MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Jun 30 2020, 8:14 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     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 JUSTIN                            ATTORNEYS FOR APPELLEE
P. NORTON                                                Curtis T. Hill, Jr.
Cara Schaefer Wieneke                                    Attorney General
Wieneke Law Office, LLC
Brooklyn, Indiana                                        Matthew B. Mackenzie
                                                         Deputy Attorney General
ATTORNEY FOR APPELLANT                                   Indianapolis, Indiana
RANDALL E. MYERS
Kay A. Beehler
Terre Haute, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin P. Norton and Randall E.                          June 30, 2020
Myers,                                                   Court of Appeals Case No.
Appellants-Defendants,                                   19A-CR-2389
                                                         Interlocutory Appeal from the
        v.                                               Vermillion Circuit Court
                                                         The Honorable Robert M. Hall,
State of Indiana,                                        Senior Judge
Appellee-Plaintiff                                       The Honorable Jill D. Wesch,
                                                         Judge
                                                         Trial Court Cause Nos.
                                                         83C01-1905-F6-81
                                                         83C01-1904-F6-60




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020             Page 1 of 11
      Crone, Judge.


                                             Case Summary
[1]   Justin P. Norton and Randall E. Myers (collectively Appellants) were charged

      in separate causes with level 6 felony failure to return to lawful detention. They

      filed separate motions to dismiss, each one claiming that he was not in “lawful

      detention,” as defined by statute. The trial court denied both motions. In this

      consolidated interlocutory appeal, Appellants contend that the trial court erred

      in denying their motions to dismiss. We affirm.


                                 Facts and Procedural History
[2]   The facts with respect to Norton are as follows. In April 2019, Norton was

      being held in the Vermillion County Jail on charges of level 6 felony possession

      of a syringe and class C misdemeanor possession of paraphernalia. At that

      time, he was the subject of a hold in Vigo County in connection with a different

      cause. Norton filed a motion for release on recognizance. On April 11, 2019,

      the trial court issued an order granting the motion and ordering Norton’s

      release from the Vermillion County Jail and his transfer to Vigo County for the

      hold. The order stated that on his release from the Vigo County Jail, Norton

      must enter a substance abuse rehabilitation facility, comply with all terms and

      conditions of the facility, and complete the program. The order also specified,

      “If at any time Defendant is discharged from the program before completion,

      leaves voluntarily or submits a positive drug screen while in the rehabilitation

      program, she [sic] shall report back to the Vermillion County Jail.” Appellants’


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 2 of 11
      App. Vol. 2 at 10. Norton reported to Vigo County for the hold and was

      released the next day. He did not enter a rehabilitation facility and did not

      report back to the Vermillion County Jail.


[3]   The State charged Norton with level 6 felony failure to return to lawful

      detention. Norton filed a motion to dismiss, which the trial court denied. He

      sought and was granted certification of the trial court’s order for interlocutory

      appeal.


[4]   The facts with respect to Myers are as follows. In December 2018, the State

      charged Myers with level 6 felony battery on a public safety official, class B

      misdemeanor disorderly conduct, class B misdemeanor public intoxication, and

      a habitual offender count. On March 5, 2019, he pled guilty to the level 6

      felony battery charge. The trial court found a factual basis and took the guilty

      plea under advisement. Pending sentencing, the trial court released Myers from

      the Vermillion County Jail and ordered him to enroll in and complete inpatient

      substance abuse treatment at the Truman House. The release order specified

      that Myers’s next court date would be June 12, 2019, at 9:30 a.m. State’s Ex. 1.

      The order also stated, “if you leave the Truman House for any reason you are

      to immediately return to the jail.” Id. On April 9, 2019, Myers was expelled

      from Truman House due to rules violations but did not return to the jail as

      ordered.


[5]   The State charged Myers with level 6 felony failure to return to lawful

      detention. Myers filed a motion to dismiss, which the trial court denied. He


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 3 of 11
      sought and was granted certification of the trial court’s order for interlocutory

      appeal. He also moved to consolidate his cause with Norton’s for purposes of

      the appeal, which the trial court granted. We accepted jurisdiction of

      Appellants’ consolidated interlocutory appeal. 1 Additional facts will be

      provided as necessary.


                                       Discussion and Decision
[6]   Appellants contend that the trial court erred in denying their motions to

      dismiss. We typically review the trial court’s ruling on a motion to dismiss for

      an abuse of discretion. State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017).

      However, Appellants’ arguments involve statutory interpretation and therefore

      are matters of law, which we review de novo. Montgomery v. State, 14 N.E.3d

      76, 78 (Ind. Ct. App. 2014). Our objective is to give effect to the intent of the

      legislature. Rowe v. State, 813 N.E.2d 1232, 1234 (Ind. Ct. App. 2004), trans.

      denied. “We must give words their common and ordinary meaning, while

      examining the statute as a whole.” Id. “We presume the legislature intended

      the language to be applied in a logical manner consistent with the statute’s

      underlying policy and goals.” Id. (quoting Anglin v. State, 787 N.E.2d 1012,

      1016 (Ind. Ct. App. 2003), trans. denied (2004)).




