                                                                                    FILED
                                                                             Oct 31 2018, 9:25 am

                                                                                    CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Robert J. Little                                          Curtis T. Hill, Jr.
      Lafayette, Indiana                                        Attorney General of Indiana
                                                                Andrew Kobe
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Damien D. Murphy,                                         October 31, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A05-1709-CR-2319
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Laura W. Zeman,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                79D04-1608-CM-2925



      Pyle, Judge.


                                        Statement of the Case
[1]   In this interlocutory appeal, Damien Murphy (“Murphy”) appeals the trial

      court’s denial of his motion to dismiss two petitions to revoke his probation,

      which were both filed after his probationary period had ended. He argues that


      Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018                     Page 1 of 11
      the trial court does not have authority to hold a revocation hearing and make a

      final determination on any allegation within the revocation petitions because

      the trial court did not toll his probation pursuant to the tolling provision in the

      probation revocation statute.


[2]   We conclude that the tolling provision in the revocation statute does not apply

      to the facts of this case and note that the probation revocation statute sets out

      the trial court’s authority for holding a revocation hearing and entering a

      determination on a probation allegation in a timely-filed revocation petition.

      Because the first revocation petition was timely filed and the second revocation

      petition was not, we affirm the trial court’s denial of Murphy’s motion to

      dismiss the first revocation petition, reverse the trial court’s denial of Murphy’s

      motion to dismiss the second revocation petition, and remand for further

      proceedings on the first revocation petition.


[3]   We affirm in part, reverse in part, and remand.


                                                      Issue
              Whether the trial court abused its discretion by denying Murphy’s
              motion to dismiss the two probation revocation petitions.

                                                      Facts
[4]   On October 11, 2016, Murphy entered into a plea agreement and pled guilty as

      charged to Class B misdemeanor possession of marijuana. That same day, the

      trial court, pursuant to the plea agreement, sentenced Murphy to “180 days,

      suspended upon timely and satisfactory completion of all terms and conditions


      Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018   Page 2 of 11
      of [unsupervised] probation[,]” which included, among other conditions, the

      requirement to “[c]ontinue school at the Excel Center to obtain high school

      diploma and provide proof to [the] court.” (App. Vol. 2 at 11, 12). Under

      Murphy’s plea agreement, he also had a probation term requiring him to pay

      for court services and attend drug and alcohol evaluations within six months.

      The trial court set a probation review hearing for May 25, 2017, at which time

      Murphy was “to bring written proof of [the] completion of all probation

      requirements.” (App. Vol. 2 at 12).


[5]   When Murphy appeared at the probation review hearing on May 25, 2017, he

      had apparently not completed all of his probation requirements.1 That same

      day, the State filed a petition to revoke Murphy’s probation (“First Probation

      Revocation Petition”), alleging that Murphy had violated probation by: (1)

      failing to “[c]omplete all Court Services requirements for drug and alcohol

      evaluation, fees, referral, etc.[;]” and (2) failing to provide “[p]roof of Excel

      completion[.]” (App. Vol. 2 at 13). The trial court conducted an initial hearing

      on the petition that same day. The trial court did not issue a warrant or

      summons.


[6]   Shortly thereafter, on July 6, 2017, the State filed another petition to revoke

      probation (“Second Probation Revocation Petition”), alleging that Murphy had

      violated probation by “failing to maintain good and lawful behavior.” (App.




      1
          The transcript of the probation review hearing is not included in the record on appeal.


      Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018                   Page 3 of 11
      Vol. 2 at 20. Specifically, the State alleged that “on or about June 28, 2017,

      [Murphy] committed the offenses of Dealing in a narcotic Drug, Possession of a

      Narcotic Drug, Resisting Law Enforcement, Operating While Intoxicated

      Endangering a Person, Operating While Intoxicated with an ACE of .08 or

      More, and Possession of Marijuana[.]” (App. Vol. 2 at 20).


