      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
