State of Indiana v. Thomas Dale Mozee (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 28 2017, 8:42 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT Curtis T. Hill. Jr. Attorney General of Indiana Jodi Katheryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

State of Indiana, April 28, 2017 Appellant-Plaintiff, Court of Appeals Case No. 10A04-1610-CR-2336 v. Appeal from the Clark Circuit Court Thomas Dale Mozee, The Honorable David Mosley, Appellee-Defendant. Judge Pro Tempore Trial Court Cause No. 10C02-0608-CM-253

Kirsch, Judge. [1] The State of Indiana appeals the dismissal of its petition to revoke probation

against Thomas Dale Mozee.

Court of Appeals of Indiana | Memorandum Decision 10A04-1610-CR-2336 | April 28, 2017 Page 1 of 3 [2] We reverse and remand.

Facts and Procedural History [3] The State charged Mozee with invasion of privacy, a Class A misdemeanor on

August 22, 2006. Mozee entered into a plea agreement, and pursuant to that

agreement the trial court sentenced him to one year, with seven and one-half

months executed and four and one-half months suspended to “strict” terms of

probation. App. at 3, 27-32, 34. On December 1, 2006, Mozee was released to

probation with credit for time served. [4] Mozee failed to attend probation appointments on December 5, 2006, January

19, 2007, and January 29, 2007, and he failed to report to his probation officer.

The State filed a petition to revoke probation on March 19, 2007, and a warrant

was issued for his arrest. Nearly ten years later, on August 10, 2016, the

warrant was served, and Mozee was arrested. On September 16, 2016, the trial

court cited the length of time between the violation and the arrest and dismissed

the revocation proceeding over the State’s objection. The State now appeals.

Discussion and Decision [5] Mozee did not file an appellee’s brief. In such cases, we will not develop an

argument for the appellee, and we apply a less stringent standard of

review. Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). We may

reverse if the appellant establishes prima facie error, which is error at first sight,

on first appearance, or on the face of it. Id. The appellee’s failure to provide

Court of Appeals of Indiana | Memorandum Decision 10A04-1610-CR-2336 | April 28, 2017 Page 2 of 3

argument does not relieve us of our obligation to correctly apply the law to the

facts in the record to determine whether reversal is required. Id. [6] Indiana Code section 35-38-2-3(c), provides that “[t]he issuance of a summons

or warrant tolls the period of probation until the final determination of the

charge.” The purpose of subsection (c) is “to allow a trial court to revoke

probation and order a person returned to jail when it determines that person

violated probation, even if the disposition occurs after the original term of

probation has expired.” Trammell v. State, 45 N.E.3d 1212, 1216 n.2 (Ind. Ct.

App. 2015). This statutory provision “precludes a probationer from violating

the terms of his probation and fleeing the jurisdiction until the term of the

suspended sentence elapses, thereby thwarting the State’s efforts to revoke his

probation.” Mumford v. State, 651 N.E.2d 1176, 1178 (Ind. Ct. App. 1995)

(citing Alley v. State, 556 N.E.2d 15, 16 (Ind. Ct. App. 1990), trans. denied). [7] Here, the issuance of the warrant tolled the period of probation until resolution

of the revocation proceeding. Mozee failed to report for his probation or to

maintain any contact with the probation department. His failure tolled the

period of probation from the date of issuance of the warrant until “the final

determination on the petition to revoke. . .” Id. at 1179. The trial court erred in

dismissing the probation revocation proceeding prior to is resolution. [8] Reversed and remanded. [9] Robb, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 10A04-1610-CR-2336 | April 28, 2017 Page 3 of 3