[7]   A few days later, on July 10, 2017, Murphy filed a motion to dismiss the two

      revocation petitions. He stated that his probationary period had ended on April

      8, 2017 and argued that both revocation petitions should be dismissed because

      they were filed outside the limits set out in INDIANA CODE § 35-38-2-3(a).

      Specifically, Murphy argued that the First Probation Revocation Petition

      should be dismissed because it was filed on May 25, 2017, which was forty-

      eight days after his probationary period had ended and that the Second

      Probation Revocation Petition should be dismissed because it alleged that he

      had violated probation on June 28, 2017, which was after his probationary

      period had ended. Additionally, Murphy argued that, even if the trial court

      were to find that the two revocation petitions were filed in accordance with

      INDIANA CODE § 35-38-2-3(a), the trial court “no longer ha[d] jurisdiction” to

      make a final determination of any allegation because the trial court had not

      issued a summons or warrant that would have tolled his probationary period as

      set out in INDIANA CODE § 35-38-2-3(c). (App. Vol. 2 at 34). He further argued

      that the “filing of a petition to revoke probation in and of itself d[id] not toll the

      period of probation” because “I.C. [§] 35-38-2-3(c) very clearly states that a




      Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018   Page 4 of 11
       period of probation is tolled only when a summons or warrant is issued.” (App.

       Vol. 2 at 35) (emphasis in original).


[8]    On July 27, 2017, the trial court held a hearing on Murphy’s motion to dismiss.

       During the hearing, the trial court determined that: (1) the First Probation

       Revocation Petition was timely filed because the State had filed it within forty-

       five days of receiving notice of the violation on May 25, 2017; (2) the filing of

       the First Probation Revocation Petition “toll[ed] the probationary period[;]”

       and (3) the Second Probation Revocation Petition was timely filed because

       Murphy’s probation had been tolled by the filing of the First Probation

       Revocation Petition. (Tr. Vol. 2 at 10). The trial court then issued an order

       denying Murphy’s motion to dismiss both revocation petitions.


[9]    Thereafter, upon Murphy’s motion, the trial court certified its order for an

       interlocutory appeal. Murphy then sought and was granted permission by our

       Court to file an interlocutory appeal. Murphy now appeals the trial court’s

       order denying his motion to dismiss.


                                                    Decision
[10]   Murphy appeals the trial court’s denial of his motion to dismiss the two

       probation revocation petitions. “We review a trial court’s denial of a motion to

       dismiss for an abuse of discretion, and we reverse only where the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances.”

       Frink v. State, 52 N.E.3d 842, 845 (Ind. Ct. App. 2016).



       Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018   Page 5 of 11
[11]   Resolution of this appeal requires us to review and interpret INDIANA CODE §

       35-38-2-3, which provides, in relevant part, as follows:


               (a) The court may revoke a person’s probation if:

                        (1) the person has violated a condition of probation during
                        the probationary period; and

                        (2) the petition to revoke probation is filed during the
                        probationary period or before the earlier of the following:

                                 (A) One (1) year after the termination of probation.

                                 (B) Forty-five (45) days after the state receives
                                 notice of the violation.

               (b) When a petition is filed charging a violation of a condition of
               probation, the court may:

                        (1) order a summons to be issued to the person to appear;
                        or

                        (2) order a warrant for the person’s arrest if there is a risk
                        of the person’s fleeing the jurisdiction or causing harm to
                        others.

               (c) The issuance of a summons or warrant tolls the period of
               probation until the final determination of the charge.

               (d) Except as provided in subsection (e), the court shall conduct a
               hearing concerning the alleged violation. . . .

                                                     *****

               (j) If the court finds that the person has violated a condition
               during any time before the termination of the period, and the
               petition is filed under subsection (a) after the probationary period
               has expired, the court may:



       Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018       Page 6 of 11
                         (1) reinstate the person’s probationary period, with or
                         without enlarging the conditions, if the sum of the length
                         of the original probationary period and the reinstated
                         probationary period does not exceed the length of the
                         maximum sentence allowable for the offense that is the
                         basis of the probation; or

                         (2) order execution of all or part of the sentence that was
                         suspended at the time of the initial sentencing.


