State of Indiana v. Thomas Dale Mozee (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 28 2017, 8:42 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT
Curtis T. Hill. Jr.
Attorney General of Indiana
Jodi Katheryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, April 28, 2017
Appellant-Plaintiff, Court of Appeals Case No.
10A04-1610-CR-2336
v. Appeal from the
Clark Circuit Court
Thomas Dale Mozee, The Honorable David Mosley,
Appellee-Defendant. Judge Pro Tempore
Trial Court Cause No.
10C02-0608-CM-253
Kirsch, Judge.
[1] The State of Indiana appeals the dismissal of its petition to revoke probation
against Thomas Dale Mozee.
Court of Appeals of Indiana | Memorandum Decision 10A04-1610-CR-2336 | April 28, 2017 Page 1 of 3
[2] We reverse and remand.
Facts and Procedural History
[3] The State charged Mozee with invasion of privacy, a Class A misdemeanor on
August 22, 2006. Mozee entered into a plea agreement, and pursuant to that
agreement the trial court sentenced him to one year, with seven and one-half
months executed and four and one-half months suspended to “strict” terms of
probation. App. at 3, 27-32, 34. On December 1, 2006, Mozee was released to
probation with credit for time served.
[4] Mozee failed to attend probation appointments on December 5, 2006, January
19, 2007, and January 29, 2007, and he failed to report to his probation officer.
The State filed a petition to revoke probation on March 19, 2007, and a warrant
was issued for his arrest. Nearly ten years later, on August 10, 2016, the
warrant was served, and Mozee was arrested. On September 16, 2016, the trial
court cited the length of time between the violation and the arrest and dismissed
the revocation proceeding over the State’s objection. The State now appeals.
Discussion and Decision
[5] Mozee did not file an appellee’s brief. In such cases, we will not develop an
argument for the appellee, and we apply a less stringent standard of
review. Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). We may
reverse if the appellant establishes prima facie error, which is error at first sight,
on first appearance, or on the face of it. Id. The appellee’s failure to provide
Court of Appeals of Indiana | Memorandum Decision 10A04-1610-CR-2336 | April 28, 2017 Page 2 of 3
argument does not relieve us of our obligation to correctly apply the law to the
facts in the record to determine whether reversal is required. Id.
[6] Indiana Code section 35-38-2-3(c), provides that “[t]he issuance of a summons
or warrant tolls the period of probation until the final determination of the
charge.” The purpose of subsection (c) is “to allow a trial court to revoke
probation and order a person returned to jail when it determines that person
violated probation, even if the disposition occurs after the original term of
probation has expired.” Trammell v. State, 45 N.E.3d 1212, 1216 n.2 (Ind. Ct.
App. 2015). This statutory provision “precludes a probationer from violating
the terms of his probation and fleeing the jurisdiction until the term of the
suspended sentence elapses, thereby thwarting the State’s efforts to revoke his
probation.” Mumford v. State, 651 N.E.2d 1176, 1178 (Ind. Ct. App. 1995)
(citing Alley v. State, 556 N.E.2d 15, 16 (Ind. Ct. App. 1990), trans. denied).
[7] Here, the issuance of the warrant tolled the period of probation until resolution
of the revocation proceeding. Mozee failed to report for his probation or to
maintain any contact with the probation department. His failure tolled the
period of probation from the date of issuance of the warrant until “the final
determination on the petition to revoke. . .” Id. at 1179. The trial court erred in
dismissing the probation revocation proceeding prior to is resolution.
[8] Reversed and remanded.
[9] Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 10A04-1610-CR-2336 | April 28, 2017 Page 3 of 3