Ernest E. Dixon v. State of Indiana (mem. dec.) ( 2020 )

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.
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[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
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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.
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[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).
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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).
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[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.
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