James Daher, Jr. v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Jul 06 2012, 9:27 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
JAMES DAHER, JR. GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES DAHER, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 56A03-1201-CR-32
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE NEWTON SUPERIOR COURT
The Honorable Daniel Molter, Judge
Cause No. 56D01-0901-FB-2
July 6, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
James Daher, Jr., appeals the trial court’s denial of his verified motion for relief
from judgment. We affirm.
Issue
Daher raises one issue on appeal, which we restate as whether the trial court
properly denied his verified motion for relief from judgment.
Facts
On May 17, 2010, Daher was convicted in Newton County of conspiracy to
commit escape with a deadly weapon as a Class B felony. He was sentenced to twenty
years. He appealed his conviction, and it was affirmed by this court. Daher v. State, 941
N.E.2d 571 (Ind. Ct. App. 2011).
On January 4, 2012, Daher filed a verified motion for relief from judgment, which
challenged the jurisdiction of the State and Newton County to charge, arrest, try, convict,
and sentence him. The foundation of Daher’s argument was derived from a published
order finding attorney misconduct and imposing discipline on James E. Barce, the
prosecuting attorney in Daher’s underlying case. In the Matter of James E. Barce, 934
N.E.2d 732 (Ind. 2010).
Barce became the full-time prosecuting attorney in Newton County in 2005. On
August 5, 2005, Barce signed an affidavit of inactivity, which placed his law license on
inactive status. In the affidavit, Barce stated under the penalties of perjury that he was
not engaged in the practice of law in Indiana. Barce signed a similar affidavit in 2006,
2
2007, and 2008. Barce’s inactive status allowed him to pay a reduced annual registration
fee.
In February 2009, it came to light that Barce was practicing without an active law
license. Barce then immediately reactivated his license and self-reported to the
disciplinary commission. The hearing officer found no aggravating circumstances, and
Barce was found to have engaged in the unauthorized practice of law and conduct
prejudicial to the administration of justice. Barce was publicly reprimanded for his
misrepresentations.
Daher’s motion alleged that, because Barce filed no legal appearance, the probable
cause affidavit, warrants, charges, trial, verdict, and judgment were all legally null and
void and that by extension the State had no legal right as a matter of law to prosecute and
imprison him. The trial court denied Daher’s motion on January 5, 2012. Daher now
appeals.
Analysis
Daher argues that the trial court erred in denying his motion for relief from
judgment. Daher claims that the State had no legal right to prosecute him because the
State’s representative, Barce, did not have an active license to practice law. This is an
incorrect interpretation of the law.1
1
The State makes no argument that Daher was required to file a post-conviction relief petition, as
opposed to a motion for relief from judgment.
3
In reference to his motion for relief from judgment, Daher contends that the State
waived any argument for appellate review because it failed to answer, contradict, deny, or
refute Daher’s claims in the trial court. This argument is unfounded. Daher filed his
motion with the trial court on January 4, 2012. The motion was denied by the trial court
on January 5, 2012. The State had no opportunity to respond to Daher’s arguments in the
trial court. One day is surely insufficient time for the State to become aware of the filing
of the motion and then to make an argument against the motion in the trial court. The
State did not waive any of its arguments as appellee by not making such arguments in the
trial court.
The lack of authority of an unlicensed de facto prosecutor must result in harm to
the defendant to constitute reversible error. Anderson v. State, 699 N.E.2d 257, 260 (Ind.
1998) (citing Cox v. State, 493 N.E.2d 151, 160 (Ind. 1986)). Daher cites no
distinguishing circumstances in the instant appeal, so we apply the Anderson holding and
find Barce to be a de facto prosecutor. Daher frames his arguments as strictly
jurisdictional, but in fact they are all based on Barce’s inactive law license. Daher cites
no evidence that would suggest that Barce’s inactive license prejudiced Daher in any
way. It is insufficient to prove only that Barce’s license was inactive. See Anderson, 699
N.E.2d at 260. Some harm must accompany this proof, and no harm has been alleged or
substantiated by Daher. We also note that in our Supreme Court’s order disciplining
Barce it gave no indication that his misconduct affected the validity of the cases he tried.
4
Conclusion
The trial court correctly denied Daher’s motion, and we find that Barce’s actions
as an unlicensed de facto prosecutor did not harm or prejudice Daher in any manner. We
affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
5