Andrew Machi v. State of Indiana ( 2012 )

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
FILED
Oct 11 2012, 8:28 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
T. MICHAEL CARTER GREGORY F. ZOELLER
Scottsburg, Indiana Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDREW MACHI, )
)
Appellant-Defendant, )
)
vs. ) No. 36A04-1203-CR-166
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JACKSON CIRCUIT COURT
The Honorable William E. Vance, Judge
Cause No. 36C01-0209-FB-35
October 11, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Andrew Machi appeals the revocation of his probation. Machi raises one issue
which we revise and restate as whether the State timely filed its notice of violation. We
affirm.
The relevant facts follow. On June 17, 2004, Machi pled guilty to dealing in a
controlled substance as a class B felony in Jackson County, Indiana. On July 16, 2004,
the court sentenced Machi to ten years with four years suspended to probation. Machi
began serving his probation on May 24, 2007. At some point, Machi transferred his
probation to the State of California. Carrie Tormoehlen, Machi’s probation officer in
Indiana, received a notice of arrival informing her that Machi had arrived in California
for supervision.
In February 2011, Machi committed burglary and theft in Oregon, and was
convicted for these offenses on March 29, 2011. At some point, Tormoehlen had not
received a case closure notice from California and sent a request for a case closure but
did not receive a response. On October 4, 2011, Tormoehlen discovered the burglary that
Machi had committed by having a records check run through the Jackson County
Sheriff’s Department.
On October 20, 2011, the State filed a petition to revoke probation alleging that
Machi committed new criminal offenses in Oregon between February 11 and 13, 2011,
and that he was convicted on March 29, 2011. On January 18, 2012, Machi filed a
motion to dismiss probation revocation and requested dismissal “for the reason that
California as the agent for Jackson County, Indiana released [Machi] from probation on
July 16, 2008.” Appellant’s Appendix at 16.
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On March 5, 2012, the court held a hearing, and Machi’s counsel withdrew the
motion to dismiss at the beginning of the hearing. Machi testified that he was told by a
probation officer in California that his probation was finished, but that he was informed
by the trial court that his probation would be four years and that the Interstate
Commission for Adult Offender Supervision listed the termination of supervision date as
May 24, 2011. The court revoked Machi’s probation and ordered that the suspended
sentence of four years be executed.
The issue is whether the State timely filed its notice of violation. Generally, a
probation revocation hearing is civil in nature, and the State needs to prove the alleged
violations by a preponderance of the evidence. Cox v. State, 706 N.E.2d 547, 551 (Ind.
1999), reh’g denied. We will consider all the evidence most favorable to supporting the
judgment of the trial court without reweighing that evidence or judging the credibility of
witnesses. Id. If there is substantial evidence of probative value to support the trial
court’s conclusion that a defendant has violated any terms of probation, we will affirm its
decision to revoke probation. Id. The violation of a single condition of probation is
sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).
The issue of compliance with notice requirements is a procedural matter to be
determined before trial by the court. Clark v. State, 958 N.E.2d 488, 491 (Ind. Ct. App.
2011) (citing Louth v. State, 705 N.E.2d 1053, 1059 (Ind. Ct. App. 1999), reh’g denied,
trans. denied). Accordingly, the determination of when the State received notice of an
alleged probation violation is left to the sound discretion of the trial court. Id. at 491-492.
Ind. Code § 35-38-2-3(a) provides:
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The court may revoke a person’s probation if:
(1) the person has violated a condition of probation during
the probationary period; and
(2) the petition to revoke probation is filed during the
probationary period or before the earlier of the
following:
(A) One (1) year after the termination of
probation.
(B) Forty-five (45) days after the state
receives notice of the violation.
(Emphases added). The forty-five-day deadline is only triggered in cases where the State
received notice of the violation less than forty-five days before the defendant’s
probationary term expired or after the term expired. Clark, 958 N.E.2d at 492.
Machi argues only that “[t]he record in this case is devoid of evidence as to
whether the State promptly presented its claim within 45 days of receiving notice of
Machi’s probation violation in Oregon.” Appellant’s Brief at 8. The State argues that
Machi’s probation officer in Indiana discovered on October 4, 2011, that Machi
committed the crimes of burglary and theft and filed a petition to revoke Machi’s
probation sixteen days later on October 20, 2011.
The record reveals that Machi’s probation officer first discovered on October 4,
2011, the February 2011 burglary that Machi had committed by having a records check
run through the Jackson County Sheriff’s Department. The State filed a petition to
revoke probation sixteen days later on October 20, 2011. Accordingly, we conclude that
the State met the requirement in Ind. Code § 35-38-2-3(a)(2)(B) that the petition to
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revoke probation be filed before forty-five days after the State receives notice of the
violation.
For the foregoing reasons, we affirm the trial court’s revocation of Machi’s
probation.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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