Six-day delay in initial appearance was improper, but prejudice not shown, COA rules

Although a trial court should not have allowed a six-day delay in a defendant’s initial appearance, the Indiana Court of Appeals upheld the denial of the defendant’s motion to reduce bail because he did not establish prejudice. A concurring judge, however, cautioned that restraint should be used when “extending” Supreme Court precedent.

In Dan L. Broering v. State of Indiana, 20A-CR-2232, Dan Broering was arrested on Feb. 27, 2020, after drugs were found in his car during a traffic stop. The Ripley Circuit Court found probable cause for his arrest the next day and ordered Broering to remain in custody until his initial appearance.

The same day, the state moved for a 72-hour extension to evaluate how to best charge Broering, and the trial court granted the motion. Broering was eventually charged with drug-related felonies on March 4, 2020, and his bail was set at $100,000 on that day.

Then on Oct. 19, Broering moved to reduce bond, arguing his constitutional rights were violated when he was denied bail for one week. His counsel argued that if the state wanted to request a 72-hour extension, it should have done so at an initial hearing where Broering was present. That hearing, counsel argued, should have occurred “promptly” under Indiana Code § 35-33-7.

But the trial court denied Broering’s motion, and the Indiana Court of Appeals affirmed.

“Broering asks this Court to find that the usage of the term ‘promptly’ in Ind. Code § 35-33-7-1(a) means ‘within 48-hours of arrest,’ and points to the general purpose of initial hearings and the history and principles surrounding bail at common law and within United States Supreme Court jurisprudence,” Judge Elaine Brown wrote Friday. “He contends by analogy that, as a defendant is entitled to a probable cause determination that is made within forty-eight hours – despite, as he admits, the term ‘promptly’ or the phrase ‘within 48-hours’ being absent from Ind. Code § 35-33-7-2, the defendant is also entitled to an initial hearing within forty-eight hours of arrest.”

The appellate panel agreed with Broering that “when the State filed its request for a 72-hour extension, the trial court should have denied the request and set an initial hearing at which the prosecuting attorney could make the request on the record with Broering present.”

However, Broering did not assert prejudice from the delay, Brown wrote, so the COA upheld the denial of his motion to reduce bond. The panel pointed to Stafford v. State, 890 N.E.2d 744 (Ind. Ct. App. 2008), which held that, “It is the defendant’s burden to ‘show the delay between his arrest and the initial hearing was both prejudicial and unreasonable.’”

Chief Judge Cale Bradford concurred in result but wrote separately that his analysis would “begin and end” with the issue of prejudice.

“Restraint is particularly advisable in this case, where the majority’s disposition is arguably making new law. The majority implicitly concludes that a six-day delay in bringing a defendant before a judge for an initial hearing automatically violates the promptness of Indiana Code section 35-33-7-1(a), which can be fairly characterized as an extension of the Indiana Supreme Court’s decision in May, in which the Court concluded that a delay of one week was not sufficiently prompt,” Bradford wrote, citing May v. State, 502 N.E.2d 96 (Ind. 1986).

“I feel strongly that such extensions should only be made in cases where the question is squarely before the court,” he wrote. “Consequently, I concur in result.”

Brown’s opinion addressed Bradford’s concurrence in a footnote, writing that to the extent he “advises restraint, we note that the State’s motion for 72-hour extension recognized that Broering had a right ‘pursuant to I.C. 35-33-7-1 … to be brought before the [c]ourt for his prompt, initial hearing,’ and we view the question of promptness, given all the attendant circumstances, to be squarely before the court.”

Judge Nancy Vaidik concurred with Brown’s opinion.