      1
        The State has filed a motion to strike Myers’s reply brief, which we deny in an order issued
      contemporaneously with this decision.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020                     Page 4 of 11
      Appellants filed separate motions to dismiss the charge of level 6 felony failure

      to return to lawful detention. Indiana Code Section 35-44.1-3-4(c) defines this

      offense as follows:


              A person who knowingly or intentionally fails to return to lawful
              detention following temporary leave granted for a specified
              purpose or limited period commits failure to return to lawful
              detention, a Level 6 felony. However, the offense is a Level 5
              felony if, while committing it, the person draws or uses a deadly
              weapon or inflicts bodily injury on another person.


[7]   Appellants contend that they did not violate the failure-to-return statute because

      they were not in lawful detention as defined by Indiana Code Section 35-31.5-2-

      186:


              (a) “Lawful detention” means:

              (1) arrest;

              (2) custody following surrender in lieu of arrest;

              (3) detention in a penal facility;

              (4) detention in a facility for custody of persons alleged or found
              to be delinquent children;

              (5) detention under a law authorizing civil commitment in lieu of
              criminal proceedings or authorizing such detention while
              criminal proceedings are held in abeyance;

              (6) detention for extradition or deportation;

              (7) placement in a community corrections program’s residential
              facility;
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 5 of 11
              (8) electronic monitoring;

              (9) custody for purposes incident to any of the above including
              transportation, medical diagnosis or treatment, court
              appearances, work, or recreation; or

              (10) any other detention for law enforcement purposes.

              (b) Except as provided in subsection (a)(7) and (a)(8), the term
              does not include supervision of a person on probation or parole
              or constraint incidental to release with or without bail.


[8]   There are relatively few cases interpreting these statutes. The most similar is

      Rowe, 813 N.E.2d at 1233, in which another panel of this Court interpreted the

      predecessor statute, which contained a list of “lawful detention” definitions

      identical to the list found in subsection (a) of the current statute. Rowe was

      sentenced to 180 days following his class D felony conviction for being a

      habitual traffic violator. Id. He sought a stay of execution of his sentence so

      that he could perform his summer construction job in other cities. Id. The trial

      court agreed to suspend execution and remanded him to the custody of the

      county sheriff for execution of his sentence to begin “October 1, 2001 at 9:00

      a.m.” Id. On September 30, 2001, Rowe phoned the county jail and asked for

      an extension, which was denied. Id. Notwithstanding, he went to work and

      did not report to jail on October 1 as ordered. Id. He was convicted of failure

      to return to lawful detention and challenged the sufficiency of the evidence to

      support his conviction, claiming that “he was never lawfully detained after he

      was sentenced and therefore there was no lawful detention to which he failed to

      return.” Id. at 1234. We affirmed Rowe’s conviction, reasoning that when he

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 6 of 11
      was present before the trial court for sentencing, he was in “detention for law

      enforcement purposes” under subsection (a)(10) and failed to return to lawful

      detention in the county jail. Id. at 1235. 2 Thus, the Rowe court articulated that

      to be convicted of failure to return to lawful detention, one must have been in

      lawful detention in the first place.


[9]   Here, unlike the defendant in Rowe, Norton and Myers were in the county jail

      at the time they were granted temporary release. Like Rowe, they were

      temporarily released for limited purposes and were subject to orders to return to

      jail in certain specified circumstances (here, noncompliance with court-ordered

      rehabilitation). They claim that their circumstances did not fit within the

      statutory definition of lawful detention. Indiana Code Section 35-31.5-2-

      186(a)(3) defines lawful detention in pertinent part as “detention in a penal

      facility.” A county jail is a penal facility. Ind. Code § 35-31.5-2-232.

      Nevertheless, Appellants claim that their circumstances amounted to a

      constraint incidental to release with or without bail, thus placing them within




      2
        In interpreting the “lawful detention” statute, the Rowe court examined our earlier decision in Anglin, 787
      N.E.2d at 1017, where the defendant fled the courthouse after being ordered to sit in the hall after his
      sentencing hearing to await transport to the jail. He was convicted of escape and challenged the sufficiency
      of evidence to support his conviction, claiming that he was not being detained for law enforcement purposes
      at the time he fled the courthouse. Id. The Anglin court articulated that being in “detention for law
      enforcement purposes” is not limited to circumstances in which a law enforcement officer has control of an
      individual. Id. The Rowe court also cited Mesarosh v. State, 801 N.E.2d 200, 204 (Ind. Ct. App. 2004), where
      a defendant who was placed under arrest asked the officer’s permission to drop off his passenger and take his
      truck home before going to jail and then fled on foot after parking his truck at home. The Mesarosh court
      found the evidence insufficient to support the defendant’s escape conviction but sufficient to support his
      conviction for failure to return to lawful detention, reasoning that Mesarosh had been granted temporary
      leave for a specific purpose of transporting his passenger and parking his truck at home and failed to return to
      lawful detention. Id. at 204.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020                       Page 7 of 11
       the exception found in subsection (b). They therefore claim that the State

       should have filed a petition to revoke release and failed to do so. The State was

       not required to file a petition to revoke bail or release. See Ind. Code § 35-33-8-

