Nicholas Breedlove v. State of Indiana

Oct 31 2014, 9:58 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NICHOLAS BREEDLOVE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1404-CR-240
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jose Salinas, Judge
Cause No. 49G14-1312-FD-80194
October 31, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Nicholas Breedlove (“Breedlove”) appeals the trial court’s order revoking his
placement in community corrections for his theft conviction. On appeal, he argues that
the trial court violated his due process rights by revoking his community corrections
placement without first finding that a violation occurred. However, less than a month
after the trial court revoked his placement, Breedlove was released from prison. Because
there is no effective relief we can provide, Breedlove’s argument is moot, and we dismiss
his appeal.
We dismiss.
FACTS
On December 19, 2013, Breedlove was arrested for stealing syringes from
Eskenazi Hospital in Indianapolis. On the same day, the State charged Breedlove with
theft, a Class D felony,1 and possession of paraphernalia, a Class A misdemeanor.2 On
February 14, 2014, Breedlove pled guilty to theft and agreed to a 365-day executed
sentence. In determining his sentence, placement of executed time was left to the court’s
discretion. However, probation and alternative misdemeanor sentencing were expressly
excluded from the court’s consideration. That day, the trial court sentenced Breedlove to
365 days in community corrections work release. However, it stated that it would
1
IND. CODE § 35-43-4-2(a). We note that effective July 1, 2014, a new version of this theft statute was
enacted and that Class D felony theft is now a Class A misdemeanor or a Level 5 or 6 felony, depending
on the circumstances. Because Breedlove committed his crimes in 2013, we will apply the statute in
effect at that time.
2
IND. CODE § 35-48-4-8.3(a)(1)(b).
2
entertain a motion to modify the sentence if the court received certain information about
his criminal history in Arizona.
Breedlove filed a motion to have his sentence modified to home detention on
March 3, 2014. However, on March 11, 2014, Marion County Community Corrections
filed a notice of community corrections violation alleging that Breedlove “refused to
remain at Duvall Residential Center without harming himself.” (App. 41). The trial
court conducted several hearings, taking evidence from Breedlove and the State. The
trial court ultimately found that Breedlove did not violate his community corrections
placement, but it stated that it was not comfortable placing him back in work release after
community corrections raised their safety concerns. On April 3, 2014, the trial court
revoked Breedlove’s community corrections placement and ordered the rest of his
sentence served at the Department of Correction. Breedlove filed a notice of appeal on
April 10, 2014. While this appeal was pending, Breedlove was released from the
Department of Correction on or about May 2, 2014.
DECISION
Breedlove argues that the trial court violated his due process rights by revoking his
community corrections placement without first finding that a violation occurred. He
requests that we reverse the trial court’s order placing him in the Department of
Correction. However, Breedlove completed his sentence and was released from the
Department of Correction on or about May 2, 2014. Consequently, it appears that
Breedlove’s appeal is moot.
3
This court has discussed a similar moot appeal in Bell v. State, 1 N.E.3d 190 (Ind.
Ct. App. 2013). In that case, Bell attended the murder trial of his brother and made
intimidating statements to witnesses outside of the courtroom. After taking testimony
from witnesses to Bell’s statements, the trial court ordered him into custody for the
remainder of the trial. Id. at 191. The trial court appointed a public defender for Bell and
held a sentencing hearing for the contempt violation. Id. The trial court sentenced him to
ninety (90) days in the Vanderburgh County Jail with no good time credit. Id. at 192.
Bell appealed, but he was released from the jail during the pendency of his appeal. Both
Bell and the State agreed that his appeal was moot, and we dismissed, noting the
following:
[W]here the principal questions at issue cease to be of real controversy
between the parties, the errors assigned become moot questions and this
court will not retain jurisdiction to decide them. Stated differently, when
we are unable to provide effective relief upon an issue, the issue is deemed
moot, and we will not reverse the trial court’s determination where
absolutely no change in the status quo will result.
Id. (quoting Jones v. State, 847 N.E.2d 190, 200 (Ind. Ct. App. 2006) (citations and
quotations omitted), trans. denied).
In this case, the Department of Correction released Breedlove less than a month
after he filed his notice of appeal. As such, we cannot grant the relief he seeks, and his
appeal is moot.
However, we note that “although moot cases are usually dismissed, Indiana courts
have long recognized that a case may be decided on its merits under an exception to the
general rule when the case involves questions of ‘great public interest.’” In re Lawrance,
4
579 N.E.2d 32, 37 (Ind. 1991). “Cases in this category typically raise important policy
concerns and present issues that are likely to recur.” Mosley v. State, 908 N.E.2d 599,
603 (Ind. 2009). This case does not present an important policy question. Rather, just as
we found in Bell, Breedlove’s appeal is merely review of alleged error. Bell, 1 N.E.3d at
193.
Breedlove’s release from prison less than a month after he filed his appeal
rendered his argument moot, and we dismiss this case.
Dismissed.
NAJAM, J., and BAILEY, J., concur.
5