Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                         Apr 15 2014, 10:04 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

JASON R. BARTON                                 GREGORY F. ZOELLER
New Castle, Indiana                             Attorney General of Indiana

                                                LARRY D. ALLEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

JASON R. BARTON,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 02A05-1307-CR-355
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable John F. Surbeck, Jr., Judge
                             Cause No. 02D06-1303-PC-57


                                      April 15, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

         Appellant-Defendant, Jason R. Barton (Barton), appeals the trial court’s denial of

his motion for immediate discharge from unlawful and illegal imprisonment.

         We affirm.

                                           ISSUE

         Barton raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion when it denied his motion.

                            FACTS AND PROCEDURAL HISTORY

         On January 7, 2008, the State filed an Information charging Barton with rape, a

Class B felony, and domestic battery, a Class A misdemeanor. On November 19, 2008, a

jury trial was conducted and Barton was found guilty as charged. On December 15,

2008, the trial court sentenced him to an aggregate sentence of fifteen years. Barton

appealed, challenging the sufficiency of the evidence. On August 20, 2009, we affirmed

Barton’s conviction. See Barton v. State, No. 02A05-0901-CR-7 (Ind. Ct. App., Aug. 20,

2009).

         On March 14, 2013, Barton filed a motion for post-conviction relief, which he

subsequently withdrew on September 9, 2013. The following month, on April 22, 2013,

Barton filed a motion to compel transcripts and records, which the trial court denied on

May 14, 2013 without a hearing. On June 10, 2013, Barton filed a motion for immediate

discharge from illegal and unlawful imprisonment.          On June 24, 2013, the State

responded to Barton’s motion. Three days later, the trial court denied Barton’s motion.



                                             2
       Barton now appeals. Additional facts will be provided as necessary.

                                 DISCUSSION AND DECISION

       Barton contends that the trial court abused its discretion by denying his motion for

immediate discharge. In his appellate brief, Barton appears to argue1 for his immediate

discharge on the basis that the trial court refused to release “the transcripts of the critical

stages of the proceedings” to aid him in preparing his motion for post-conviction relief.

(Appellant’s Br. p. 3). Barton asserts that these transcripts would establish that his

conviction should be vacated because (1) the probable cause affidavit, the charging

information, and a prior CCS “are incomplete” and defective; and (2) he was not

represented by an attorney at the probable cause hearing, the filing of the charging

information, and the initial plea hearing. (Appellant’s Br. p. 4).

       Although Barton fails to specify the exact transcripts he is seeking, the trial court’s

order indicates that Barton requested a transcript of the probable cause hearing. In this

regard, the trial court noted:

       The “hearing” referred to by [Barton] and found in the [c]ourt’s finding of
       probable cause was in fact an ex parte review of the Affidavit of Probable
       Cause. No evidence was taken or considered beyond that contained within
       the document entitled Affidavit of Probable Cause. No independent
       recording or record was made for the reason that there was nothing to make
       of record beyond the written document entitled Affidavit of Probable
       Cause.

(Appellant’s App. p. 17).




1
  Barton did not include his motion for immediate discharge from illegal and unlawful imprisonment in
the Appendix. We therefore attempt to piece together its contents based on the State’s response to
Barton’s motion, the trial court’s denial of Barton’s motion, and Barton’s appellate brief.


                                                 3
       We agree with the State that Barton’s confusion with respect to a transcript arises

from the two different methods for the presentation of a probable cause affidavit. Indiana

Code section 35-33-5-2 allows the filing of an affidavit, containing reliable information

about the person to be arrested, the offense committed, and the facts constituting probable

cause, with the trial court. In this instance, no hearing is required because the affiant

verifies and signs the document filed before the court in an ex-parte proceeding.

Alternatively, Indiana Code section 35-33-7-2 provides that a trial court may issue an

arrest warrant based on sworn testimony collected in a non-adversarial, recorded hearing.

The recorded hearing may be transcribed at the request of any party. Ind. Code § 35-33-

7-2.

       Here, a sworn affidavit was filed with the trial court and no recorded hearing took

place. See I.C. § 35-33-5-2. Therefore, as no transcript exists of the probable cause

affidavit and charging information, we affirm the trial court’s order denying Barton’s

motion for immediate release.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

by denying Barton’s motion for immediate discharge from illegal and unlawful

imprisonment.

       Affirmed.

VAIDIK, C. J. and MAY, J. concur




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