Geraldine Holliday v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 09 2020, 7:35 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Hanson Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Geraldine Holliday, April 9, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1170
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy Davis,
Appellee-Plaintiff. Judge
The Honorable Samuel R. Keirns,
Magistrate
Trial Court Cause Nos.
02D04-1808-F6-924
02D04-1812-F6-1500
Shepard, Senior Judge.
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[1] Geraldine Holliday and her boyfriend Richard Bullock have had a tumultuous
relationship that has produced a collection of domestic disturbance runs, no
contact orders, criminal charges, re-arrests, and guilty pleas. Her appeal
contends that all of these were either void ab initio or voidable as violations of
due process or excessive. We affirm.
Facts and Procedural History
[2] On April 17, 2018, Holliday and Bullock engaged in an argument that turned
physical and concluded with Holliday breaking a window of Bullock’s
apartment with a brick. As a result of this incident, Holliday was charged with
domestic battery. The court entered a pretrial no contact order (NCO) at
Holliday’s initial hearing as a condition of her release. Holliday signed the
NCO acknowledging that she had read and understood it and that she had
received a copy of it. The domestic battery charge was later dismissed.
[3] Late in the evening on the same day that Holliday was released from custody
with regard to the brick incident, police were called to Bullock’s apartment on
report of a disturbance. Holliday was found in the apartment, and Bullock told
the police there was an NCO in effect. The State charged Holliday with
invasion of privacy. Holliday pleaded guilty to the charge at her initial hearing.
She was released, and the court entered an NCO pending sentencing, which
Holliday acknowledged reading, understanding, and receiving. As part of
Holliday’s sentence, the court issued an NCO for the term of her probation.
Holliday signed a copy of this NCO, indicating she had read and understood
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the order and that she understood that violation of the order may cause
additional charges to be filed against her.
[4] As a result of the brick incident, the State also charged Holliday in a separate
1
cause with criminal mischief. Holliday pleaded guilty to this charge at her
initial hearing, and the court entered an NCO as a condition of her release. The
court provided Holliday with a copy of the NCO, which she signed to
acknowledge her receipt, reading, and understanding. At Holliday’s sentencing
hearing a month later, the court entered an NCO as a condition of her
probation, and Holliday again acknowledged reading and understanding the
order, as well as understanding that violating it could result in additional
charges.
[5] On August 1, 2018, police were dispatched to a church. When they arrived,
they found Holliday and Bullock in the church parking lot drinking beer. The
State charged Holliday with invasion of privacy, and an NCO was issued at her
initial hearing. The order contains her signature indicating that she read,
understood, and received a copy. The invasion of privacy charge was dismissed
on August 7.
1
Holliday has not included a copy of any documents from this case in her appendix. Contra Ind. Appellate
Rule 50(B)(1)(a) (stating the appellant’s appendix in a criminal appeal shall contain “the Clerk’s Record,
including the chronological case summary[.]”). Pursuant to Indiana Evidence Rule 201, however, we have
taken judicial notice of the records of the court below necessary to inform our decision.
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[6] On the same day, the State charged Holliday with Level 6 felony invasion of
2
privacy in F6-924 for her violation of the NCO on August 1. At her initial
hearing, the court issued an NCO against Holliday to remain in effect during
the pendency of the cause. As before, she signed the order to acknowledge that
she had read, understood, and received a copy.
[7] In December 2018, officers were dispatched to a residence concerning a report
of a domestic dispute. The officers made contact with Holliday who had
slurred speech and a strong odor of alcoholic beverages. She indicated that she
and Bullock had been drinking and had engaged in a physical altercation. She
was charged in F6-1500 with another offense of felony invasion of privacy for
violating the NCO issued by the court in F6-924.
[8] In April 2019, the court held a bench trial in both F6-924 and F6-1500 and
found Holliday guilty as charged on both counts. The court sentenced Holliday
to one year in F6-924 and to two years suspended to probation in F6-1500.
Issues
[9] Holliday presents at least eight issues, which we consolidate and restate as two:
I. Whether Holliday was denied due process in the course of
the issuance of the no contact orders; and
2
Ind. Code § 35-46-1-15.1 (2018).
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II. Whether the no contact orders issued against Holliday
constitute excessive bail.