[12]   The crux of Murphy’s appellate argument, however, is that the trial court was

       without jurisdiction to hold a probation revocation hearing on the First and

       Second Probation Revocation Petitions because it did not toll his probation

       pursuant to INDIANA CODE § 35-38-2-3(c).2 He contends that, in order for the

       trial court to have authority to hold a revocation hearing and make a final

       determination on an allegation within a revocation petition, the trial court was

       required to toll his probation under subsection (c) by issuing a summons or a

       warrant. The State, on the other hand, recognizes the language of subsection

       (c) but contends that the First Probation Revocation Petition “served the same

       purpose as a summons or warrant” and, as a result, tolled Murphy’s probation

       and would allow the trial court to retain jurisdiction to hold a revocation

       hearing on both revocation petitions. (State’s Br. 12).




       2
         Murphy no longer challenges the timeliness of the filing of the First Probation Revocation Petition under
       INDIANA CODE § 35-38-2-3(a) or the trial court’s determination that the State filed this first petition within
       forty-five days of receiving notice of the violation. He does, however, challenge the timeliness of the Second
       Probation Revocation Petition, arguing that the trial court should have dismissed it because the State alleged
       that he violated probation on a date after his probationary period had ended.

       Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018                       Page 7 of 11
[13]   The overriding issue in this interlocutory appeal is whether the trial court has

       jurisdiction or authority to hold a revocation hearing and enter a disposition on

       the First and Second Probation Revocation Petitions. To resolve this issue, the

       parties focus on whether the trial court had tolled Murphy’s probation pursuant

       to INDIANA CODE § 35-38-2-3(c). That focus, however, is misplaced because

       Murphy’s probationary period had already ended prior to the State’s filing of

       the two probation revocation petitions. We have explained that “tolling [under

       INDIANA CODE § 35-38-2-3(c)] does not apply to violations filed after the

       probationary period ends.” Davis v. State, 35 N.E.3d 261, 264 (Ind. Ct. App.

       2015) (citing IND. CODE § 35-38-2-3(b)-(c)). If the State files a notice of

       probation violation after a defendant’s probation has ended, as the State did

       here pursuant to subsection (a)(2) of the revocation statute, then “there [i]s no

       period of probation to be tolled, which means the trial court c[an] not continue

       [a defendant’s] terms of probation pursuant to Ind. Code § 35-38-2-3(c).” Id.

       Because Murphy’s probationary period had already ended, it could not be

       tolled.3




       3
         We recognize that our Court has stated that “[t]he purpose of I.C. 35-38-2-3(c) is to grant a trial court power
       to revoke probation and order a person returned to jail when it determines that such person violated
       probation, even though the disposition regarding that violation occurs after the original term of probation has
       expired.” Slinkard v. State, 625 N.E.2d 1282, 1284 (Ind. Ct. App. 1993). In Slinkard, however, the issue was
       whether probation had been tolled during a prior revocation proceeding that was filed during the
       probationary period that would have extended the probation for the subsequent revocation at issue. Here,
       however, Murphy did not have any revocation proceedings during the course of his probationary period that
       would have tolled his probation.

       Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018                         Page 8 of 11
[14]   Therefore, we turn to the relevant focus in this interlocutory appeal, which is

       whether the trial court has authority to hold a revocation hearing and enter a

       disposition on the revocation petitions. We recognize that “once a

       probationer’s term of probation has expired, the court loses jurisdiction over

       that person.” Hayes v. State, 590 N.E.2d 1116, 1118 (Ind. Ct. App. 1992), trans.

       denied. Nevertheless, “[t]he disposition regarding a violation of probation may

       occur after the probationary period has ended, but the violation must have

       occurred within the probationary period.” Trammell v. State, 45 N.E.3d 1212,

       1215 (Ind. Ct. App. 2015) (citing Dawson v. State, 751 N.E.2d 812, 814 (Ind. Ct.

