. 2012) (citing Williams v. State, 631 N.E.2d 485, 

486 (Ind. 1994)), trans. denied. “Instead, a non-incarcerated defendant’s right to 

a speedy trial is implemented by the one-year limitation period contained in 

Crim. R. 4(C).” Id. (citing Williams, 631 N.E.2d at 487). 

[20] Middleton notes that, although the trial court granted the State’s motion to 

release him on his own recognizance, he remained in jail. But the reason 

Middleton remained in jail was because there was a DOC hold on him based 

on his ten-year sentence in Cause No. F3-22. That is, Middleton was not being 

detained in the present case after the trial court’s order releasing him on his own 

recognizance; he was being detained for the sentence in the prior case. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 10 of 12

[21] “[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge for 

which he seeks a speedy trial, and as long as that requirement is met, the 

availability of Rule 4(B) is not affected if the defendant is also incarcerated on 

other grounds.” Cundiff, 967 N.E.2d at 1031 (citing Poore v. State, 685 N.E.2d 

36, 40 (Ind. 1997)). Here, after the trial court released Middleton on his own 

recognizance, Middleton was no longer incarcerated on the charge for which he 

sought a speedy trial, and Criminal Rule 4(B) was therefore inapplicable. 

[22] Middleton seeks to distinguish his case from Cundiff, noting that the defendant 

in that case was arrested and then posted bond. While out on bond, he was 

arrested for a probation violation in an unrelated case. While in custody for the 

probation violation, Cundiff requested a speedy trial in the case in which he had 

been released on bond. Our supreme court held that Criminal Rule 4(B) was 

inapplicable because Cundiff was not incarcerated on the charge for which he 

sought a speedy trial. Id.

[23] Here, Middleton notes that he was incarcerated in one case, later charged in the 

present case, subsequently “released” in the present case, but remained 

incarcerated in the first case. We think this to be a distinction from the facts of 

Cundiff without a meaningful difference. The relevant facts of this case and 

Cundiff are similar: in both cases the defendants sought a speedy trial but were 

not incarcerated on the charge for which they sought a speedy trial. Thus, 

Criminal Rule 4(B) is inapplicable. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 11 of 12

[24] Middleton nevertheless argues that, despite the trial court’s order releasing him 

on his own recognizance, he was still being detained on the charges in the 

present case. In support of this argument, he notes that the Shelby County Jail 

records show that he was held with “no bond” in the present case. Appellant’s 

App. p. 54. He also claims that, although the trial court granted the State’s 

motion to release Middleton on his own recognizance, “it failed to make a 

specific directive regarding Middleton’s custody/release status.” Appellant’s Br. 

p. 10. We are not persuaded. 

[25] Perhaps the trial court’s order granting the State’s motion to release Middleton 

on his own recognizance could have explicitly ordered the jail to release 

Middleton on his own recognizance in the present case. But this would not 

have meant that the jail would have actually released him, as there was still a 

DOC hold on him due to his incarceration in Cause No. F3-22. Moreover, we 

think it relatively straightforward that the trial court’s order granting the State’s 

motion “to release the defendant on his own recognizance” acted to release 

Middleton from incarceration on the charges in the present case only. That the 

jail records fail to note this is not dispositive. 

[26] The bottom line is that the trial court granted the State’s motion to release 

Middleton on his own recognizance in the present case, and after this order, 

Middleton was no longer incarcerated as a result of the charges in the present 

case. He was instead being held based on the sentence in the prior case. Because 

he was not being held on charges in the present case, Criminal Rule 4(B) was 

inapplicable. Cundiff, 967 N.E.2d at 1031. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-512 | December 31, 2019 Page 12 of 12

Conclusion

[27] Middleton waived his right to a speedy trial by failing to object when the trial 

court continued the trial to a date outside the seventy-day time limit of Criminal 

Rule 4(B). This waiver notwithstanding, Criminal Rule 4(B) was inapplicable 

after the trial court ordered Middleton released on his own recognizance in the 

present case, despite the fact that he remained in jail due to his sentence in a

prior case. Thus, the trial court did not err by denying Middleton’s motion to 

dismiss or his motion to correct error. We therefore affirm the judgment of the 

trial court. 

[28] Affirmed. 

Robb, J., and Pyle, J., concur.