Discussion and Decision
I. Due Process
[10] Holliday contends that the pretrial NCOs issued at her initial hearings were
issued without due process because she had neither the assistance of counsel
nor an opportunity to be heard. She also alleges the NCOs were issued without
any supporting evidence. Appellant’s Br. p. 21.
[11] At an initial hearing in a criminal case, our state requires the judicial officer to
inform the defendant of the nature of the charge and her various rights,
including that she has a right to counsel at no expense if she is indigent and the
amount and conditions of bail. See Ind. Code § 35-33-7-5 (2019). Further, if a
defendant requests counsel and is found to be indigent, the judicial officer shall
assign counsel prior to the completion of the initial hearing. Ind. Code § 35-33-
7-6 (2004). Included in Indiana’s statutory scheme for preliminary proceedings
is Indiana Code section 35-33-8-3.2 (2018). This section provides that, as a
condition of bail, the trial court may require the defendant to refrain from
contact with an individual upon a showing of clear and convincing evidence
that the defendant poses a risk of physical danger to another person or the
community.
[12] With regard to these procedures, our Supreme Court has stated that “[a]n initial
hearing conducted under Indiana’s statutory scheme is not a critical stage of the
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criminal proceeding requiring the presence of counsel.” Hopper v. State, 957
N.E.2d 613, 616-17 (Ind. 2011) (citing Benner v. State, 580 N.E.2d 210
(Ind.1991)).
[13] As part of the preliminary proceedings, the pretrial NCOs were entered against
Holliday at her initial hearings. The State tendered affidavits of probable cause
providing evidence of Holliday’s violence toward Bullock to support the
issuance of the NCOs. The courts could well have found this evidence
adequate to sustain entry of the pretrial NCOs under Section 35-33-8-3.2. We
have no evidence before us that the trial courts issuing the NCOs failed to
follow the statutory scheme with regard to any of the preliminary proceedings
or that their actions violated Holliday’s due process under these circumstances.
[14] Further, any concerns Holliday may have possessed remained ripe for
objections and motions at a later date, and it appears that at the various stages
of the proceedings Holliday had counsel who could have challenged the entry
of the NCOs. However, at no point in the proceedings in which the NCOs
were entered did Holliday ever challenge their entry or suggest that their entry
violated her due process rights.
[15] Thus, Holliday’s contentions are nothing more than an attempt to collaterally
attack the validity of the NCOs that were issued in prior proceedings. As we
stated, in none of those proceedings did Holliday ever object to the entry of the
NCOs on any grounds, nor did she appeal to challenge their validity after they
were imposed. Instead, she repeatedly and willfully disregarded the terms of
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the NCOs and waited until charges were brought in subsequent, separate causes
to first assert that her rights had been violated. Consequently, she is precluded
from challenging the validity of the NCOs.
[16] Finally, contrary to the bulk of Holliday’s argument, we note that the right to
interact with others is not without limitation. In Justice Jackson’s well-known
words, the Constitution is not “a suicide pact.” Terminiello v. City of Chicago,
337 U.S. 1, 37 (1949) (dissenting opinion). The Constitution itself takes
account of state interest and public necessity. For example, individuals may
interact, but an individual may not batter, stalk, harass, or intimidate another
individual. See, e.g., Ind. Code §§ 35-42-2-1 (2018), 35-42-2-1.3 (2019), 35-45-
10-1 (1993), 35-45-2-2 (1996), 35-45-2-1 (2019).
II. Excessive Bail or Punishment
[17] Our conclusion above that Holliday’s assertions amount to an improper
collateral attack on orders issued in prior proceedings applies equally here.
Nonetheless, we are compelled to note, first, that Holliday claims the pretrial
NCOs constitute excessive bail. However, as we stated above, the right to
interact with others is not without its limits.
[18] Second, the Indiana Constitution prohibits excessive bail. IND. CONST. art. I,
§ 16. “Bail may not be set higher than that amount reasonably required to
assure the defendant’s appearance in court or to assure the physical safety of another
person” if the court finds that the defendant poses a risk to the physical safety of
another person. Ind. Code § 35-33-8-4 (b) (2017) (emphasis added). Holliday
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makes no showing, and we cannot rationally find, based on the facts presented
here, that ordering her to have no contact with Bullock was excessive bail.
Conclusion
[19] We conclude Holliday was afforded due process and that her bail was not
excessive.
[20] Affirmed.
Najam, J., and Tavitas, J., concur.
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