       App. 2001)).


[15]   Indeed, the probation revocation statute sets out the trial court’s authority for

       holding a revocation hearing and entering a determination on a probation

       revocation allegation in a timely-filed revocation petition. “A statute must be

       held to mean what is clearly and plainly expressed therein.” Hayes, 590 N.E.2d

       at 1118. Subsection (a) makes clear that a trial court “may revoke a person’s

       probation” only “if the person has violated a condition of probation during the

       probationary period” and the revocation petition is filed either during the

       probationary period or after probation has ended but within the time periods

       contained in the statute. I.C. § 35-38-2-3(a). If there is a timely-filed revocation

       petition under subsection (a), subsection (d) mandates that a trial “court shall

       conduct a hearing concerning the alleged violation.” I.C. § 35-38-2-3(d)

       (emphasis added). At such hearing, the State is required to prove the violation

       by a preponderance of the evidence. See I.C. § 35-38-2-3(f). Additionally,


       Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018   Page 9 of 11
       subsection (j) sets forth the dispositional options a trial court has when it “finds

       that a person has violated a condition during any time before the termination of

       the period, and the petition is filed under subsection (a) after the probationary

       period has expired[.]” I.C. § 35-38-2-3(j). Thus, the trial court has the authority

       to hold a revocation hearing and enter a determination on a probation

       allegation but only if the two revocation petitions have met the timely-filing

       requirements of subsection (a).


[16]   Here, the trial court sentenced Murphy and placed him on probation on

       October 11, 2016. Therefore, his probationary period ended 180 days later on

       April 9, 2017.4 The State filed the First Probation Revocation Petition on May

       25, 2017, which Murphy does not dispute was within forty-five days of the State

       receiving notice that Murphy had allegedly failed to complete all of his

       probation requirements during his probationary period. Thus, the First

       Probation Revocation Petition complied with the requirements of subsection (a)

       and was timely filed. Pursuant to subsection (d), the trial court is required to

       “conduct a hearing concerning the alleged violation[s].” I.C. § 35-38-2-3(d).

       Because the trial court has authority pursuant to the revocation statute to hold a

       revocation hearing and to enter a determination on this timely-filed petition, the

       trial court did not abuse its discretion by denying Murphy’s motion to dismiss




       4
         We note that April 9, 2017 was a Sunday. Pursuant to Indiana Trial Rule 6(A), computation for the last
       day of a period of time prescribed by order of the court does not include a Sunday. Thus, under Trial Rule 6,
       the last day of Murphy’s probation would have technically been Monday April 10, 2017.

       Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018                     Page 10 of 11
       the First Probation Revocation Petition.5 We affirm the trial court’s judgment

       on the First Probation Revocation Petition and remand for further proceedings.


[17]   The trial court, however, abused its discretion by denying Murphy’s motion to

       dismiss the Second Probation Revocation Petition. This second petition did not

       comply with the requirements of subsection (a)(1) because it alleged that

       Murphy had violated a condition of probation on June 28, 2017, which was

       after Murphy’s probationary period had already ended. Because this Second

       Probation Revocation Petition was not timely filed, the trial court does not have

       authority to hold a revocation hearing on it. Accordingly, the trial court abused

       its discretion by denying Murphy’s motion to dismiss the Second Probation

       Revocation Petition, and we reverse the trial court’s judgment on this Second

       Probation Revocation Petition. See, e.g., Dawson, 751 N.E.2d at 815-16 (holding

       that the trial court improperly revoked a defendant’s probation where the

       allegation was based on an offense alleged to have occurred after the expiration

       of his probationary term).


[18]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       5
        Of course, the trial court could enter a determination only if it finds that the State meets its burden of
       proving the allegations in this first revocation petition by a preponderance of the evidence. See I.C. § 35-38-2-
       3(f).

       Court of Appeals of Indiana | Opinion 79A05-1709-CR-2319 | October 31, 2018                        Page 11 of 11