       5(d) (“The court may revoke bail or an order for release on personal

       recognizance upon clear and convincing proof by the state that … while

       admitted to bail the defendant … violated any condition of the defendant’s

       current release order”) (emphasis added).


                                                   A. Norton

[10]   Norton first focuses on the timing of his release, arguing that because it was

       pretrial release, it constituted release with or without bail subject to the

       constraint of entering and completing rehabilitation and therefore fell within

       subsection (b)’s exception to the definition of lawful detention. On this basis,

       he asserts that he was not in “lawful detention” and therefore cannot be subject

       to prosecution for knowingly or intentionally failing to return to it. In making

       this argument, he conflates the application of the statute defining lawful

       detention with the statute that lays out the elements of the offense with which

       he was charged: failure to return to lawful detention. In other words, he fails

       to account for the clear language of subsection (a)(3) listing a penal facility as

       lawful detention and the clear language of his release order specifying, “If at

       any time Defendant is discharged from the program before completion, leaves

       voluntarily or submits a positive drug screen while in the rehabilitation

       program, she [sic] shall report back to the Vermillion County Jail.” Appellants’

       App. Vol. 2 at 10 (emphasis added). Norton failed to comply with the order in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 8 of 11
       two ways: first, he failed to attend and complete rehabilitation; and second, he

       failed to obey the portion of the order that required him to return to the county

       jail. The only aspect of Norton’s release that possibly could have been

       construed as a constraint on release with or without bail would have been his

       mandated enrollment in and completion of a rehabilitation program. But the

       order did not end there; rather, it included an express order to return to the jail

       if he failed to complete the program. Norton’s noncompliance with

       rehabilitation automatically triggered his duty to return to the county jail, and a

       petition to revoke was not a necessary condition precedent to filing charges for

       failure to return to lawful detention.


[11]   Norton also focuses his argument on the fact that the written release order did

       not specify which rehabilitation facility he was required to enter. We note that

       the transcript of the hearing on the motion to dismiss includes several references

       indicating that Norton was to attend rehabilitation at Club Soda, but even

       absent those references, we do not find a lack of specificity in the written order

       to be determinative. The clear intent of the release order was that Norton was

       to be in one of three places: the Vigo County Jail serving the hold, a

       rehabilitation facility, or the Vermillion County Jail. Having opted out of

       rehabilitation, he was under a clear, express order to return to the Vermillion

       County Jail. What matters for purposes of the offense charged is not where

       Norton was required to go while he was out on release but where he was prior

       to release and where he was ordered to return. Because the county jail is a

       penal facility, it falls within the definition of lawful detention, and his failure to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 9 of 11
       return to it following temporary leave for a specified purpose puts him squarely

       within the scope of Indiana Code Section 35-44.1-3-4(c).


                                                    B. Myers

[12]   Myers’s circumstances are procedurally different in that his temporary release

       from jail for a specified purpose occurred after he pled guilty to battery in

       Vermillion County and before sentencing. Like Norton, his release was for the

       specific purpose of completing a drug treatment program. Myers’s written

       release order identified the place for his rehabilitation as the Truman House.

       His order also stated, “if you leave the Truman House for any reason you are to

       immediately return to the jail.” State’s Ex. 1. Myers was expressly ordered to

       be in one of two places: the Truman House or the Vermillion County Jail.

       Like Norton, his failure was two-fold. His expulsion from the Truman House

       for rules violations amounted to a failure to comply with the terms of his

       temporary release for a specific purpose, which automatically triggered the

       requirement that he return immediately to the Vermillion County Jail. The

       county jail being a penal facility, Myers’s failure to return to it rendered him

       subject to prosecution for failure to return to lawful detention. Ind. Code § 35-

       44.1-3-4(c).


[13]   In sum, both Norton and Myers were being held in a penal facility, the

       Vermillion County Jail, and were released for the specific purpose of

       completing rehabilitation. They were not free to roam. Their noncompliance

       with rehabilitation triggered in each the duty to return to lawful detention in

       that same penal facility. The State was not required to file petitions to revoke
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 10 of 11
       their release as a condition precedent to filing charges against each of them for

       failure to return to lawful detention. Based on the foregoing, we find no error

       in the trial court’s denial of Appellants’ motions to dismiss. Consequently, we

       affirm.


[14]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2389| June 30, 2020   Page 11 of 11
