Ernest E. Dixon v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 23 2020, 9:34 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Ernest E. Dixon Curtis T. Hill, Jr. Bunker Hill, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ernest E. Dixon, December 23, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1214 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David N. Riggins, Appellee-Plaintiff. Judge Pro-Tempore Trial Court Cause No. 73D01-0606-FA-15

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1214 | December 23, 2020 Page 1 of 6 [1] Ernest E. Dixon appeals the denial of his motion for relief from judgment. We

affirm.

Facts and Procedural History [2] In January 2009, Dixon and the State filed a Joint Motion to Enter Guilty Plea

in which Dixon agreed to plead guilty in the Shelby Superior Court to two

counts of dealing a Schedule I, II, or III controlled substance as class A felonies

under cause number 73D01-0606-FA-15 (“Cause No. 15”). The parties agreed

to an aggregate sentence of forty years at the Department of Correction

(“DOC”) and that the court “shall determine what part shall be executed, and

what part suspended, with a cap of thirty (30) years on the executed portion of

the sentence.” Appellant’s Appendix Volume II at 95. In February 2009, the

court sentenced Dixon to concurrent terms of forty years on each count with

ten years executed and thirty years suspended. [3] On June 8, 2016, the State filed a Petition to Revoke Probation alleging that

Dixon committed the offense of battery in Decatur County under cause number

16C01-1605-F6-437 (“Cause No. 437”). On July 27, 2016, the State filed an

Addendum to Petition to Revoke Probation alleging that he failed to report to a

scheduled probation appointment. On September 12, 2016, the State filed a

2nd Addendum to Petition to Revoke Probation alleging that he committed

obstruction of justice and invasion of privacy in Decatur County on August 2,

2016. On April 27, 2017, the court entered an Order on Petition to Revoke

Probation, which found that Dixon violated the terms of his probation and

ordered that he serve two years of the previously suspended sentence. It Court of Appeals of Indiana | Memorandum Decision 20A-CR-1214 | December 23, 2020 Page 2 of 6

ordered the sentence be served consecutive to the “Decatur County cases.” Id.

at 67. [4] On April 19, 2018, the State filed another petition to revoke probation under

Cause No. 15 and alleged Dixon committed possession of a synthetic drug,

public intoxication, and possession of paraphernalia as charged in cause

number 73D02-1804-CM-353 (“Cause No. 353”). On July 11, 2018, the court

entered an Order on Petition to Revoke Probation, which found that Dixon

violated the terms of probation and ordered him to serve twelve years of his

previously suspended sentence. [5] On May 15, 2020, Dixon, pro se, filed a thirteen-page Motion for Relief from

Judgment or Order. He asserted that probation fees should not have been

assessed for the time that he was incarcerated. He also alleged the sentence

under Cause No. 437 “could not be started, unless and until service of the first

([Cause No. 15]) sentence had been completed, as a consecutive sentence. The

first sentence then, had been completed; the obligation discharged, prior to the

start of the second sentence ([Cause No. 437]).” Id. at 55. He stated that the

DOC and “Shelby county are without any further personal or subject matter

jurisdiction, to force [him] to re-start service of the first sentence, under [Cause

No. 15].” Id. He alleged that “[t]he same exact loss of jurisdiction occurred

when this Court suspended service of sentence in [Cause No. 15], and allowed

[him] to begin, and serve, the sentence in Cause No. [353].” Id. He requested

that the court order his sentence discharged, the DOC to immediately release

him, and any and all other relief. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1214 | December 23, 2020 Page 3 of 6

[6] On May 18, 2020, the trial court entered an order which granted Dixon’s

motion with respect to his request to reduce probation fees and denied his

motion with respect to his request for a reduction in his executed sentence.

Discussion [7] Before discussing Dixon’s allegations of error, we observe that he is proceeding

pro se and that such litigants are held to the same standard as trained counsel.

Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Dixon

argues the trial court was without any jurisdiction to stop, pause or otherwise

interrupt his sentence under Cause No. 15. He asserts that he could not

“‘begin’, serve and complete another sentence for a consecutive charge in

another county, under Cause No. [437]; and then ‘re-start’ the original sentence

in Shelby county.” Appellant’s Brief at 10. He makes a similar argument with

respect to Cause No. 353. He cites Ind. Trial Rule 60(B) and appears to assert

that the judgment is void, discharged, or another reason exists for relief from

judgment. 1 [8] The State argues that Dixon is improperly attempting to substitute his motion

for relief from judgment for a direct appeal and the “essence of his claim is that

the trial court did not have authority/jurisdiction to impose his probation

1 In his statement of the issues, Dixon asserts that the trial court showed bias, but he does not develop this argument and thus waived the issue. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it was supported neither by cogent argument nor citation to authority).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1214 | December 23, 2020 Page 4 of 6

violation sentences consecutively to the new conviction sentences.” Appellee’s

Brief at 9-10. [9] Ind. Trial Rule 60(B) provides in part that that “[o]n motion and upon such

terms as are just the court may relieve a party . . . from a judgment . . . for the

following reasons: . . . (6) the judgment is void; (7) the judgment has been

satisfied, released, or discharged, . . . or (8) any reason justifying relief from the

operation of the judgment . . . .” [10] We review a denial of a motion for relief from judgment for abuse of discretion.

Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g

denied. The burden is on the movant to establish ground for Trial Rule 60(B)

relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). “[A] motion for

relief from judgment under Indiana Trial Rule 60(B) is not a substitute for a

direct appeal.” Id. See also S.E. v. State, 744 N.E.2d 536, 539 (Ind. Ct. App.

2001) (“[I]t is firmly established that a motion for relief under T.R. 60(B) cannot

be used as a substitute for a direct appeal, nor can it be used to revive an expired

attempt to appeal.”) (citing Perkins v. State, 718 N.E.2d 790, 792 (Ind. Ct. App.

1999)). “Trial Rule 60(B) motions address only the procedural, equitable

grounds justifying relief from the legal finality of a final judgment, not the legal

merits of the judgment.” In re Paternity of P.S.S., 934 N.E.2d at 740 (quoting

Mid-West Fed. Sav. Bank v. Epperson, 579 N.E.2d 124, 129 (Ind. Ct. App. 1991),

reh’g denied).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1214 | December 23, 2020 Page 5 of 6 [11] To the extent Dixon suggests the trial court’s orders dated April 27, 2017, and

July 11, 2018, were void based upon a lack of authority, we disagree. A trial

court has statutory authority to revoke a defendant’s probation and order an

executed sentence if a defendant violates the conditions of his probation at any

time during the probationary period. See Ind. Code § 35-38-2-3(h). Further, we

cannot say that Dixon has developed a cogent argument or any other alleged

grounds for relief under Rule 60(B). [12] For the foregoing reasons, we affirm. [13] Affirmed.

Vaidik, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1214 | December 23, 2020 Page 6 of 6